Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07929/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 March 2017
On 12 April 2017

Before

THE HONOURABLE MR JUSTICE MITTING
UPPER TRIBUNAL JUDGE MCGEACHY

Between

THE Secretary of State FOR THE Home Department
Appellant
and

[R W]
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondent: Mr G Davison, Counsel instructed by Nandy & Co

DECISION AND REASONS
1. [RW], the respondent in this appeal, is a 46 year old Jamaican national who has lived in the United Kingdom without any right to do so since 1 October 1997. An unsuccessful attempt was made to remove him in 2005 but nothing effective has ever been done to do so.
2. On 30 June 1999 he was arrested for possession of cocaine with intent to supply and offering to supply it. He was, it seems, a retail dealer in cocaine. He was not convicted of the offence until 21 March 2002 when he was sentenced to 21 months’ imprisonment. He has two other convictions in 2002 for failing to surrender to bail and in 2003 for simple possession of cannabis for which he was fined. He has never officially worked. He has established a somewhat complicated private and family life. He formed a relationship with Ms Grant, a British citizen, in 2003, then another with Ms Tubb, also a British citizen, until in February 2008 he returned to Ms Grant, whom he married in August 2013. Meanwhile on 15 November 2008 Ms Tubb gave birth to his child, M, a British citizen. She already had another daughter by another man, [C], whom he treated as a stepdaughter while he was with Ms Tubb. The respondent does not live with either child and for a time Ms Tubb sought to prevent him from seeing both of them. Because of his conviction and sentence for drug trafficking, he was liable to be deported. A decision to make a deportation order against him was made by the Secretary of State, the appellant, on 29 July 2015. He was invited to make representations as to why he should not be deported and did so on 25 August 2015. He claimed that his deportation would infringe the right to respect for private and family life of himself, his elder daughter Whitney, born to a Ms Hutchinson on 7 February 1993, presumably therefore while he was not in the United Kingdom, his wife Ms Grant and his younger daughter M and his stepdaughter [C] under Article 8 of the European Convention on Human Rights.
3. By a letter dated 1 December 2015 the appellant notified the respondent of her decision to refuse to revoke the deportation order and of his right to appeal against that decision from within the United Kingdom. He did so. His appeal was heard by First-tier Tribunal Judge Davey on 16 and 17 June 2016. By a decision and reasons promulgated on 26 September 2016 he allowed the respondent’s appeal. He dismissed the respondent’s appeal on all grounds save one, that the respondent had a genuine and subsisting parental relationship with M and it would be unduly harsh for her to live with him in Jamaica if it were possible to remove her there, or to remain in the United Kingdom without him. He found that the respondent kept in daily telephone contact with M, visited her periodically including occasions when she and [C] went to stay with the respondent’s mother, a long term lawful resident of the United Kingdom. He accepted as “compelling” the evidence of Ms Grant and Ms Tubb and other family members that he was a good father to M and [C], and he allowed the appeal under Rule 399A of the Immigration Rules, having correctly set its terms out in the relevant part of his judgment. He did not however refer to Section 117C of the Nationality, Immigration and Asylum Act 2002 which he was bound to apply. However, because Section 117C is in all material respects identically worded to Rule 399, that error was not material, and as Lord Justice Elias in MA (Pakistan) [2016] EWCA Civ 705 said at paragraph 32 of his judgment the interpretation of the phrase “unduly harsh” in Section 117C(5) is the same as in Rule 399. As he observed “unduly harsh is an ordinary English expression. As so often, its meaning is coloured by its context”. In paragraph 24 he went on to observe that the court was steered towards a proportionate assessment of the criminal’s deportation in any given case by Section 117C(2).
4. Mr Tufan for the Secretary of State submits that Judge Davey went wrong in two respects. First his conclusion clearly stated, as it was, was inadequately reasoned, and secondly, he did not face up to or give effect to the high threshold posed by the statutory test.
5. It would have been in our judgment preferable if Judge Davey had analysed with greater care and in greater detail the circumstances which led to the conclusion which he stated briefly in paragraph 28 of his decision.
“I find that it would be unduly harsh for M, even if it was possible, to be required to be transplanted to Jamaica to a wholly new environment, the loss and trauma of losing friends, the breakup of her education and a lack of respect for her British nationality from which she is at an age where she is entitled to expect respect for it. Further, I find it would be unduly harsh for her, given the evidence of the close relationship she has with the appellant to be remaining in the United Kingdom without the appellant”.
6. That single sentence of the critical part of his decision was however preceded by an analysis of the relationship which the respondent had with M and by his acceptance in paragraphs 16, 17 and 20 of the evidence of the witnesses called on behalf of the respondent that it was a close and loving parental relationship even though he did not live in the same household as M and lived separate from her mother. He also expressly directed himself that the public interest in removing the respondent as a convicted foreign criminal was high and also again, correctly directed himself that a relevant factor in the exercise that he had to perform was the Secretary of State’s delay over many years in removing this foreign criminal.
7. Against that background we have come to the conclusion just that the reasoning was adequate. We would hope that in any future case if this issue were to arise that fuller reasons would be set out but we are unable to say that the reasoning is so spare as to amount by itself, and on that ground only, to an error of law.
8. The next question then is whether or not the judge faced up to the high hurdle posed by the statutory test. It is unnecessary to cite authority for the proposition that the hurdle is high but the words “unduly harsh” necessarily import a high threshold.
9. Against the findings of fact to which we have referred, and despite the absence of a more detailed analysis of the impact which the departure of the respondent would have upon M, we are driven to the conclusion, just, again that the judge did apply the statutory test and did face up to the fact that it imposed a high hurdle. Again, we would have preferred to see more detailed reasoning, in particular about the factors which we have already mentioned, namely the detailed impact of the respondent’s removal upon M, but we are unable to say that the judge made an error of law in the approach which he adopted to the facts which he found. He did apply the statutory test, albeit not under the provision of primary legislation and he did reach a conclusion which we are unable to categorise as perverse. This is a classic instance of a decision being made which many, perhaps even the majority of FTT Judges would not have made. It does not follow for that reason alone that the decision was premised upon or contained any error of law and for those reasons the appeal must be dismissed.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant’s daughter M is granted anonymity. No report of these proceedings shall directly or indirectly identify her. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 28 MARCH 2017

Mr Justice Mitting