Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08868/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 16 March 2017
On 20 March 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

XIAOEN CHEN
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr L Kennedy, Advocate, instructed by Lester Dominic, Solicitors
For the Respondent: Mrs M O’Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The respondent decided to refuse the appellant’s human rights claim and to maintain her decision to deport him for reasons explained in her letter dated 29 March 2016, which also sets out his immigration and criminal history.
2. Designated FtT Judge Macdonald dismissed the appellant’s appeal for reasons explained in his decision promulgated on 15 November 2016.
3. The appellant applied to the FtT for permission to appeal to the UT, on grounds which in short are as follows.
A: the judge went wrong by relying on Chege [2015] 00165, which was not supported by Hesham Ali [2016] UKSC 60, promulgated after the FtT’s decision.
B: the judge mentioned NA (Pakistan) [2016] EWCA Civ only in passing, and failed to deal with the conjoined case of MY (Kenya), which was cited to him.
C: insufficient weight given to the element of economic hardship.
D: insufficient weight given to the low level of offending, and no weight given to low risk of re-offending.
E: little weight given to the mental health of the appellant’s wife and the burden imposed on their two adult sons.
4. Designated Judge Woodcraft refused permission on 5 December 2016, on the view that the judge correctly applied authority, and the grounds were mere disagreement with the result.
5. The appellant made an application to the UT for permission. This is mistakenly framed against the decision by Judge Woodcraft. In substance, it repeats the case put by the appellant at the hearing and in his further grounds.
6. UT Judge McWilliam granted permission on 24 January 2017:
It was not argued for the appellant that ¶399 of the rules applied. The case was presented on the basis that there were very compelling circumstances (¶398) over and above those described in ¶399 and 399A.
It is arguable that the judge did not make a finding about the risk of re-offending … [and] … that this was a material factor integral to the assessment.
Permission is granted on all grounds, but I observe that the case was not advanced on the basis that deportation would be unduly harsh (¶399).
7. A rule 24 response by the SSHD submits thus:
As noted in the grant of permission, the appellant did not advance a case that the unduly harsh test in terms of ¶399 was satisfied. The only issue identified in the grounds as amounting to very compelling circumstances which the judge did not take into account is the risk of reoffending.… its absence is immaterial in the absence of other compelling factors. As set out in Danso [2015] EWCA Civ 596 at ¶20:
“… protection of the public … is only one of the factors that makes it conducive to the public good to deport criminals. Other factors include the need to mark the public’s revulsion at the offender’s conduct and the need to deter others … rehabilitation … cannot in my view contribute greatly to the existence of very compelling circumstances required to outweigh the public interest in deportation”.
8. Mr Kennedy initially relied upon the written outline of his submissions, which is detailed and comprehensive. This rehearses factors said to outweigh the public interest in deportation under a series of headings: sentence at the lowest level of the statutory threshold; circumstances of the offence, “wilful blindness” with no aggravating circumstances; significance of relative [lack of] gravity of offending; MY (Kenya), no consideration that offending at the lower end of the scale correlates to moderating of the public interest considerations; low risk of reoffending, borne out by the social work report, not addressed by the judge; low risk of reoffending part of the “very compelling circumstances” in the particular circumstances of the case; pressing family circumstances; psychiatric evidence, serious mental health condition of the appellant’s wife; complex family needs; special relationship of dependency; reflected economic hardship; immigration status of the immediate family; the test as explained in Hesham Ali.
9. Summing up on error of law at paragraphs 52 to 54 it is said that the judge went wrong by holding a low-level drug supply conviction to justify deportation, failing to give sufficient weight to the extenuating family circumstances, and inadequately considering the case law. The conclusion sought at paragraphs 55 to 57 is that in the unusually pressing circumstances of the case and its very particular facts, the appellant’s deportation is unduly harsh and disproportionate, and the appeal should be allowed.
10. Mrs O’Brien adopted the rule 24 response, and submitted further as follows. The grounds and submissions were an articulate further exposition of the case on the merits for the appellant, but no more than that. The grant of permission was on the point about reoffending, but that derived from the dissenting judgement in Hesham Ali by Lord Kerr. The judgement of the majority, in particular by Lord Wilson at paragraph 69, was to contrary effect. The appellant made much of the mental health of his wife, but she had travelled regularly between China and the UK and would have a choice where to reside if he were deported. All cases turned ultimately on their own facts, but the circumstances here much weaker than those in MY (Kenya) and in MA (Pakistan). In MY the Court observed that the upper tribunal might justifiably have decided either way. It was easy to see why the judge in this case came down on the side he did.
11. Mr Kennedy in response said that although the sentencing judge and the first-tier tribunal judge thought the appellant to be “no stranger to the law”, he could not be characterised as a persistent offender. His wife would be put to economic hardship and to a difficult choice between moving to China with her husband or remaining in the UK with their two adult sons. Depression was an illness along a wide spectrum, and the indications appeared to be that hers was at the serious end. The observations of Lord Wilson at paragraph 69 of Hesham Ali did not imply that there was no scope for taking the relative risk of reoffending into account in the final balance. The social work report did not reach a definite conclusion but it made no finding of medium or high risk, and could only sensibly be read as a finding of low risk. It had been submitted that the appellant continued to deny his offending but he did accept it to the standard required for conviction and sentence to proceed, and that was guilt at the level of wilful blindness only.
12. I reserved my decision.
13. The judge recorded at ¶44 that the submissions for the appellant emphasised the sentence being at the minimum statutory point for present purposes and the low risk of re-offending. He took account at ¶53 of the inevitable disruption of family life, at ¶55 of the effect on the appellant’s wife, and at ¶56 of her psychiatric history as the high point of the case. He ended at ¶57:
“Viewing all the points in the skeleton argument … cumulatively … the circumstances fall very far short of [being] compelling let alone very compelling”.
14. The judge took account of everything advanced for the appellant and reached an unsurprising outcome, which discloses no error of law.
15. With all respect to the very fully presented grounds and submissions, they are only insistence and disagreement: points to be made in the FtT, but not such that to decide to the contrary was a legal error.
16. The foregoing is sufficient to dispose of this appeal. Further, if it is perhaps conceivable that another judge might have gone a little further up the scale, such unfortunate aspects as there are in the outcome are inherent in such cases. It is hard to imagine that any judge might have reached a sustainable finding that the facts passed the test of very compelling circumstances, over and above those envisaged by paragraphs 399 or 399A of the rules.
17. In the alternative, if the case had disclosed some error of approach such as to require a fresh decision, I would have found that even on the most favourable view of the facts for the appellant they plainly fall short of very compelling circumstances, over and above those envisaged by paragraphs 399 or 399A of the rules. I would have dismissed the appeal.
18. The determination of the First-tier Tribunal shall stand.
19. No anonymity direction has been requested or made.

16 March 2017
Upper Tribunal Judge Macleman