Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/09486/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On: 5th October 2016
On 3 November 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

The Secretary of State for the Home Department
Appellant

And

Anwarr Sied Mortlock
(no anonymity order made)
Respondent

For the Appellant: Mr McVeety, Senior Home Office Presenting Officer
For the Respondent: Dr Mynott, Counsel instructed by IAS (Manchester)

DECISION AND REASONS
1. The Respondent is a national of Jamaica date of birth 1st August 1977. On the 22nd January 2016 the First-tier Tribunal (Judge Evans) allowed his appeal against a decision to deport him under section 3(5)(a) of the Immigration Act 1971. The Secretary of State now has permission to appeal1 against that decision.
Anonymity
2. The Respondent is a foreign criminal. As such there is no good ground to conceal his identity and no anonymity direction is made.
Background
3. The Respondent arrived in the United Kingdom in February 2002. He had leave to enter as a visitor, and was then aged 25. By December of that year he had been convicted of the possession with intent of supply of two Class A drugs, namely crack cocaine and heroin. He and his co-defendant were each sentenced to six years' imprisonment.
4. The Respondent was released sometime in early 2005. On the 7th June 2005 the Secretary of State served upon him notice of an intention to deport him. the Respondent appealed that decision and on the 19th June 2007 a panel of the Asylum and Immigration Tribunal (Immigration Judge Irvine and Mrs G Greenwood, non-legal member) allowed his appeal with reference to paragraph 364 of the Immigration Rules.
5. The Secretary of State sought to appeal the decision. That appeal failed before the Upper Tribunal (Senior Immigration Judge Warr) and before the High Court (Wyn Williams J). The decision of the first instance Tribunal having been upheld, the Secretary of State was compelled to grant the Respondent a period of six months' discretionary leave. That leave was renewed on three subsequent occasions, so that the Respondent had permission to be in the United Kingdom until the 17th July 2014.
6. On the 30th July 2014 the Respondent applied for further leave to remain. On this occasion the Secretary of State responded by making a second decision to deport him, dated 13th April 2015. This decision was made with reference to the statutory framework for 'automatic deportation' of foreign criminals.
7. The Respondent appealed on Article 8 grounds and the appeal was allowed. Although the Respondent could not bring himself within one of the 'exceptions' in paragraphs 399 or 399A of the Rules, the Tribunal held that the public interest was outweighed by very compelling circumstances over and above those described therein. It is against that decision that the Secretary of State now brings this further challenge.
The Grounds of Appeal
8. The Secretary of State submits that the determination of Judge Evans contains the following material errors of law:
i) In finding there to be "very compelling circumstances" over and above those described in 399 or 399A the Tribunal appeared to give weight to the fact that the Respondent had earlier had his appeal against deportation allowed and had been granted four successive periods of leave to remain. The Secretary of State contends that this history was "not relevant" and that no legitimate expectation can have arisen from the temporary grants of leave;
ii) The finding that the Respondent had led an "exemplary" life was flawed because "the Judge appears to impermissibly conflate an absence of subsequent convictions with confirmation of an absence of continued criminality". It is submitted that there is a subtle but important difference between "no offences" and "no convictions";
iii) The finding that the Respondent is in a committed relationship "adds nothing to his side of the balance". It was not a matter capable of constituting a family life "over and above" the factors in 399 and 399A;
iv) The finding that the Respondent's Article 8 rights are stronger now than they were in 2007 is irrational given that his step-sons are now adults;
v) The finding that Article 8 is the same as it was in 2007 "fails to adequately grasp" that the Immigration Act 2014 has shifted the balance in terms of the public interest so that the outcome "must" be that the Respondent is deported. The Judge has "attempted to pile weight" on the Respondent's side of the scales without any consideration of how the public interest has changed since 2007
vi) There was no evidence or finding on whether the Respondent and his partner could not run their social enterprise from Jamaica;
My Findings
9. I start, as Mr McVeety did, with ground (ii). Mr McVeety started with that ground so that he could make it clear that he was not relying upon it. He confirmed that the Respondent has not been convicted of any criminal offence other than the one for which he was sentenced in December 2002. There was no evidence at all to suggest that he had ever committed any other offences, nor that he had had any adverse interaction with the police. It is extremely surprising, to say the least, to find the Secretary of State suggesting that the Tribunal should have somehow weighed in the balance the spectre that the Respondent was secretly still committing crimes. He is innocent until proven guilty. There was some discussion at hearing as to how long that principle had been part of the English common law. The earliest reference that I can find is to its codification in Roman Law in the 2nd century AD under Antoninus Pius.
10. The remainder of the grounds fall into two central complaints, about a) the way that the Judge approached the law and b) the way that the Judge approached the facts.
11. In respect of the law Mr McVeety argued that the Tribunal had to recognise that the statutory framework had changed since 2007. The public interest now assumed a very great weight and that is reflected in the way that the rules were drafted. I am unable to accept that the Tribunal was not cognisant of that. The determination begins by summarising the submission of the Presenting Officer Mr Richardson to the effect that the "historic criminality" had to be viewed through the prism of current legislation [at 8]. It then sets out s117B-117C of the Nationality, Immigration and Asylum Act 2002 [at 16] and the relevant immigration rule [at 17]. The arguments advanced by Respondent's counsel as to res judicata are expressly rejected [at 32] and the Judge accepts that Secretary of State's submission that the proper framework for analysis is paragraphs 398-399A of the Rules [at 25]. The Tribunal directs itself to the guidance in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 00702 and Chege (section 117D-Article 8 - approach) [2015] UKUT 00165 (IAC). It is abundantly clear from all of this that the Tribunal understood what it was being asked to do. It specifically accepts that it cannot simply reproduce the decision of the 2007 Tribunal and in considering whether the circumstances are sufficiently compelling weighs in the public interest [at 41-42] in accordance with Chege and indeed MF (Nigeria) [2013] EWCA Civ 1192. I reject the submission that the Tribunal "failed to grapple" with the new legal framework.
12. At paragraphs 34 and 35, having regard to Chege, the Tribunal notes that none of the following factors are capable of constituting "very compelling circumstances": the Respondent's long-standing relationship, his financial independence, his ability to speak English, his social and cultural integration into UK society.
13. What the Tribunal does is weigh the cumulative effect of the following. This man won his 2007 deportation appeal on the basis of findings of fact that are a Devaseelan starting point. The central and positive findings of fact made by that Tribunal have been proved correct. They accepted that he was a low risk of re-offending; he has led an "exemplary" life since and had not committed a criminal offence since 2002. His relationship with his partner was found to be a protective factor; this has been borne out by the strong and committed relationship that they continue to share whilst running their business of "considerable social value". That business, a social enterprise aimed at encouraging children in deprived areas of Manchester to celebrate education, is run by the Respondent and his partner. She is paid, he is not. It does not have sufficient funds to pay two salaries so he works for free, and at the date of the hearing had done so for some time. The Tribunal found the organisation's "continued existence is dependent upon the appellant providing unpaid administrative and organisational assistance to Ms Taylor, and more significantly, unpaid tailoring assistance". That latter reference was to the mini graduation gowns that the Respondent sews for children to wear in ceremonies at the end of term. The Judge finds that the Respondent's deportation would "highly likely" result in 'Young Graduate' going out of business: "this would be to the detriment of the deprived communities in which it works". The Tribunal further gave some weight to his finding that the emotional dependency between the Respondent and his partner "goes beyond the level" that would typically be found in a partnership. She had suffered the devastating loss of two of her grandchildren dying in 2012 and had given evidence as to her high degree of emotional dependence on him in the years that followed.
14. The Judge did not find, nor I think was it argued, that the successive grants of Discretionary Leave gave rise to any legitimate expectation on the Respondent's part that he would be allowed to remain in the United Kingdom. The Judge was however entitled to take into account the facts 'on the ground': during those successive grants of leave the Respondent deepened his ties with his family and community and helped establish a business which is providing great benefit to children in deprived areas of Manchester. It was not irrational to find that the Respondent's Article 8 ties were stronger today than they were in 2007. Article 8 ties are not confined to relationships with children. The Tribunal was bound in law to take account of all of the Respondent's relationships, his work, his friendships, his partner and his subsisting parental relationship with his now adult stepsons. There is no basis for a rationality challenge to those findings. Finally, the Secretary of State complains that the Tribunal did not consider whether the Respondent, his partner and their social enterprise would be able to relocate to Jamaica. It is true that express consideration was not given to that possibility. The focus of the decision was on the fact that this business is providing a measurable benefit to the community in the UK. That was one of the compelling reasons why the appeal was allowed.
15. I do not find this decision to contain any error of law.

Decisions
16. The determination of the First-tier Tribunal contains no error of law and it is upheld.
17. There is no order for anonymity.

Upper Tribunal Judge Bruce
16th October 2016