Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/09604/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 April 2017
On 24 April 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

the secretary of state for the home department
Appellant
and

byron samuel hall
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Ms Ahmad, Senior Home Office Presenting Officer
For the Respondent: Mr Ume-Ezeoke, instructed by Charles Ete & Co, Solicitors

DECISION AND REASONS
1. I shall refer to the appellant as the respondent and the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, Byron Samuel Hall, was born on 26 March 1976 and is a male citizen of Jamaica. The appellant is subject to a deportation order made under Section 5(1) of the Immigration Act 1971. The appellant had been granted British citizenship in 2009. In 2003, police in the United States of America notified the Secretary of State that the appellant had been convicted in 2001 of sexual assault of a minor. In consequence, a decision was taken to deprive the appellant of his British nationality. He appealed against that decision unsuccessfully in December 2014. The parties are agreed that the appellant continues to have indefinite leave to remain in the United Kingdom but that he is no longer a British citizen. On 20 August 2015, a decision was made to deport the appellant to Jamaica and that decision was made on the basis that the deportation of him was conducive to the public good under Section 3(5)(a) of the 1971 Act. Whilst the decision letter of the respondent dated 14 October 2015 makes it clear that the appellant was being deported on “conducive” grounds, the analysis contained in the letter refers to paragraphs 398 and 399 of HC 395 (as amended) paragraphs which apply to “a foreign criminal” as defined by Section 32 of the UK Borders Act 2007. The appellant is not a “foreign criminal” as defined because he has never been sentenced to a period of at least twelve months’ imprisonment in the United Kingdom.
2. Allowing the appellant’s appeal, in a decision promulgated on 11 August 2016, Judge Fowell found that the appellant was not a “foreign criminal” and noted (applying Olo and Others (paragraph 398 – foreign criminal) [2016] UKUT 00056) that, as a consequence, the respondent was “not required to consider those Rules [paragraphs 398 and 399] in her decision.” Accordingly, Judge Fowell went on to consider Article 8 ECHR. He observed [48] that the appellant had “fully taken on the role of father to his stepchildren” (who were aged between 16-25 years old). The appellant and his wife also have a child of their own (aged 9 years). The judge found that the appellant was not a ‘very considerable risk’ to society [49] and that he enjoyed a family life with his wife and stepchildren and their own natural child. The judge had regard to a psychologist’s report which indicated that the removal of the children with the appellant and his wife to Jamaica would have an adverse effect upon them. At [57], Judge Fowell wrote:
The statutory considerations in Section 117B of the 2002 Act have been set out above. Section 117B(6) essentially provides that there is no public interest in removal if there is a genuine and subsisting relationship with a qualifying child (as here) and it would not be reasonable for that child to leave the UK. The upshot is that even if the appellant were a foreign criminal as defined, the public interest would not require his removal. While as a matter of logic this does not apply to him, it is perverse to suggest that the public interest in deportation is stronger because the appellant falls outside this definition.
3. The judge then went on to observe that “It should not be therefore necessary to consider the other factors in Section 117B”. Further, before the passage at [57] which I have quoted above, the judge observed [55] “I have not set out a full assessment for each child for the purposes of the duty under Section 55 of the 2009 Act ... [but] a period of seven years was regarded as the turning point ... exceeded for both of the two younger children here.”
4. The problem with the judge’s decision (as the grounds of appeal indicate) is that he has failed to apply the provisions of Section 117B(6) accurately. Even though the appellant may not be a “foreign criminal” as defined by the 2007 Act, he remains a person “liable to deportation”; Section 117B(6) opens with the words, “In the case of a person who is not liable to deportation, [my emphasis] the public interest does not require the person’s removal ...” Section 117B(6), therefore, does not apply to the appellant who is a person liable to deportation. Mr Ume-Ezeoke, for the appellant, sought to persuade me that the appeal had been allowed on the basis of the appellant’s private life and that the judge’s findings on private life were separable from the family life findings which he acknowledged may have been damaged by the judge’s incorrect application of Section 117B(6). I do not agree with that submission. The judge has not stated in terms that the appeal is allowed on the basis of the appellant’s private life; indeed, my reading of paragraphs [55-58] clearly indicates that Judge Fowell felt that he was able to cut short any further analysis simply because the fact that the appellant had a genuine and subsisting relationship with a qualifying child, in effect, trumped any negative considerations. Even if the application of Section 117B(6) may not have constituted the totality of the judge’s reasoning, it plainly played a very significant role in that reasoning. Accordingly, I find that the decision is unsafe.
5. Finally, for completeness I find that the Secretary of State did not act unlawfully by referring to paragraphs 398 and 399 in circumstances when the appellant was not a foreign criminal. Many of the considerations under those paragraphs were highly relevant to the making of the Secretary of State’s decision and the subsequent appeal on Article 8 ECHR grounds.
6. I understand that the appellant’s circumstances may have changed since the decision in the First-tier Tribunal so there will, therefore, need to be a new fact-finding exercise. Such an exercise better is conducted in the First-tier Tribunal to which this appeal is now remitted.

Notice of Decision
7. The decision of the First-tier Tribunal which was promulgated on 11 August 2016 is set aside. None of the findings of fact shall stand. The appeal is remitted to the First-tier Tribunal (not Judge Fowell) for that Tribunal to remake the decision.

No anonymity direction is made.

Signed Date 21 April 2017

Upper Tribunal Judge Clive Lane