Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/09673/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 25 October 2016
On 27 October 2016

Before:

UPPER TRIBUNAL JUDGE GILL

Between

Secretary of State for the Home Department

Appellant

and

S E
(ANONYMITY ORDER MADE)

Respondent

Anonymity

I make an order under r.14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 prohibiting the disclosure or publication of any matter likely to lead members of the public to identify SE's children. I take the view that disclosure of SE's name risks disclosing the identity of her children. I therefore issue an anonymity order which extends to SE. No report of these proceedings shall directly or indirectly identify her.
This direction applies to both parties. Failure to comply with this direction could lead to contempt of court proceedings.
The parties at liberty to apply to discharge this order, with reasons.

Representation:
For the Appellant: Mr L Tarlow, Senior Presenting Officer.
For the Respondent: Mr T Bahja, of Counsel, instructed by Anthony Ogunfeibo & Co. Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department (the "Secretary of State") against a decision of Judge of the First-tier Tribunal Saunders (hereafter the "judge" unless otherwise stated) who, following a hearing on 29 February 2016, allowed the appeal of SE (hereafter the "claimant"), a national of Jamaica born on 9 April 1980, on human rights grounds (Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)) against a decision of the Secretary of State of 12 October 2015 by which she refused to revoke a deportation order made on 16 June 2009 under section 5(1) of the Immigration Act 1971.
2. The deportation order was signed after the claimant exhausted her appeal rights following the dismissal of her appeal in a decision promulgated on 3 February 2009 by a panel of the First-tier Tribunal (Immigration Judge Freestone and Ms PL Ravenscroft) against a decision to make a deportation order of 1 October 2008.
3. The Secretary of State's decision to make a deportation order followed the claimant's conviction on 10 August 2006 at Portsmouth Crown Court of an offence of possessing Class A controlled drugs (crack cocaine and heroin) with intent to supply and supplying Class A controlled drugs (crack cocaine) to another and sentence of 5 years' imprisonment passed on 11 September 2006.
4. The claimant arrived in the UK in 2000 without a visa and has remained in the United Kingdom illegally throughout. She has three daughters, born (respectively) on 28 February 2004, 11 September 2011 and 2 February 2016 (hereafter "D1", "D2" and "D3" respectively)". By the date of the hearing before Judge Saunders, D2 had been registered as a British citizen. The judge accepted that the claimant intended to make an application for D1 to be registered as a British citizen but could not raise the necessary funds to make such an application. The judge treated D1 as a person whose position was akin to a British citizen, i.e. as de jure a British citizen, although she also said that she noted that D1 was presently a Jamaican national.
5. Before the judge, the claimant placed reliance upon Ruiz Zambrano [2011] EUECJ C-34/09. The judge's attention was not drawn to the Opinion of Advocate General Szpunar in Marin v Administracion del Estado, Secretary of State for the Home Department v CS (articles 20 TFEU and 21 TFEU-Directive 2004/30/EC), joined cases C-165/14 and C-304/14, delivered on 4 February 2016. At para 8 of her decision, the judge said that she became aware of the Opinion in Marin after the hearing, as a consequence of which she gave the parties an opportunity to file written submissions as to the effect of the Opinion on the appeal. She stated that she received submissions from the claimant's solicitors but nothing from the Secretary of State despite allowing an extended time of approximately two weeks after the stated deadline to take account of the Easter holiday period.
6. The judge noted that, as the claimant had been sentenced to a term of imprisonment of more than four years, it was necessary for her to show that there were very compelling circumstances over and above those described in Exceptions 1 and 2 provided for in s.117C(4) and (5) of the Nationality, Immigration and Asylum Act 2002 (the "2002 Act") and which are reflected in para 398(c) of the Statement of Changes in the Immigration Rules HC 395 (as amended) (hereafter referred to individually as a "Rule" and collectively the "Rules").
7. The judge found that the claimant had shown that very compelling circumstances existed over and above those contained in Exceptions 1 and 2. She gave her reasons at paras 18-38 of her decision. In relation to D2's right to reside in the territory of the EU and the principle established in Zambrano, the judge found that, if the claimant were to be deported, the three children would be forced to return to Jamaica with her. Importantly, she stated that Mr O'Monaghan (the Secretary of State's representative before the judge) explicitly accepted in his submissions that the children would be forced to return to Jamaica with the claimant. Their fathers were absent and D1's elderly paternal uncle, whilst a not-insignificant presence in her life, had shown himself incapable of caring for her full time. She found that it would be unduly harsh for D1 to live apart and in a different country from her mother and sisters and that it was equally self-evident that the younger girls need to be with their mother also, as well as with each other.
8. At para 35, the judge found that, being a British citizen, D2 was to be regarded as an EU citizen, following Zambrano, and that if she were to leave the UK with her mother, her right to reside in the EU would be interrupted and she would lose the genuine enjoyment of the substance of her rights as a Union citizen, as least until she is able to travel to the UK independently as an adult.
9. In relation to D1, the judge noted her "de jure entitlement to British citizenship" and treated the decision in Zambrano as again relevant to the broader proportionality exercise.
10. In relation to the Opinion in Marin, the judge said, at para 37, that she considered that the Opinion potentially shifted the proportionality exercise to align the position of a third-country national who is a Zambrano-carer and who faces deportation with current EU protection against removal of EEA nationals, by requiring an assessment of whether the third-country national poses a "genuine, present and sufficiently serious threat to one of the fundamental interests of society" so as to "exceptionally" permit deportation in line with the enhanced protection of the "imperative grounds of public security" presently applicable to EEA nationals with 10 years' continuous residence.
11. The judge went on to find (at para 38), that there was an "extremely low likelihood" of the claimant reoffending in the future and that the passage of time since the decision in the previous appeal of the claimant meant that her own conclusions on the issue were permissibly different from those of the previous Tribunal whose conclusions were now outdated. Accordingly, she said that she did not find that the claimant can now be said to pose a genuine, present and sufficiently serious threat to one of the fundamental interests of society, even though she did in the past. The judge said that she found that this was an important additional consideration to be applied in making her overall proportionality assessment under Article 8, at the same time stressing that she did not treat this as determinative and that her overall approach was still framed by Part V of the 2002 Act and the Rules.
12. The judge summarised her conclusions at para 39. Whilst I consider it helpful to quote para 39 at this juncture, I stress that it is nevertheless necessary to read (as I have) the entirety of the judge's decision to appreciate the full breath and extent of her reasoning and findings. Para 39 reads:
"? I conclude that [the claimant] has shown that very compelling circumstances exist over and above those contained in the Exceptions set out in section 117C(6), and including paragraphs 390A and 398(c). This is because, notwithstanding the onerous public interest presumptions and considerations in favour of deportation contained in the relevant legislation, Rules and caselaw which I have applied with care, there are several very weighty factors which collectively I find amount to very compelling circumstances over and above those Exceptions contemplated. These include, in summary, the very compelling psychological and practical best interests of the children, including those of [D1], coupled with the very considerable damage to these best interests if deportation occurs; the profound impact upon the EU rights of [D1] and [D2] if deported to Jamaica with their mother; the [Secretary of State's] delay in seeking to deport [the claimant] during which time many of the children's ties took root; the demonstrably successful efforts of [the claimant] to rehabilitate herself since her release into the community in October 2008, such that she is no longer a present or genuine society's fundamental interests. All these matters lead me to the conclusion that there has been such a material alteration in the situation of [the claimant] that the deportation should be revoked."
The grounds
13. The main point which emerges from the grounds is that the judge erred in the weight she gave to the Opinion in Marin and that the application of the "imperative grounds" protection to a third-country national who is a Zambrano carer is inconsistent with the Directive itself. It is contended that, despite the fact that the judge had said that she had not treated the Opinion in Marin as being determinative, she had in fact applied too high a standard against deportation as a consequence than is demanded by Article 8.
14. The remaining grounds may be summarised as follows:
(i) The judge failed to identity anything compelling over and above the Exceptions listed in s.117C or paras 399 or 399A of the Rules and that it is difficult to see how the factors identified in allowing the appeal differ in any way to those listed in the exceptions. The judge had failed to identify anything which was exceptional about the instant case.
(ii) In this regard, the grounds draw attention to the following:
(a) The starting point is that deportation is in the public interest.
(b) The judge had attempted to reduce the public interest or mitigate it in some way and in so doing undermined the Rules.
(c) The judge had ignored the deterrent effect of deportation, society's expression of revulsion and the need to build and maintain public confidence in the treatment of foreign criminals. The grounds contend that a low risk of re-offending does not in a normal case reduce the public interest.
(d) It had not been established that it would be unduly harsh for the children to relocate to Jamaica and that the judge had erred in placing the interests of the children over and above that of the public interest because her reasoning concentrated solely on the interests of the children. It is contended that the correct approach was that a child's best interests were "a primary consideration" not "the" primary consideration
Submissions
15. At the hearing, I referred Mr Tarlow to para 8 of the decision of the judge from which it was clear that the Secretary of State had failed to submit her representations on the Opinion in Marin. I asked Mr Tarlow whether the Secretary of State was attempting belatedly to advance arguments in this respect that she should have advanced to the judge. I also asked Mr Tarlow to address me on the question whether, even if the judge had erred in proceeding to apply the Opinion in Marin, the error was material.
16. Mr Tarlow informed me that that he could only say that he relied upon the grounds. It was the Secretary of State's position that the Zambrano principle is not determinative in a deportation case and that the criminality of individual concerned must be taken into account. I asked Mr Tarlow whether it was the Secretary of State's case that the judge had failed to take into account the criminal convictions of the claimant and the public interest considerations that arose on account of her criminal convictions. Mr Tarlow replied to say that he could only rely upon the grounds.
17. I then informed Mr Bahja that I did not need to hear from him. I announced that there was no material error of law in the decision of the judge which would stand for reasons to be writing in writing, which I now give.
Assessment
18. I shall first deal with the issue taken in the grounds in relation to the judge's application of the Opinion in Marin. The grounds attempt to take an argument that should have been made to the judge. It is plain that the judge gave both parties an opportunity to address her on the issue. Whilst the claimant's solicitors lodged their submissions, the Secretary of State failed to do so notwithstanding that the judge extended the deadline by two weeks. In my view, it would be simply unfair and unjust to permit the Secretary of State to take a point on appeal that may potentially be determinative when she failed to take the opportunity she was given in the proceedings before the First-tier Tribunal to advance the point. This is not a question of the Secretary of State being punished for failing to comply with the judge's directions but an acknowledgement of the fact that it does little to an independent observer's perception of the fairness of the proceedings before the Upper Tribunal if the Upper Tribunal were to permit the Secretary of State to take a point on appeal that she was given an opportunity to take before the First-tier Tribunal but failed to do so.
19. In any event, I am satisfied that, even if the judge had erred in applying the Opinion in Marin, the error is not material to the outcome, given the many cogent reasons that the judge gave for reaching her overall conclusion. In saying this, I refer to the entirety of the judge's reasoning and findings, set out at paras 18-36 of her decision. Her decision speaks for itself and I consider it unnecessary for me to repeat at length her assessment or findings. It is self-evident from paras 18-36 that her assessment was not only very detailed, it was fair and balanced. She did not leave out of account any relevant factors contrary to the assertions to the contrary in the grounds. For example, in relation to the grounds as summarised at my para 14(ii)(a)-(d) above and using the same numbering as at my para 14(ii)(a)-(d):
(a) Not only did the judge state at paragraph 28 that she reminded herself, pursuant to Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 of the "very great "potency" of the public interest in deportation appeals", she said in terms at para 29 that she had this "starting point" firmly in mind.
(b) The suggestion that the judge attempted to reduce the public interest or mitigate it in some way and so undermined the Rules can only be a reference to para 24 of the decision where the judge drew attention to the fact that there was considerable delay in taking deportation action against the claimant since she exhausted her appeal rights in February 2009, over 7 years previously. There is nothing else in the remainder of the decision which can support the submission that she "attempted to reduce the public interest or mitigate it in some way".
However, on the issue of delay, the judge said, at para 24, that whilst the Secretary of State had pointed towards non-cooperation by the claimant, there was no evidence to support the claim that the claimant was responsible for the delay. The judge gave her reasons for finding that a significant portion of the delay in executing the deportation orders against the claimant and D1 was attributable to unexplained inaction and confusion by the Secretary of State.
It is evident from the judge's decision that the significance of the delay in this particular case is that: (i) it enabled D1 to strengthen her ties in the UK, such that, although she lost her appeal in 2009, she had by the time of the appeal before the judge lived in the UK for a period since her birth sufficient to be entitled to British citizenship upon an application for registration; (b) that, in the intervening period, D1 had forged ties in the UK such that it would be extremely distressing, confusing and disruptive for her to leave the UK now, given her age, long residence, integration and personal ties (para 36 of the decision); and(c) during the period of the delay, the claimant had two more daughters one of whom is also a British citizen and who has been registered as a British citizen.
If the submission that "the judge attempted to reduce the public interest or mitigate it in some way and so undermined the Rules" is a reference to an issue other than the Secretary of State's delay, I could find nothing else in the decision to support the submission which (if maintained) demonstrates (in my view) a failure to appreciate the reasons the judge gave for allowing the appeal. To the contrary, it is clear from paras 28-30, in particular, that she considered the specific public interest considerations that were engaged in the case and stated that there was a very strong public interest in deporting the claimant. She said in terms, at para 39, that "the balancing exercise thus begins with all of these extremely important considerations weighing very heavy in the balance, at the outside, against [the claimant]".
(c) The judge took into account, in terms at para 30, the deterrent effect of deportation and the need to express society's revulsion. It is clear from para 29 that she took into account the maintenance of immigration control, because she referred to this consideration in terms.
(d) The submission in the grounds that it had not been established that it would be unduly harsh for the children to relocate to Jamaica simply ignores the judge's reasoning; in particular, at paras 35-36 of her decision. At para 33, she specifically said that the best interests of the children were a primary consideration, not the primary consideration. It is not the case that the judge concentrated solely on the interests of the children. She considered other factors, such as the Secretary of State's delay.
20. I turn now to the submission in the grounds that is summarised at my para 14(i). In relation to the submission that it is difficult to see how the factors identified by the judge in allowing the appeal differ in any way to those listed in Exceptions 1 and 2, we now have the benefit of the judgment of the Court of Appeal in NA (Pakistan) v SSHD [2016] EWCA Civ 662. It is clear from paras 28-30 of NA (Pakistan), in particular, that the submission that the judge failed to identify factors that differ from those listed in Exceptions 1 and 2 is misconceived. Although the judge did not have the benefit of the judgment in NA (Pakistan), it is nevertheless plain from her decision that she found that the factors identified in Exceptions 1 and 2 that were applicable in the claimant's case "were of an especially compelling kind ? going well beyond what would be necessary to make out a bare case in Exceptions 1 and 2" so as to amount to very compelling circumstances over and above those described in Exceptions 1 and 2. Indeed, she said, in terms at para 39, that there were "several very weighty factors" which collectively amount to very compelling circumstances over and above those Exceptions. For example, that D2 would be deprived of education and would also lose her right to reside in the EU until she is able to travel as an independent adult and that D1 has forged relationships in the UK in the formative 7-year period since the last previous, a period during which the Secretary of State delayed in effecting removal.
21. For all of these reasons, I have concluded that the judge did not err in law. The Secretary of State's appeal is therefore dismissed. The decision of the judge stands.

Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

Signed Date: 25 October 2016
Upper Tribunal Judge Gill