Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/12052/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 5 September and 12 October 2016
on 20 October 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

S OLAYINKA
(Anonymity order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Ms A Darvishzadeh of Ethnic Minorities Law Centre, Edinburgh
For the Respondent: on 5 September Mrs M O'Brien and on 12 October Mr A Mullen, Senior Home Office Presenting Officers

DECISION AND REASONS
1. The appellant, a citizen of Nigeria, appeals against a determination by Designated Judge Macdonald, promulgated on 12 February 2016, dismissing his appeal against a deportation order. He has not asked for anonymity.
2. The appellant was previously subject to a deportation order, based on the same offending, made on 3 November 2010. The Upper Tribunal allowed his appeal against that order on 4 August 2011 on family life grounds, following which the respondent granted him discretionary leave, valid from 22 August 2011 until 22 August 2014. The appellant applied for further leave on or around 27 August 2014. The circumstances of his family and private life were essentially unchanged, and he had not re-offended. The respondent made the further deportation order against which these proceedings were brought, dated 14 and served on 17 September 2015.
3. The appellant's grounds are in summary (1) error in categorising the appellant's immigration status, rooted in his relationship with his partner, as "precarious"; (2) misinterpretation of sections 117B and C of the 2002 Act as "mandatory" rather than as a point of reference; (3) error in leaving out of account the decision of the Upper Tribunal when assessing "undue harshness" and "very compelling circumstances"; (4) error in taking "very compelling circumstances" at face value, and failing to conduct the proportionality analysis upon which the compatibility of the rules with Article 8 rests; (5) in effect treating the Razgar approach as erroneous; and (6) failing to apply Devaseelan so as to treat the UT decision as determinative.
4. In course of submissions on 5 September I observed that it would be useful to know whether the respondent has any policy regarding further leave based on family and private life where such leave has been previously granted following a successful appeal to a tribunal. Representatives advised me that they were not aware of such policy, but neither was able to say that their research had been comprehensive.
5. I decided to adjourn the proceedings and gave oral directions, to be supplemented in writing, for both parties to advise prior to the next hearing whether there is any relevant policy.
6. While preparing the directions in writing I observed that paragraph 7 of the respondent's decision refers to Chapter 13 of the Immigration Directorate Instructions (IDI's) Article 8 Guidance section 7.4, which provides that further leave of this nature will be granted only if an applicant "qualifies under the Article 8 provisions set out in paragraphs 398 to 399A."
7. The directions as issued in writing said that there might be other relevant materials on how the respondent generally applies tribunal outcomes in favour of appellants, and on how successive applications based on such leave are to be approached. Parties were to advise each other and the UT, not less than 2 working days prior to the next hearing, of any other relevant policy or guidance which they could identify.
8. A letter dated 7 October from the appellant's representatives advised that research had unearthed no further relevant policy. The appellant referred to Saribal [2002] EWHC 1542 as authority that where the respondent did not appeal a tribunal decision, it could be set aside only upon fresh evidence of fraud.
9. In a letter dated 10 October the respondent advised that the only policy governing this case is as identified above. A further letter from the respondent dated 11 October submits under reference to NA v SSHD [2016] EWCA Civ 662 at paragraphs 39 and 40 that this case falls within the statutory requirement that Article 8 assessments relating to foreign criminals must recognise that deportation is conducive to the public good and is in the public interest. It also argues that Saribal is irrelevant, there being no suggestion that this appellant obtained leave by fraud.
10. Ms Darvishzadeh submitted along the following lines. Saribal was based on a different set of facts, but was relevant to show that the previous decision in favour of the appellant should continue to hold. The respondent's statement of compatibility of the "new rules" and Article 8, dated 13 June 2012, showed that those rules were intended to be consistent with the prior case law and did "not dispense with the courts' role in deciding the proportionality of the rules themselves, or their application in individual cases. That would not be possible without primary legislation and is subject to the UK's existing applicable international obligations" (paragraph 24). Article 8 had not changed. The UT had decided the case under Article 8. Its decision remained sound and should be followed in accordance with Devaseelan. The appellant's circumstances had not been weakened in respect of family and private life, rather strengthened by the passage of several years and the positive use of the leave which had been granted. The intention of Parliament could not have been that previously decided Article 8 cases were to be re-litigated where nothing significant had changed. The appellant was being penalised for a conscientious attempt to comply with the rules. The decision of the FtT should be reversed on the basis of legitimate expectation, or alternatively on the basis of very compelling circumstances.
11. Mr Mullen submitted that Saribal was not in point in any respect. This was not re-litigation. The appellant was granted 3 years leave in accordance with policy. He could not expect any more. It was well established that all an applicant can lawfully expect is that his case will be decided according to the rules in force at date of decision. In deciding his most recent application, the respondent was bound to do so under the "new rules." These have been established to be compliant with Article 8. The imperative public interest in deportation of foreign criminals is now also well recognised. The judge was aware of the previous favourable decision, and did not find it to constitute "very compelling circumstances."
12. I reserved my decision.
13. The "freestanding" Article 8 decision (i.e. unencumbered by the "new rules" and related recent case law) is one which (as Ms Darvishzadeh acknowledged in course of submissions) might have been thought finely balanced, and might have gone either way on the facts as they stood in 2010-2011. However, it is a case, as matters stood before the FtT in 2015, in which the appellant had the benefit of the UT's decision that notwithstanding the terms of the Immigration Rules, the family and private life interests of parties affected (the appellant and his partner) were such that he had a right to remain in the UK.
14. There can realistically be no quarrel with the FtT's decision that there are no circumstances within paragraphs 399 and 399A to outweigh the public interest in deportation. Apart from the previous UT determination, it would not be possible to find in terms of rule 398(c) any "very compelling circumstances over and above those described in paragraphs 399 and 399A."
15. The "new rules" were not intended to undermine Article 8 rights which would otherwise exist. I consider that they were not intended to change a proportionality balance which had already been struck, where the relevant facts, if they had changed at all, had moved only in an appellant's favour. The appellant was lawfully entitled only to a decision under the "new rules", but that decision could not be made as if there had been no previous determination in his favour.
16. The judge fell into error which is encapsulated in my view by grounds (3) and (6). He failed to consider that the previous favourable decision of the UT in terms of Article 8 was a circumstance not contemplated by paragraphs 399 and 399A. That requires the decision to be revisited.
17. A human rights finding followed by 3 years leave, with no new negative factors, and positive factors reinforced, must go a long way in the appellant's favour.
18. If family and private life had changed so as to lessen the impact of removal on parties affected, there might have been nothing to outweigh the public interest in deportation; but the appellant's position having only strengthened in the meantime, there was not only a compelling circumstance, but a very compelling one.
19. The decision of the FtT is set aside. The appeal, as originally brought to the FtT, is allowed, within the terms of the Immigration Rules.

Date: 12 October 2016
Upper Tribunal Judge Macleman