Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/12163/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 July 2016
On 31 August, 2016

Before

UPPER TRIBUNAL JUDGE STOREY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

JUNAID [A]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Ms Z Ahmad, Home Office Presenting Officer
For the Respondent: Ms M Butler, Counsel, instructed by Synthesis Chambers Solicitors

DECISION AND REASONS

1. The respondent (hereafter the claimant) is a citizen of Afghanistan. The claimant claims to have entered the UK in 2004 as an 11 year old unaccompanied minor. He claimed asylum in April 2004. This claim was rejected in June 2006, but he was granted Discretionary Leave (DL) until June 2007. He submitted an application for ILR in June 2007, but this was not dealt with until 4 March 2014, when he was granted ILR. On 21 January 2016, First-tier Tribunal Judge Trevaskis allowed his appeal against the decision of the appellant (hereafter the SSHD) to make a deportation order. The appeal was allowed on Article 8 grounds only. Between August 2010 and August 2015 the claimant accrued eleven convictions for 24 offences, being sentenced to consecutive terms of imprisonment totalling 54 weeks.

2. The SSHD's grounds of appeal were five-fold. It was submitted that the judge erred by:
(1) failing to give proper weight to the public interest in deporting the claimant, given his history of offending;
(2) wrongly regarding the claimant's culpability as lessened by his inability to work legally;
(3) failing to explain the importance he attached to the best interests of the child;
(4) failing to have regard to all the relevant evidence concerning whether there was a genuine and subsisting relationship between the appellant and his partner; and
(5) giving inadequate reasons for finding it would be unduly harsh for the appellant's children to remain in the UK if he was deported.
3. In submissions Ms Ahmad for the SSHD relied on what had been said by the Court of Appeal in MM (Uganda) [2016] EWCA Civ 450 regarding the need to treat the public interest as one of the factors relevant to the "unduly harsh" test. Simply mentioning offences did not establish that the judge attached proper weight to them. The judge's treatment of the best interests of the children effectively treated them as "the" rather than "a" primary consideration.
4. Ms Butler contended that the SSHD's grounds were in reality a mere disagreement as to the weight the judge had given to relevant factors and did not disclose an error of law. The judge had taken account of the public interest in deportation in the context of a carefully conducted balancing exercise.
5. Ms Butler argued that the judge considered all the claimant's offences referring to them in [107] as "numerous", and describing the claimant in [66] as a "persistent offender". As regards the level of risk of re-offending, the judge had taken account of the fact that the OASys Report assessed that as "medium", not high, and Ms Ahmad had conceded that reference in the SSHD's grounds to "high" was mistaken. Even if there had been only a relatively short time since the claimant's last offence, (6 March 2015), the judge was correct to say he had not re-offended during it. His offences were at a low level of seriousness. The judge was entitled to say the claimant stood to be granted ILR on 4 March 2014. In the context of the claimant's immigration history, the SSHD must take some responsibility for his inability to work.
6. As regards the judge's treatment of the best interests of the children and of the nature of the claimant's relationship with his partner, the judge made perfectly proper findings. There was evidence of cohabitation and the partner stayed at her parents' house for the purposes of choice of school for the children. The findings the judge made as regards the unduly harsh effect on the children were well within the range of reasonable responses.
7. I am persuaded by Ms Butler's submissions that the judge's decision is not vitiated by legal error. It is not one that I would have made on the evidence before the judge, had I been sitting at first-instance, but I am not entitled to set aside the judge's decision unless satisfied it is vitiated by legal error.
8. As regards the judge's treatment of the public interest, she clearly understood that in the case of deportation of foreign criminals it was "strong", as noted when citing case law in [63]. She correctly noted in [83] that the deportation of foreign criminals is in the public interest and that the more serious the offences committed by a foreign criminal the greater the public interest in deportation. It was in that context that the judge assessed that notwithstanding the fact that the claimant was a persistent offender his index offences were not the most serious. It is clear that the judge did not fail to have regard to the claimant's offending history. I do not consider the judge can be criticised at [105] for noting that since his release from immigration detention the claimant had not re-offended and had complied with the conditions of his licence. That was a fact. In taking account of it the judge was adhering to the guidance given by the Upper Tribunal in Masih [2012] UKUT 00046 at (a) which she cited in [63]. The judge clearly weighed in the balance also the risk of re-offending and harm to others and (as noted already) correctly noted he had been assessed (by OASys) as presenting a medium risk of harm to the public. The judge had earlier noted evidence that the claimant had been undertaking relapse prevention work as part of drug rehabilitation.
9. It seems to me that there is an additional reason why the SSHD's challenge to the judge's treatment of the public interest factors lacks force. When the SSHD considered whether to grant the claimant ILR in March 2014, she either knew or should have known that he had been committing offences since 2010, yet she still went ahead.
10. I do not regard the judge's findings at [98] as intended to lessen the claimant's culpability for his crime. The paragraph is carefully worded so as to make clear that she was intent on making findings as regards the ability of the claimant to support himself and his family by working and the reasons for that inability. Her finding that his inability to obtain work lawfully "led [him] to engage in criminal activity" may not be one that may have been reached by another judge, but it was one which was open to her on the evidence. Further, it was not a finding that he was not responsible for his criminal conduct; it was only about its cause.
11. As regards the SSHD's challenge to the judge's treatment of the claimant's relationship with his (British citizen) partner, I concur with Ms Butler that it does not rise above the level of a mere disagreement with the judge's findings of fact. The judge was fully aware that the couple's history of cohabitation was chequered. Having seen and heard from the claimant and his partner, it was entirely open to the judge to conclude that the SSHD's original position at the date of decision - that the couple were in a genuine and subsisting relationship - continued to be correct.
12. Nor do I consider that the SSHD's grounds succeed in identifying any legal error in the judge's treatment of the best interests of the child. Whilst I cannot agree with Ms Butler that the judge's treatment of this issue was extensive (of the paragraphs devoted to this subject - [91]-[99] - all but two are devoted to mere recitation of case law), the judge's assessment at [98] demonstrates that she was satisfied: (i) that the appellant had a good and close relationship with the three children; (ii) that in assessing their best interests he took into account that they were British citizens; and (iii) that it had been conceded by the SSHD that the best interests of the children were served by continuing to live with the mother, and continuing to derive the benefits of their citizenship. This assessment clearly built on earlier findings (not disputed by the SSHD) that it would be unduly harsh to expect either the mother or the children to accompany the claimant to Afghanistan: see [89]. Hence the only issue was whether the effect of the claimant's deportation on the children would be unduly harsh, which was, as the judge correctly observed, a matter to be determined within the framework of ss.117(4) and (5) of the Nationality, Immigration and Asylum Act 2002 as amended: see [84]-[87].
13. In relation to the issue of undue harshness and Ms Ahmad's attempt to rely on the Court of Appeal judgment in MM (Uganda), she correctly fell short of suggesting that the judge's reasoning was at odds with that decision. Although setting out the two reported cases of the Upper Tribunal on this issue - KMO and MAB - the judge (whether aware or not that they were in conflict over this issue) in any event proceeded on the basis that the law on this matter was as stated in KMO - see the final sentence of [88]..
14. Read as a whole, the judge's subsequent assessment was made on the basis that the public interest was relevant to the issue of whether the impact on the children was unduly harsh. This appears to me to be implicit in the assessment set out in [106] and [107] when read together.
15. The judge made very clear that she treated the best interests of the child as "a", not "the" primary consideration: see [99].
16. Whilst the judge can be criticised for not conducting a full assessment of the factors relevant to assessment of the best interests of the children, including language, culture and educational factors, a reading of the determination as a whole makes clear the judge was alive to all relevant factors - the judge clearly accepted that the claimant had no family members in Afghanistan who would be able to assist him and no property or assets there [103]; that neither the claimant nor his partner nor children spoke the native languages of Afghanistan [78]; that the claimant's partner (of Jordanian origin) had no ties with Afghanistan either; and that his partner and children had established a family and private life in the UK [33]: also seen as relevant were the claimant's medical difficulties.
17. I would observe that the claimant's case is not one that is caught by the provisions of s.117B of the Nationality, Immigration and Asylum Act as amended. Subsections [4]-[6] provide that:
"Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom."
In the claimant's case, his relationship with his partner was established when his immigration status was lawful.
18. For the above reasons I conclude:
The judge did not materially err in law.
Accordingly her decision to allow the claimant's appeal must stand.
No anonymity direction is made.

Signed Date 26 August 2016

Dr H H Storey
Deputy Judge of the Upper Tribunal