Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/13038/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 January 2017
On 6 February 2017

Before

THE HONOURABLE MR JUSTICE SUPPERSTONE
JUDGE H J E LATTER

Between

MR JEROME GARFIELD BROWN
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr S Pinder
For the Respondent: Mr Melvin, Home Office Presenting Officer

DECISION AND REASONS

1. The Secretary of State appeals with permission granted by First-tier Tribunal Holmes on 10 November 2016 against the decision promulgated on 21 July 2016 First-tier Tribunal Judge Clarke allowing the appellant's appeal against the refusal by the respondent to grant him further leave to remain, and to make a decision to deport him to Jamaica.
2. The appellant is a national of Jamaica and his date of birth is 12 January 1975. He first entered the UK on 3 February 2001 as a visitor with leave to remain until 31 July 2002. On 10 May 2002 he married a British citizen. There were subsequent grants of leave to remain as the spouse of a settled person.
3. On 24 September 2004 at Reading Crown Court the appellant was convicted of supplying a controlled drug Class A crack cocaine and Class A heroine and he was sentenced to five years' imprisonment varied to four years' imprisonment on 27 July 2005. On 13 March 2006 the appellant was served with a notice of decision to deport and his appeal was dismissed on 17 May 2006.
4. Following applications for reconsideration the Court of Appeal on 10 July 2008 quashed the determination and ordered reconsideration. On 1 December 2008 his appeal was dismissed and on 1 May 2009 he became appeal rights exhausted. On 14 May 2009 the appellant failed to report and was listed as an absconder. He was later arrested on 3 November 2010 and served with a deportation order which was later accepted as an application to revoke his deportation order of 5 August 2011 and his appeal was allowed in a determination promulgated on 3 October 2011. On 24 February 2012 the appellant was granted discretionary leave valid until 24 August 2012. On 22 August 2012 he made a further application for leave which was granted until 17 April 2014. On 15 April 2014 the appellant made a further leave to remain application which was refused by the respondent on 23 November 2015.
5. First-tier Tribunal Judge Clarke records his starting point to be the recent decision of Johnson which concludes that when a foreign offender has been convicted of an offence of at least four years and has successfully appealed on human rights grounds this does not prevent the respondent from relying on the conviction for the purposes of paragraph 398A of the Immigration Rules and Section 117C of the 2002 Act if and when he reoffends, even if the later offence results in less than four years' imprisonment. However the appellant has not reoffended. Under paragraph 398A the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraph 399 and paragraph 399A. In Johnson at paragraph 27 this Tribunal (Mr Justice Turner and Upper Tribunal Judge Jordan) said as follows:
"We recognise the possibility of an appellant being sentenced to four years' imprisonment as a young man and subsequently succeeding in his appeal on Article 8 grounds and thereafter leading a blameless life for the following 40 or 50 years until the second short period of imprisonment triggers the consideration of paragraph 398A. In such a case however the significance of his earlier sentence would have receded to the point of its being immaterial to the consideration of what should happen to the appellant following his second conviction. We see this as a paradigm example of the very compelling circumstance sufficient to protect the appellant against expulsion."
6. Ultimately in our view in each case it is a question of fact for the judge to decide whether the very high threshold of very compelling circumstances has been met. Judge Clarke found there to be very compelling circumstances in that it was now over ten years since the appellant had committed the two offences in 2002 and he had not committed any further offence taken together with his successful human rights claim resisting deportation earlier.
7. With regard to the determination promulgated on 3 October 2011, being the decision of Immigration Judge Hembrough allowing the appellant's appeal, which remains unchallenged by the respondent, the appellant was granted two periods of discretionary leave to remain. At paragraph 14 of his decision Judge Clarke summarises the findings made by the Tribunal in that earlier decision:
"The marriage was subsisting, the offence was very serious and a deportation decision was in accordance with the law. The deportation decision amounted to a substantial interference with his right to a family life and that of his wife and the children of the family. It would be unreasonable for the wife or any of the children of the family to relocate to Jamaica to preserve their family life with the appellant, if deported the appellant would be excluded for at least ten years from the date of the order then there is little prospect of the family in the UK would be able to afford to visit him. The appellant had shown genuine remorse for his offending behaviour and there was a low risk of him reoffending."
8. Judge Clarke continues at paragraph 15 to state that the Tribunal was satisfied in the five years since the deportation order was made that necessity and public interest in the appellant's removal had diminished. Judge Clarke accepted these findings of fact and considered there was no reason to depart from them.
9. Further, since the determination of Judge Hembrough the appellant has two additional children albeit since December 2015 he and his wife have separated. Judge Clarke accepted the appellant sees his children almost daily and is heavily involved in their daily lives.
10. At paragraph 18 Judge Clark reminds himself of the public interest deterrence and public revulsion against such crimes as those committed by the appellant. However he observed that the appellant has been granted two periods of discretionary leave to remain and he has rehabilitated himself and there is no reason to depart from the earlier findings made by the previous Tribunal.
11. The Secretary of State submits that Judge Clarke materially erred in law in how she has undertaken the assessment of whether the appellant's human rights claim in the light of the deportation order is made out.
12. Mr Melvin who appears for the Secretary of State contends that the First-tier Tribunal Judge does not set out anywhere that in order to succeed the appellant needs to show "very compelling circumstances over and above those described in paragraphs 399 and 399A". However Judge Clarke does not set out anywhere that this is the test she has applied. She has failed to make any findings on either paragraph 399 or 399A and has therefore failed properly to consider the question of very compelling circumstances through the prism of the Rules.
13. Furthermore Mr Melvin submits Judge Clarke has failed to identify what it is that is specifically very compelling in this case. The passage of time whilst a factor has been treated as determinative despite that being in large part attributable to the appellant's own actions in absconding for eighteen months after he lost his appeal in 2008. Nowhere does the judge engage, Mr Melvin submits, in an analysis of what weight is given to the public interest in deporting the appellant given that the Rules themselves show where the balance is struck.
14. The Secretary of State contends that it is materially wrong to say that the public interest in deportation is considerably weakened due to the passage of time. The appellant continued an appeal until 2009 and then absconded. The public interest has not weakened by passage of time and given that Section 117C classes the appellant as a foreign criminal it cannot be said that the public interest has weakened.
15. In our judgment Judge Clark did apply the correct test as to whether there were very compelling circumstances to outweigh the public interest in deportation. The judge noted that the offences remain very serious and there remains the public interest in deterrence, see paragraph 12.
16. In our view the judge was entitled to find on the evidence that there was no reason to depart from the earlier findings made by Judge Hembrough. It is clear that the judge was aware that the Rules had changed since the hearing before Judge Hembrough.
17. Further in our view on the evidence the judge was entitled to take into account the events that had occurred since that earlier decision in particular the two grants of further leave and the ten year period that had by then elapsed since the convictions with the appellant remaining out of trouble. Implicit in the judge's findings is that it would be unduly harsh for the appellant's children to remain in the UK without their father.
18. For the reasons we have given we do not consider that there was a material error of law in this case. Accordingly this appeal fails.

No anonymity direction is made.

Signed Date

Mr Justice Supperstone

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Mr Justice Supperstone