Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/14171/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 February 2017
On 28 February 2017

Before

UPPER TRIBUNAL JUDGE JORDAN

Between

Miss Latoya McDermott
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr P. Turner, Counsel, Dotcom Solicitors Ltd
For the Respondent: Mr S. Whitwell, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, Miss Latoya McDermott, appeals against the determination of First-tier Tribunal Judge Cary promulgated on 30 July 2016 in which he dismissed the appellant’s appeal against a decision to make a deportation order against her under Section 3(5)(a) of the Immigration Act 1971.
2. The appellant was born on 22 April 1976 and is now aged 40. She originally arrived in the United Kingdom on 19 April 1999 and was granted leave to remain as a visitor until 19 October 1999. She applied for leave to remain as a student and that was granted until 31 October 2000. Unhappily the respondent had been misled by the appellant because all of these applications had been made in the false identity of one Joy Walker and indeed she had applied to obtain a British passport under that name. It was received by the respondent in November 1999, about a month after the appellant had applied for leave to remain as a student.
3. The appellant then left the United Kingdom and attempted to return to the United Kingdom using a false passport. She did so on 11 December 1999 but her baggage was searched and some 11.5 kilos of cocaine were found hidden in plastic bottles. It appears that she was stopped from leaving Trinidad and Tobago and was subsequently prosecuted there in the name of Joy Walker, her false identity, and for which she received a sentence of some seven years’ imprisonment and a fine. That was the foreign conviction which the Secretary of State relies upon in her approach to deportation.
4. Once again using a false identity, the appellant managed to persuade the authorities that she should be repatriated to the United Kingdom in order to serve the remainder of her sentence and she continued to use the identity of Joy Walker. After her release from prison she applied for a driving licence in 2006. She gave birth to a daughter, L, on 21 December 2006 and again used a false identity in order to obtain a British passport for her in 2007 and she also used that name when registering L’s birth.
5. She continued to use a false identity and so, for example, on 3 September 2009 she was convicted in the name of Joy Walker at Wood Green Crown Court for possession of crack cocaine for which she received a community order. She obtained a further passport for herself in January 2010, having obtained a further passport for her daughter the previous October and it was only when the authorities caught up with her in March 2010 that she was arrested for obtaining a British passport by deception. That resulted in further convictions at Southwark Crown Court on 17 June 2010. The first offence was obtaining property by deception and that related to an offence on 29 November 1999. That was an application for a passport. She was convicted of a further offence of obtaining property by deception which took place between 8 and 10 January 2006 and finally she was convicted of making a false statement to obtain a passport and that took place between April and June 2007.
6. For all of those offences she was sentenced to a period of eight months in total. The sentencing for the latter offence of making a false statement to obtain passport resulted in a concurrent sentence of four months’ imprisonment. It was on the strength of those matters that the Secretary of State decided to make a deportation order. I can say at the outset that as far as L is concerned it appears that originally it was thought that L’s father was a British citizen and that may have influenced the outcome to some extent but then it transpired that L’s father was in fact removed from the United Kingdom and was returned to Jamaica, presumably the country of his nationality. Unfortunately he was later killed.
7. As far as the family life is concerned, however, the situation is that the appellant gave birth to C, her son, on 11 March 2015. C’s father is Mr Brown, a British citizen and a person who therefore made it possible for C to be recognised as a British citizen by the respondent. The appellant, however, does not live with Mr Brown, the father of C, and indeed it appears that he was not allowed to live with the family. They both live in different addresses and in paragraph 24 of the determination the judge records the evidence by the appellant that she and Mr Brown were not in “a steady relationship”. Mr Brown apparently has other children. Mr Brown works as a bus driver and it was said that their son could not live with him as he would have to give up his job and he would not be able to cope.
8. So those are the broad facts of the case and into that one has to consider the relevant provisions. First of all for consideration is Section 117A to D as inserted from 28 July 2014 by the Immigration Act 2014 into what becomes Part 5A of the Nationality, Immigration and Asylum Act 2002. It is important to look at Section 117D, which is the definition of a foreign criminal:
“In this Part, ‘foreign criminal’ means a person -
(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(c) who
(i) has been sentenced to a period of imprisonment of at least twelve months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender”.
9. It is said on behalf of the appellant that the judge got his consideration of the matter wrong both by improperly taking into account the conviction in Trinidad and Tobago, and in reaching a conclusion that the appellant is a persistent offender. That was the approach that the judge adopted and it is said that that approach was wrong.
10. There are a number of difficulties in the way of the appellant in advancing this case. First of all it is said by the respondent that it was not disputed that the appellant was a foreign criminal. This was recited in paragraph 38 of the determination and in that context the judge set out the provisions of Section 117D(2), to which I have referred, and the judge then goes on to make clear the basis upon which the Tribunal proceeded on the understanding that the appellant was a foreign criminal by reciting the sure facts that the appellant was not a British citizen; that she had been convicted on no less than two occasions of offences in the United Kingdom. Reference was made to the fact that she was a persistent offender by reason of those convictions and those offences had caused serious harm. Particular reliance was placed on the sentencing remarks of His Honour Judge Gledhill QC to the effect that the passport offences had the potential effect of causing serious harm and that they could only result in a custodial sentence.
11. The First-tier Tribunal Judge makes reference to those sentencing remarks. They are referred to in paragraph 6 of the determination in which the judge says:
In dealing with the passport offences, the judge commented that the appellant’s deception went “to the very heart of the immigration control in this country and a message must go out from this court that those who use falsity, dishonesty and deception to obtain such items as passports must be dealt with by way of a custodial sentence”.
Although a recommendation for deportation was not made by the judge, this was because he was not apparently supplied with the relevant circumstances to make such a recommendation.
12. The major submission which is advanced on behalf of the appellant is the proper construction of Section 117D(2) and the definition of a foreign criminal. It is said that the relevant parts are (b), namely a person ‘who has been convicted in the United Kingdom of an offence’, and those words in essence govern the contents of (c). They do so, it is said, by reference to the use of the word ‘and’. Subparagraph (c) refers to three circumstances of which subparagraphs (ii) and (iii) are predicated on the appellant having been sentenced in the United Kingdom to a period of imprisonment of at least twelve months.
13. In passing it has to be noted that in the United Kingdom the most that the appellant has received by way of imprisonment is a sentence of eight months. However, I am quite certain that Mr Turner’s interpretation of subparagraph (2) is wrong. If a person is permitted to have a motor car which is white, black or blue it does not mean that the determination of the second alternative is dependent on the car being white. It makes no sense in such a sentence. Each of them is in the alternative and they are made alternatives by the use of the word ‘or’, which immediately precedes the last of the three alternatives. That is a simple matter of grammatical construction. It is simply wrong to say that a person has to be sentenced to a period of imprisonment of at least twelve months before the decision maker is entitled to go on to consider whether that is an offence that has caused serious harm or that individual is a persistent offender. In particular, it is non-sensical in the case of a persistent offender to require that one of those offences has to be a sentence of twelve months in order to qualify for the classification of being a persistent offender.
14. That, it is submitted by Mr Whitwell on behalf of the Secretary of State, is clear from two cases. The first is the case of Johnson (deportation - 4 years imprisonment) [2016] UKUT 282 (IAC), a decision of Turner J and myself. In that case the Tribunal determined that:
“When a foreign offender has been convicted of an offence for which he has been sentenced to imprisonment of at least four years and has successfully appealed on human rights grounds, this does not prevent the Secretary of State from relying on the conviction for the purposes of paragraph 398(a) 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 or, indeed, less than twelve months’ imprisonment.”
15. The reasoning of that decision is set out in paragraphs 30 and 31. Paragraph 31 says:
… Our conclusion is that, once the appellant has been sentenced to a term of imprisonment of 4 years or more, he falls within the terms of paragraph 398(a) and the Secretary of State is entitled to rely upon it in deciding whether or not to make a deportation order. It is no bar to the Secretary of State that she took no action to deport the offender as a result of the conviction and sentence nor that the appellant successfully appealed following his conviction and sentence. Such a claimant is no longer entitled to rely upon the exceptions set out within s. 117C. Whilst we permitted the exceptions to be argued before us de bene esse, this is not a practice which should be followed in other cases since it is simply not material. Ultimately, no decision against a non-national can violate his Article 8 rights but, in the case of a foreign criminal who has been sentenced to at least 4 years imprisonment, the route by which he might avoid removal, as part of the ‘complete code’1 is to establish the very compelling circumstances over and above those described in paragraphs 399 and 399A; no more, and no less.
16. I draw attention at this stage to what is also said in paragraph 32 and this referred to the respondent’s own instructions to caseworkers as a means of interpreting the contents of a statutory instrument. What I said there is:
It is impermissible to rely upon the contents of the respondent’s own instructions to caseworkers as a means of interpreting the contents of a statutory instrument. Immigration Directorate Instructions (IDIs) may be used to identify a policy more favourable to an appellant than the Immigration Rules but cannot impose requirements more onerous to a claimant than the Rules. Hence, the IDIs are of limited use as a means of construction.
I intend to adopt that approach when considering the relevant guidance which has been provided to me in the form of the IDI. They do not identify a more favourable policy and do not, therefore, act as an aid to interpretation.
17. The second case upon which Mr Whitwell relies is the case of Rexha (S.117C - earlier offences) [2016] UKUT 00335 (IAC), a decision made by Dove J and Deputy Upper Tribunal Judge Grimes. In the course of that decision conclusions are set out in paragraph 14 and it was there said:
“In our judgment the expression ‘has been convicted’ in the context of Section 117C(6) and (7) does not limit the application of that Section to solely the conviction immediately prior to and prompting the making of a decision to deport. Whilst it may be said that the phrase is expressed in the present perfect tense, we can see little sense when examining the public interest identified in Section 117C(1) and (2) to limiting the application of these provisions designed to protect the public interest to solely the most recent episode of criminal behaviour by a foreign criminal. We are satisfied that the purpose and intention of Parliament in incorporating this Section providing for additional considerations and specific treatment of foreign criminals was to ensure that all of the criminal convictions providing a reason for the deportation decision were to be examined within the framework provided by Section 117C”.
18. On a proper interpretation of Section 117D(2), the trigger for consideration of other convictions is first that the appellant must not be a British citizen and secondly that he must have been convicted in the United Kingdom of “an offence”. Providing those requirements are met, as they have been in this case, then one then goes on to consider whether the appellant has either been sentenced to a period of imprisonment of at least twelve months or has been convicted of an offence which has caused serious harm or is a persistent offender. In my judgment, looking at a foreign criminal but omitting from consideration any evidence of foreign criminality would be non-sensical. It makes perfectly good sense that a foreign conviction can come into play and in particular can come into play where one is considering whether the appellant is a person who has been convicted of an offence which has caused serious harm or is a persistent offender.
19. Having said that, in the circumstances of this case I am satisfied that, if only by reference to the sentencing remarks of Judge Gledhill QC, the appellant has been convicted of an offence in the United Kingdom that has caused serious harm. The judge graphically described how it undermines the importance of proper immigration control. In addition to that, if one looks at the offending of which the appellant has been convicted, this is offending in the United Kingdom which spans an offence which took place in November 1999. It continued in January 2006 and it also continued in the offence which was committed between April and June 2007.
20. That, it seems to me, is sufficient to fall within the ambit of the provision but I also consider that I am entitled to take into account the nature of the offending and that is that from the moment when the appellant was repatriated into the United Kingdom on 17 June 2001 until she was arrested on 3 March 2010 she had persistently used the identity Joy Walker in order to obtain a driving licence and to obtain for her daughter a British passport in order to register L’s birth as a British citizen. She has also obtained a further passport in 2010 and a passport for her daughter in October 2009. All of these, it seems to me, can properly be treated as offending because they were plainly in breach of the law.
21. It follows from that that if one is using a provision which simply talks of an individual being a persistent offender I find it difficult to see that this is not such a case. Mr Turner on behalf of the appellant asked me to focus simply on the fact that there was a conviction on 17 June 2010. That was one appearance in the Crown Court for which she was sentenced in total to a period of imprisonment of eight months and that was therefore an offence, a conviction, which should be isolated and should not be considered as an example of persistent offending.
22. For the reasons that I have said, this was not in fact a single offence on 17 June 2010 but consisted of three offences. It had followed an earlier conviction in the United Kingdom in September 2009. Those alone are sufficient to make the appellant a persistent offender but in my judgment it is also possible to take into account the totality of the appellant’s offending in order to determine whether she is a persistent offender and that takes into account her conduct whilst in the United Kingdom and the offence for which she was convicted in Trinidad and Tobago. For all those reasons I take the view that the judge was entirely correct in reaching the conclusion that he did in relation to the pattern of offending.
23. I then go on to deal with the Article 8 claim. I raised at the outset of these proceedings the fact that the appellant’s son C is a British citizen legitimately by birth as a result of Mr Brown, his father, himself being a British citizen. For the moment I do not think it is necessary to rely on the precise position of L because the obtaining of a British passport in his name was plainly by deception. It is enough that there is one British citizen who is legitimately a British citizen for the purposes of the Article 8 claim.
24. The judge recorded that Mr Brown and the appellant do not live together, that the relationship is not a steady relationship, that C is even now only just under 2 years old and at the time of the determination in July 2016 was about 15 months old. In those circumstances it would be difficult to envisage such a young child necessarily automatically living with his father. Mr Brown gave evidence and his evidence was to the effect that C could not live with him as he would have to give up his job. He would not be able to cope because he is a full-time bus driver on shifts. Whether realistically C could live with his father was not a matter which was fully explored. It is of course possible that he could do so although there is, in my judgment, a more compelling reason why that does not feature in the current Article 8 claim that the judge was required to adjudicate upon.
25. The reason for this is found in Regulation 15A of the EEA Regulations 2006. Regulation 15A was inserted from 16 July 2012 to give effect to the decision of the Court of Justice in the decision of Case C‑34/09 Ruiz Zambrano v Office National de l’Emploi (ONEm) [2011] ECR I‑0000, [2011] All ER (EC) 491. It permits a derivative residence card to be issued to somebody who satisfies amongst other things these requirements. It refers to the applicant as P and provides:
“P satisfies the criteria in this paragraph if -
(a) P is the primary carer of a British citizen (‘the relevant British citizen’);
(b) the relevant British citizen is residing in the United Kingdom; and
(c) the relevant British citizen would be unable to reside in the UK or in another EEA state if P were required to leave”.
26. It is not for my purposes necessary to consider fully what the expression “unable to reside in the United Kingdom” means in the context of this case but clearly there is a potential for the rights of C to be considered by reference to an application for a residence card. That was the view that the judge took. It was also the view that the Secretary of State took in the Reasons for Refusal Letter.
27. In my judgment this is not a species of human rights simpliciter. This is a particular species of nationality law in the context of the European Union and those people who fall within the definition of a Union citizen including C acquire their rights against removal if they are to be removed outside the European Union. They have nothing to do with whether this would involve a violation of their human rights. That is an entirely distinct consideration.
28. In the course of argument it was suggested by me that where an individual has an opportunity of requiring a substantive right to remain, in this case a derivative residence card, it is not an appropriate function of Article 8 to be used as the means of determining whether the individual is entitled to that EU right.
29. It is for the applicant to make the appropriate application and satisfy the specific requirements of Regulation 15A. If the applicant does so there is no question but that the appellant will not be removed. If, however, she fails to do so then there will be no effective bar to her removal. However, it is not the function of Article 8 to determine that issue in the same way as it would not be the function of Article 8 to determine whether an individual is entitled to a right to remain as a student or in one of the other capacities or indeed as an asylum seeker. If such an application is available and is open to an individual that application has to be made.
30. It follows that the cases of Zambrano; Sanade and others (British children – Zambrano Dereci) [2012] UKUT 48 (IAC) and Ahmed )Amos; Zambrano; reg 15A (3)(c) 2006 EEA Regs) [2013] UKUT 89 (IAC) have no direct bearing on this case if the appellant has the opportunity of making an application for a derivative residence card and has not chosen to pursue it.
31. In those circumstances I am satisfied that the judge made no material error of law. Accordingly I dismiss the appellant’s appeal against the determination of First-tier Tribunal Judge Cary and direct that the determination of the First-tier Tribunal shall stand.
DECISION

The Judge made no error on a point of law and the original determination of the appeal shall stand.

ANDREW JORDAN
JUDGE OF THE UPPER TRIBUNAL