Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-002526

First-tier Tribunal No: HU/52112/2021 IA/06629/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 28 April 2023

Before

UPPER TRIBUNAL JUDGE CANAVAN
DEPUTY UPPER TRIBUNAL JUDGE BLACK

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

MAR
(ANONYMITY ORDER MADE)
Respondent

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

Representation:
For the Appellant: Ms S Cunha, Senior Home Office presenting officer.
For the Respondent: Mr D Chirico, instructed by JCWI.

Heard at Field House on 15 March 2023

DECISION AND REASONS
1. The appellant in this matter is the Secretary of State for the Home Department and I shall refer to the “SSHD” and I shall refer to MAR as the “Claimant.”
2. The Claimant appealed against the decision made by the SSHD on 14th May 2021 refusing his human rights claim under Article 8 and to maintain the deportation order on 9th July 2014 by virtue of section 32(5 )UK Borders Act 2007.
3. First-tier Tribunal Judge Spicer (“the FTT”) allowed the appeal in a decision promulgated on 2nd May 2022.
4. The FTT considered the provisions under section 117C Nationality, Immigration & Asylum Act 2002 (“the 2002 act”) dealing with deportation of foreign offenders. The Claimant was sentenced to 4 years imprisonment for the index offence, the supply of class A drugs. He was released from prison in 2014. The FTT determined the appeal as a second Tribunal following the dismissal of the appeal by FTJ Mills in a decision promulgated on 13th March 2017. The Claimant submitted further representations. The SSHD granted to the Claimant an in-country right of appeal. In the refusal letter the SSHD accepted that there was a genuine and subsisting relationship with the Claimant’s wife and their three minor children (all British citizens), and that the attack on his wife in January 2020 would have a very traumatic effect on her and that she and the children would need extra support [11].
5. The FTT followed Devaseelan and took as her starting point the findings made by the previous Tribunal. The Claimant raised new evidence which included 4 expert reports and the FTT heard oral evidence from 4 witnesses. The FTT applied the relevant provisions and adopted a structured approach dealing with Exception 1, Exception 2 and very compelling circumstances. The FTT concluded that Exception 2 applied in so far as it would be unduly harsh for the Claimant’s wife, and further that the family life of the Claimant outweighed the strong public interest in deportation because there were very compelling circumstances, namely the impact of separation from the Claimant on his wife and children. The decision was disproportionate.
Grounds of appeal
6. The SSHD applied for permission to appeal on the following grounds;
7. Ground 1 - The FTT failed to give adequate reasons in finding that it would be unduly harsh on the Claimant’s wife. The FTT misdirected itself on the law.
8. Ground 2 - The FTT failed to follow caselaw and made a material misdirection of law in finding that there were very compelling circumstances (Hesham Ali v SSHD [2016] UKSC 60 (para 38) .
Grant of permission
9. Upper Tribunal Judge C Lane granted permission on both grounds in terms: “The judge has arguably failed to explain in adequate detail the extent of any impact on the children of a separation from the appellant. At [56], he states that the impact is likely to be, as when the appellant was in prison, ‘adverse’ and that the separation would ‘by inference … cause further disruption’ but that assessment is arguably inadequately clear to satisfy the test of undue harshness. Both grounds may be argued. “
Error of law hearing
10. For the hearing before us we had a stitched bundle including the documents from the First-tier Tribunal proceedings, the grounds of appeal, the grant of permission to appeal, the skeleton argument for the Claimant relied on before the FTT, a Rule 24 response, and a further note from the Claimant. The hearing was face to face and the Claimant and members of his family were in attendance. Both representatives made submissions. We have referred to the various cases relied on by Ms Cunha and read the written response dated 15.3.23 prepared by Mr Chirico.
Rule 24 response
11. The Claimant noted that the grant of permission highlighted issues that had not in fact been the subject of grounds of appeal. It was argued that the FTT had properly dealt with the evidence as to undue harshness to the Claimant’s wife. It was accepted that no actual finding of undue harshness was made in respect of the children. There was no basis for arguing that any claimed lack of reasoning infected the FTT’s conclusion that there were very compelling circumstances. The FTT properly followed the structured approach and reached a sustainable decision that there were very compelling circumstances.
Discussion and conclusion
12. We conclude that the SSHD has failed to make out her grounds of appeal. We found that the FTT decision was thorough and detailed. The Tribunal followed the law, directed herself appropriately [12-22] and applied it to the facts as found by the previous Tribunal and to those additional findings made by the FTT. We emphasise that this was a second hearing following a dismissal of the Claimant’s appeal by the previous Tribunal which had concluded that the strong public interest was in deportation. The FTT [35] relied on and set out in some detail the findings made by the previous Tribunal (including his offending) and properly adopted the approach in Devaseelan by going on to consider the new material [40], in respect of which she made additional findings of fact [38] and which lead her to alter the previous decision [41 & 56]. In that context it was not necessary for the FTT to revisit in detail matters already settled, including the public interest and the seriousness of the offence which are dealt with at [5,7,35,43,64,71]. We observe that these issues although raised by Ms Cunha were not raised in the grounds of appeal. It was not argued in the SSHD’s grounds that there had been a failure to consider any material aspect of the case.
13. In her decision the FTT [34] took into account that the evidence including the four expert reports was unchallenged and placed significant weight on the same, carefully detailing the conclusions reached by the forensic psychologist, clinical psychologist and independent social worker. All of this new evidence focused on the impact of separation from the Claimant for members of his family including his wife, his 3 minor children and his grownup children. The FTT summarised the expert opinions. We have read the reports and it is clear that the FTT properly placed weight on the expert evidence which establishes the severe impact of separation on the Claimant’s wife and children [38]. It was clear in the reasoning of the FTT that the severity of the wife’s mental ill health, which had previously manifested in a lack of selfcare, would have a significant negative impact on the welfare of the children who it was found would be at risk of neglect in the absence of the Claimant [34 (c)]. The independent social worker found that there was already evidence of the impact of separation on the children when the Claimant was in detention and much of the causation for this was the deterioration in the Claimant’s wife mental ill health. We are satisfied that Ground 1 is not made out. The FTT provided more than adequate reasons for finding that separation would be unduly harsh for the Claimant’s wife.
14. We accept that the FTT did not reach a specific conclusion that it would be unduly harsh for the Claimant’s children. The FTT was entitled to consider all of the circumstances including the best interests of the minor children, the impact on the adult children, the impact on the Claimant’s wife and on the Claimant himself all of which informed the FTT’s evaluation under section 117C (6) and she made a clear finding that deportation would have an adverse effect on the children. The FTT reached the conclusion that the circumstances taken cumulatively were over and above the Exceptions [63]. We conclude that the fact sensitive judgment made by the FTT in this case was well within the range of reasonable conclusions (AA Nigeria [2020]) and that there was no material error of law.
15. We consider that ground 2 is essentially generic and we conclude that the FTT applied the relevant law and adopted the correct approach to section 117C (6). We are firmly of the view that the FTT [47,63-64] was fully aware of the statutory provisions and thresholds to be met where an offender has been sentenced to 4 years imprisonment (NA(Pakistan)) v SSHD [2017] 1 WLR 207 and HA (Iraq) v SSHD [2021] 1 WLR 1327, and the need for a fully evaluative determination of S.117C(6). The FTT states that it was “nevertheless sensible to adopt the structured approach envisaged by the statutory scheme and to consider whether the Appellant would be able to meet those statutory exceptions if they were available to him” [43], before directing itself to the “public interest in deportation of those who commit serious crimes” and expressly directing itself to “appl[y] the guidance in [HA (Iraq)]” [44] & [47].The findings were entirely supported by unchallenged evidence and that full reasons were given to justify the decision made that there were indeed very compelling circumstances.
Notice of Decision
The appeal is dismissed and the decision of the First-tier Tribunal shall stand.

GA Black

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

24.3.2023