Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08693/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 November 2016
On 7 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

Mr ACE KENTAKE
(ANONYMITY DIRECTION NOT MADE)

Appellant/Respondent
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent/Appellant

Representation:

For the Appellant/Respondent: Miss K Tobin, Counsel
For the Respondent/Appellant :Miss A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

Introduction

1. This is an appeal by the Secretary of State for the Home Department, who was the respondent below. I will continue to refer to her as "the respondent" and the appellant in the First-tier Tribunal ("FTT") as "the appellant".
Background

2. The appellant's mother first came to the UK from Jamaica in 1987. The appellant, who is a Jamaican national, was born on 15 April 1988 in the UK. In 2008 he was sentenced to eight years' imprisonment for a serious offence of robbery and related offences. On 5 August 2010, he was subject to a deportation order but the appellant successfully appealed that to the First-tier Tribunal on 27 February 2012. An appeal against that decision by the respondent to the Upper Tribunal was unsuccessful. The present appeal is against a decision of First-tier Tribunal Judge Baldwin ("the Immigration Judge"), promulgated on 16 June 2016, to allow the appellant's appeal against the respondent's decision to revoke his indefinite leave to remain ("ILR"). The decision to revoke the appellant's ILR was taken on 27th January 2015. That gave the appellant a right to appeal the Immigration Judge's decision to the FTT.

3. Judge Bennett, who, in 2012, allowed the appeal to the First-tier Tribunal against the deportation decision, described the terrifying ordeal for the victim of the robbery for which he was sentenced by Judge Moss in 2008, in paragraph 2 of his decision. There he indicated that it was an offence of the utmost seriousness in which the appellant had pointed a gun into the victim's chest. There was no doubt in the sentencing judge that it must have been a terrifying experience of the victim. Unfortunately, the appellant pleaded not guilty to the offence but was found guilty by the jury. However, Judge Moss recorded that the appellant did not present a significant risk of reoffending.

4. Judge Bennett distinguished the case of Maslov v Austria [2009] INLR 47 because in the case of Maslov the appellant had committed offences of a non-violent nature, with one exception. Having considered the appellant's behaviour as an adult Judge Bennett did not consider the UK to be in breach of its obligations under Article 8 of the European Convention on Human Rights (ECHR). Nevertheless Judge Bennett, having considered the revulsion with which society regarded offences such as robbery, decided that the consequences of removal were sufficiently serious to outweigh other considerations, including the public need for protection from dangerous criminals. The nature and seriousness of the offence did not require him to deport the appellant. I suggested to the appellant's representative that a tribunal may have reached a different view today.

5. Even though Judge Bennett had concerns over the accuracy and reliability of the information the appellant gave as to his relationships in Jamaica, he was satisfied that the interference by the respondent with the appellant's protected human rights would be disproportionate. He therefore allowed the appeal.
The Revocation of Leave and FTT Tribunal Appeal

6. The present phase of proceedings came in on 1 August 2013 when the respondent notified the appellant of his desire to revoke leave to remain. The appellant was sent a letter to this effect on 27 January 2015. The appellant gave notice of appeal to the FTT on 2nd March 2015 and this came before the Immigration Judge on 9th June 2016 sitting at Hatton Cross.

7. The Immigration Judge noted that the appellant's offending was very serious and of a type which society finds repellent. The appellant had shown a complete disregard for UK law but he had provided evidence that he was employed and was supporting himself and had less incentive to reoffend. He had started a family of his own in the UK. Having lived in the UK all his life, the appellant succeeded on his appeal on Article 8 grounds. It was not appropriate in all the circumstances to revoke the appellant's leave to remain. The Immigration Judge was also critical of the respondent.

8. In granting permission to the respondent to appeal to the Upper Tribunal against the Immigration Judge's decision, Judge of FTT Brunnen pointed out that the Immigration Judge had, apparently, applied a mandatory test pursuant to Section 76 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). In fact, Section 76(1) of the 2002 Act provides that:

"The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if the person -

(a) is liable to deportation, but
(b) cannot be deported for legal reasons"

9. The Immigration Judge having considered the documentary evidence from the appellant and his partner and the appellant's relationship with their children and the welfare of those children, concluded that the appellant had a strong case for "being allowed to remain in the UK". It is now necessary to consider whether that decision is legally sustainable having regard to the correct analysis of the law.

The Upper Tribunal appeal

10. On 22 June 2016, the respondent appealed the decision of the FtT to allow the appellant's appeal. The respondent raises effectively, three grounds:

(i) It was wrong for the Immigration Judge to suggest, as he appeared to in his decision, that the fact that the respondent had mistakenly referred to the word "will" tainted the discretion which the respondent had exercised. It was submitted that no material error had been identified in the manner of the exercise of the respondent's discretion.

(ii) The Immigration Judge failed to give adequate reasons for finding the exercise of the discretion was unreasonable in this case.

(iii) The Immigration Judge had failed to apply the judgment of the Supreme Court in Fitzroy George [2014] UKSC 28.

11. In the light of these failings the FtT was invited to give permission to appeal.

12. As has been indicated, the application came before Judge of the First-tier Tribunal Brunnen on 9 October 2016. Judge Brunnen considered the provisions of Section 76 of the 2002 Act and the fact that Section 76 of the 2002 Act gave the respondent a discretion. Plainly, in his view, a discretion had to be exercised by the respondent. He then went on to consider Fitzroy George and thought it "arguably unclear" from the decision of the FTT in this case whether the Immigration Judge held that the respondent had failed to exercise her discretion or whether he had held that the respondent should have exercised her discretion differently on the facts of this case. Paragraphs 18 and 19 of the decision suggested both that the Immigration Judge had not been satisfied as to the reasons given by the respondent and that he allowed the appeal outright. In any event, the Immigration Judge's reasoning left something to be desired.

The Hearing before the Upper Tribunal

13. At the hearing, Miss Brocklesby-Weller indicated that she accepted that revocation was not automatic in this case. However, the respondent had in fact considered all the factors relevant to revocation. Ultimately the question was one of reasonableness. The respondent had exercised her discretion properly, considering all relevant factors but the seriousness of the offence, the lack of evidence to support rehabilitation, the poor character of the appellant and all aspects of the case led to the conclusion that he should be subject to the revocation of his ILR.

14. Her second main ground of attack on the decision of the FTT was the lack of application of the decision in Fitzroy George. In that case the appellant had been convicted on seven different occasions of offences including the supply of cocaine in January 2002, for which he was sentenced to three years in a Young Offenders Institution. He also had driving and other offences on a number of occasions. On the basis of his convictions the Secretary of State judged that a deportation order was conducive to the public good. However, subsequent appeals resulted in a finding that the appellant's Article 8 rights would be infringed by his deportation and that these outweighed the public interest in deporting foreign criminals.

15. Their lordships considered whether the "legal bar to deportation", in that case under the Human Rights Act 1998, meant that it was inappropriate to revoke ILR. The existence of a power to revoke was clear, according to their lordships (See paragraph 16 of the judgment of the Supreme Court in Fitzroy George).

16. The human rights claim may well prevent an actual deportation of the individual concerned. However, it did not prevent the respondent from altering the individual's status and revoking indefinite leave to remain. This may control some of his activities in public and have other implications for the appellant.

17. I was also referred by the respondent at the hearing to paragraph 28 of the decision in Fitzroy George. There, it is indicated that a deportation order not having been made it was not necessarily anomalous or wrong for the foreign criminal concerned to face a loss of immigration status.

18. I raised at the hearing the issue of delay. Clearly, there was no meeting of the minds as to the cause of that. The appellant did not himself accept responsibility for it and Miss Brocklesby-Weller considered both sides had a part to play.

19. Overall, Miss Brocklesby-Weller said that the seriousness of the offence and the other points she had made justified the revocation.

20. Miss Tobin pointed out that the discretion had not been exercised correctly. Fitzroy George was not referred to but the circumstances were different here. She accepted that the Secretary of State had a discretion and had exercised it but she did not accept that, given the appellant's personal history (he has children here), this was an appellant case for interfering with the decision of the FtT. In fact, the Immigration Judge was fully justified in giving her client another chance.

21. At the conclusion of the hearing I reserved my decision as to whether or not there was a material error of law in the decision of the FtT and if so what steps should be taken to rectify that.

Discussion

22. Section 76 of the 2002 Act allows the Secretary of State to revoke indefinite leave to remain where the person who is liable to deportation cannot be removed for legal reasons. The fact that here the Secretary of State, erroneously, referred to a mandatory basis for revoking ILR does not appear to be relevant to the approach that she took. Whether or not the proposed deportation was mandatory does not decide the issue of whether or not to revoke ILR. Overall the respondent did not regard the revocation of the appellant's ILR as a mandatory requirement.

23. Unfortunately, the Immigration Judge did not refer to the Fitzroy George case. That case sets out the framework within which the discretion under Section 76(1) must be exercised. There are a number of procedural hurdles that the respondent must go through before she gets to the stage of revocation of ILR:

(i) It must have been determined that it was in the public good to deport the appellant within Section 5(1) of the Immigration Act 1971. Where the deportation order is upheld, revocation of leave to remain follows automatically.

(ii) Section 76 was enacted to deal with precisely the situation in this case; where the deportation cannot be implemented for "legal reasons", for example, a defence has been raised under the Human Rights Act 1998 (see paragraph 14 of Fitzroy George).

24. There is no doubt here that the respondent's reasons for revoking ILR were cogent and properly reasoned:

(i) The appellant had made no significant effort to find suitable employment and therefore he had a financial incentive to further offend;

(ii) He had a long way to go to prove that he was not a threat to society given the seriousness of his previous offence;

(iii) The Secretary of State alleged that the appellant had not supplied evidence of the family life he claimed to have developed with his son, who had been both on 9th October 2013, despite having a number of opportunities to do so, although this was disputed by the appellant. In any event, it was not a consequence of the present immigration decision that the appellant would be removed from the UK and thus separated from his family, although it would mean that the appellant's status in the UK was more precarious;

(iv) Rather than address his offending the appellant had made a number of allegations against the respondent, including allegations of a racist conspiracy against black males (see paragraph 16 of the refusal). This undermined any suggestion that the appellant had come to terms with his offending and was taking steps to ensure it did not occur again.

Conclusions

25. In paragraph 16 of Fitzroy George the Supreme Court explained why the power that is in issue in this case had to be introduced or why it is necessary. The effect of human rights' claims succeeding is to prevent actual deportation and in the words of the Supreme Court:

"... it may make good sense to alter his status from indefinite leave to remain to limited leave, or, more likely, conditional leave, which gives proper scope for controls on his activities in the public interest".

26. Although the Immigration Judge was entitled to comment on the mistaken reference to the power under Section 76 to revoke ILR being "mandatory" it was clear from the whole decision that the respondent properly exercised her discretion and took account of all the relevant factors in the case. The Immigration Judge seems to have assumed that the effect of the respondent's decision was to permit the respondent to remove the appellant from the UK (see the third line down of page 5 of the decision). This was not the effect of the decision. The public are entitled to expect that some change in status will follow from the commission of a serious offence by a foreign national. I was concerned at the hearing by the delay but it is by no means clear how this delay has been caused and how relevant it is to the ultimate outcome. I have decided that no weight should attach to it in all the circumstances.

27. I find that the respondent was entitled in all the circumstances and justified in her decision to revoke ILR and the Immigration Judge was wrong to consider that simply because the appellant had not committed further offences this meant it was inappropriate to exercise the discretion against the appellant. no good reasons were given by the Immigration Judge for rejecting the respondent's case but a number of wrong or inaccurate reasons were given, such as asking what useful purpose the revocation of ILR served (see paragraph 16). It is clear from Fitzroy George that the reduction in status does serve a useful purpose. The FTT should be slow to criticise the respondent when she takes account of all relevant factors in deciding whether to remove a foreign criminal in the public interest. As a result of the reduction in status if the appellant committed further offences his removal would be very much easier.

Decision

28. I find that there was a material error of law in the decision of the FTT. I substitute the decision of the Upper Tribunal which is to set aside the decision of the First-tier Tribunal and find that the appeal against the decision of the Secretary of State is dismissed.

29. No anonymity direction is made.

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

Signed Date

Deputy Upper Tribunal Judge Hanbury 7 December 2016