Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12260/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 October 2016
On 29 October 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

CHRISTOPHER [T]
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Claimant: Mr M Muirhead, Legal Representative.
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The Appellant appeals with permission against the decision of First-tier Tribunal Judge Griffith, promulgated on 10 February 2016, in which he dismissed his appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") against the decision of the respondent made on 16 March 2015 to remove him from the United Kingdom.
2. The appellant is a citizen of Jamaica who entered the United Kingdom in 2002 with leave to enter as a visitor. He was later granted leave to remain as a student until 30 September 2003, but has overstayed since then. During that time, he formed a relationship with Ms S F, also a Jamaican national, but who has Discretionary Leave to Remain in the United Kingdom.
3. There are three children of the relationship: the two youngest are the children of the appellant and Ms F; the older, who has been registered as a British Citizen, is the appellant's step daughter.
4. The respondent's case is set out in the Refusal Letter dated 12 March 2015. In summary she considered that owing to his convictions, the appellant could not meet the suitability requirements under Appendix FM, relevant both to the appellant's claim to be entitled to leave under the partner and/or parent route, or under paragraph 276ADE of the Immigration Rules.
5. Further, the respondent concluded that in any event, the appellant could not meet the requirements of Appendix FM under the partner route as Ms F had only Discretionary Leave to Remain; it was not accepted either that the appellant was living as part of a family unit or had much input into his step-daughter's life.
6. The judge heard evidence from the appellant, Ms F and the stepdaughter. She found that:
(i) the appellant could not meet the suitability requirements of the Immigration Rules [63] and that the main thrust of the appeal was the respondent's approach to her duties under section 55 of the Borders, Citizenship and Immigration Action 2007; and, she was not satisfied that the respondent had done so [68];
(ii) the appellant's relationship with Ms F was somewhat fractured and was not being relied upon [69]
(iii) the appellant enjoys family life with his stepdaughter and his natural daughter [70], has played and plays a reasonably significant role in the upbringing of the children, even if he had not lived continuously with their mother [72];
(iv) While it was in the children's best interests to be brought up by two parents, if possible, that was not a trump card [73], and having had regard to the cumulative effect of other considerations, including the public interest the, appellant's criminal record weighs significantly against him [74], albeit that he was not being deported as a foreign criminal [75], and little weight could be attached to his private life in light of section 117B of the 2002 Act;
(v) That section 117B (6) of the 2002 Act was not engaged as there was no question of the older child being required to leave the United Kingdom;
(vi) Removal was proportionated, given that the best interests of the children were outweighed by the weighty public interest considerations [77];
7. The appellant sought permission to appeal on the grounds that the judge had erred:
(i) In her application of section 117B of the 2002 Act, in not taking into account the fact that the appellant had skills and, if granted leave, would seek employment and would be unlikely to be a burden on the taxpayer, a burden that would increase if he were to leave, given that his partner is a single mother of three children;
(ii) In failing, given that there was no risk of the appellant re-offending, and following Zoumbas [2013] UKSC 74, properly to assess the best interests of the children by treating the public interest as inherently more significant that the best interests of the children, rather than considering the cumulative factors;
(iii) In failing adequately to assess the impact on the children of the appellant's removal to Jamaica;
8. On 8 September 2016 Upper Tribunal Judge Canavan gave permission to appeal on all grounds.
9. There is little merit in the submission that the judge erred in her approach to the possibility of the appellant being able to work. At best, if he were able to work, that would be a neutral factor, as noted most recently in Rhuppiah v SSHD [2016] EWCA 803 at [62] - [65]. There is, a consider, insufficient indication in the decision that the judge, contrary to what is averred, did not treat the best interests of the children as a primary consideration; the observation that their best interests did not trump the public interest is not an improper position.
10. Further, it is not arguable that in this case, any of the children are being required to leave the United Kingdom. They can remain here with their mother, and the oldest is a British Citizen.
11. I do not consider the argument that the judge did not take into account the best interests of the children is tenable. She accepted [73] that the best interests of the children were, if possible, to be brought up by bother parents and that on the facts of this case, the best interests of the children would be for the situation to remain as it is.
12. It was open to the judge to conclude that, cumulatively, removal was proportionate. There is no proper indication that any relevant factors were omitted from the balancing exercise carried out. It is not submitted that section 117B (6) is engaged here. The judge was clearly entitled to attach weight to the appellant's past offending which involved a custodial sentence of over 12 months' duration. Although he would now appear to be a foreign criminal for the purposes of section 117D of the 2002 Act, that point has not been taken by the respondent. If the judge erred in not taking that point, that error was clearly not to the appellant's detriment.
13. In essence, this appeal is simply about weight attached by the judge to various factors. Weight is primarily a factor for the judge; there is here no indication that improper weight was attached to the public interest. It is sufficiently clear from the judge's recording of the relevant evidence and submissions in her determination that she was aware of the impact on the children of separation [42], [62] and she stated [7] that this was taken into consideration. It is sufficiently clear from what is recorded at [72] that she did so and that this was a factor weighed in the proportionality exercises. Over and above the usual effect on a child of the removal of a parent, no other factors are identified in the grounds nor did Mr Muirhead seek to persuade me that such factors apply.
14. Viewing the decision as a whole, I consider that the judge properly concluded that, on the facts of this case, the appellant's removal was proportionate, a conclusion which is sustainable and adequately reasoned. The appellant has thus not shown that the decision of the First-tier Tribunal involved the making of an error of law.
15. I discharge the anonymity order as it is not in the public interest to maintain it.
SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal did not involve the making of an error of law and I uphold it.
2. I discharge the anonymity order made below

Signed Date: 29 November 2016

Upper Tribunal Judge Rintoul