Tribunal decisions

The decision

IAC-AH-SC/SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12951/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 January 2017
On 10 February 2017

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Glenroy blake
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr S Kotas, Home Office Presenting Officer
For the Respondent: Ms B Asanovic, Counsel instructed by Wilson Solicitors

DECISION AND REASONS
1. I shall refer to the respondent as the appellant throughout this decision as he was before the First-tier Tribunal.
2. The appellant is a citizen of Jamaica and he was born on 20 July 1972. He appealed against a decision of 13 March 2015 to remove him. The Secretary of State decided that the appellant was not of good character and his presence here not conducive to the public good because he had been given nine warnings from the police for possession of cannabis and he had been cautioned for common assault in 2013. In the Secretary of State's view this amounted to persistent criminal behaviour such that it would not be in his interests of public to be granted indefinite leave to remain. His application was refused under the suitability requirements of Appendix FM. The application was refused for other reasons; namely, that the appellant could not meet the eligibility requirements of Appendix FM or the Immigration Rules in respect of private life and his application was refused under Article 8. The appellant appealed against that decision and his appeal was allowed by Designated Judge of the First-tier Tribunal R C Campbell in a decision which was promulgated on 21 June 2016 following a hearing on 26 April 2016. Permission was granted to the Secretary of State by Deputy Upper Tribunal Judge Davey on 28 October 2016.
3. At the hearing before Judge Campbell heard evidence from the appellant, the appellant's wife, stepson and stepdaughter. There was also evidence from an independent social worker who concluded that the appellant's role in the family was significant, notwithstanding, that he and his wife had separated. The social worker concluded that the appellant maintained a close bond with his step-children, particularly with his stepdaughter, Ms Rashanah Myers-Williams.
4. The judge set out the appellant's immigration history at paragraphs 2 to 6 of the decision. To summarise, he came here as a visitor in December 1999 and married a British citizen Stacey Myers in 2001. He submitted an application for leave as the spouse of a British citizen several weeks later. There was a substantial delay by the Secretary of State in considering the application and further evidence was requested from the appellant in May 2007. In August 2007 the appellant was granted discretionary leave as a spouse which was valid until 31 July 2010. The appellant and his wife separated in 2009. Before the expiry of leave the appellant applied for further leave to remain on the basis of family life. The application was considered and refused in December 2013 and a removal decision was subsequently found to not be in accordance with the law by the First-tier Tribunal. The impugned decision is dated 13 March 2015.
5. The judge heard extensive evidence from the witnesses about the substance of the appellant's family life and that evidence was accepted along with the evidence of the independent social worker relating to the impact of removal, specifically upon the appellant's stepdaughter. There was no meaningful challenge to the evidence.
6. The judge concluded that the appellant could not meet the requirements of the suitability grounds and the appeal was dismissed under Appendix FM. The judge concluded that the appellant could not meet the Immigration Rules in respect of private life under paragraph 276ADE. The judge allowed the appeal outwith the Rules having been satisfied that there were compelling reasons. He concluded that it would not be reasonable to expect the appellant's stepdaughter, with whom the judge found he was in a genuine and subsisting parental relationship, to leave the UK and therefore Section 117B(6) applied.
7. The judge made the following findings,
"47. In the light of the judgment in Agyarko [2015] EWCA Civ 440, this failure to meet the requirements of the rules has real weight. The appellant's case was advanced on the basis that he can show that an Article 8 assessment is required outside the rules and that his family life case is a strong one. In the light of SS (Congo) and Others [2015] EWCA Civ 387, he must show compelling reasons why such an assessment is required. If he succeeds in this regard, his failure to meet the requirements of the rules retains its legal relevance in such an assessment, where the competing interests fall to be weighed.
48. Is an assessment outside the rules required? I conclude that it is and that there are compelling reasons why this is so. Although the appellant has not met the suitability requirements of the rules, the largely unchallenged evidence shows that he has substantial ties to the United Kingdom, largely consisting of his relationships with his wife and stepchildren. Ms Rashanah remains a child and the appellant has been the only father figure she and her brother have known since they were infants and he and their mother first began their relationship. The appellant's family relationships have substantial weight in the Article 8 context and the rules do not cater for his circumstances, precisely because he cannot meet the suitability requirements. His family relationships have endured over a substantial period of years, including years in which he has been lawfully present here. Taking into account sections 3C and 3D of the Immigration Act 1971, the appellant has been lawfully present here since August 2007. It is not in dispute that he lodged an application for leave on the basis of his marriage to Ms Myers in February 2002 and that it was only five years later that the Secretary of State sought further information regarding that application. That substantial period of delay included years in which the appellant's marriage was flourishing and his parental role as a father developed and deepened.
49. There was a further substantial period of delay, of some three years, following an application for leave made in July 2010. The decision giving rise to the present appeal, following reconsideration of the case by the Secretary of State, was made as recently as March 2015.
50. Bearing on the weight to be given to the public interest in the appellant's removal are these substantial periods of delay and, as noted above, the appellant's failure to meet the requirements of the rules. The nature of his behaviour has been such that no decision maker has deemed it necessary to bring a prosecution in the light of the appellant's use of cannabis or following the assault in 2013. The appellant is not a foreign national criminal and this is not a deportation case. His failure to meet the suitability requirements of the rules has real weight but, as is clear from paragraph 57 of the judgment in SS (Congo), the precise margin of his failure to meet the requirements of the rules may be relevant in the balancing exercise. There is no room for a 'near miss' in this context but I conclude that the public interest in the appellant's removal, as shown by the particular level of criminality in his case, is modest.
51. In considering the public interest question, I must take into account and apply section 117B of the 2002 Act (and I remind myself again that as the appellant is not a foreign national criminal, the additional considerations contained in section 117C have no application). Some of the factors fall in the appellant's favour as the unchallenged evidence shows that he has been economically independent, including during periods of leave, and speaks English. Although little weight should be given to a relationship formed with a qualifying partner which is established by a person when he is in the United Kingdom unlawfully, the appellant was given leave between 2007 and 2010 precisely because of his relationship with Ms Myers. He was given leave some five years after he made his application, years in which the family relationships developed and deepened.
52. So far as section 117B (6) is concerned, the appellant is not liable to deportation. The evidence clearly shows that he has a genuine and subsisting parental relationship with a qualifying child, Ms Rashanah, who is a British citizen and is under the age of 18. I find that it would not be reasonable to expect her to leave the United Kingdom as she is in full-time education here and has never lived anywhere else. Taking into account guidance given by the Upper Tribunal in Treebhawon and Others [2015] UKUT 00674, and taking into account the clear terms of the sub-section that the public interest does not require the appellant's removal, in the light of his genuine and subsisting parental relationship with Ms Rashanah and the fact that it would not be reasonable to expect her to leave the United Kingdom, it is clear in my judgment where the balance between the competing interests lies. Giving due weight to the appellant's failure to meet the suitability requirements of the rules, the public interest in his removal, such as it is, is outweighed by his family life ties here. This case is similar in some respects to PD and Others [2016] UKUT 108], where family members failed to meet the requirements of the rules but the particular circumstances justified an assessment outside them".
8. Ground 1 is essentially a reasons challenge, but this was no longer pursued. Mr Kotas submitted that the decision is challenged on perversity grounds. This was not specifically raised in the grounds and there was no application to amend. In any event, there is no merit in a perversity challenge. Mr Kotas accepted that there is a high hurdle involved in successfully maintaining such a challenge. The decision according to Mr Kotas was perverse because the appellant's stepdaughter was nearly aged 18 and he is not her primary carer. The appellant is dependent financially on the support of others and he uses drugs. There was no specific evidence that the stepdaughter would suffer consequences other than those experienced by separation. My attention was drawn to paragraph 25 where the judge records that the appellant admitted that he still uses cannabis. There was no independent evidence that he has changed or addressed his behaviour.
9. There is no substance in the challenge. The judge recorded that the evidence was largely unchallenged. He found that the appellant has substantial ties with his wife and stepchildren. His stepdaughter was at the hearing still a child. He found that the appellant, is the only father figure she has known and both she and her brother have looked to the appellant as a father since he came into their lives when they were very young. The judge found that the appellant had enjoyed relationships over a significant period including when he has been here lawfully (since 2007). The judge was entitled to attach weight to the evidence of the social worker. Whilst the appellant was at the date of the hearing dependent on his wife and friends and had no independent means of income, he was not dependent on benefits. At paragraph 51, the judge recorded that he had been economically independent and indeed the appellant had produced evidence of economic activity in self-employment between 2007 and 2012 and there was no suggestion that he was not able to resume economic activity. The judge made an assessment of the appellant's criminality and it was open to him to conclude that criminality was modest. The findings are grounded in the evidence.
10. Turning to the second ground, Mr Kotas stated that paragraph 5 was not to be pursued (this was clearly the right approach considering paragraph 18 of the decision of the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705. However, the challenge in respect of section 117B(6) is maintained because, according to Mr Kotas, the judge considered reasonableness in accordance with the decision of the Upper Tribunal in Treebhowan and Others [2015] UKUT 00674, and that in doing so the judge failed to consider the public interest and this approach is contrary to the decision of the Court of Appeal in MA. The issue is not properly raised in the grounds, but in any event the argument cannot succeed. I have considered paragraph 52 of the decision, with specific emphasis on the sentence starting with "Giving due weight." On a proper reading of the decision and specifically paragraph 52, it is clear that although Treebhowan has been cited by the judge, he considered reasonableness in the context of the wider public interest and the approach is consistent with that in MA. The judge considered the public interest throughout the decision (see paragraph 47 and paragraph 50) and these findings fed into the assessment of reasonableness. At paragraph 50 the judge concluded that the public interest in the appellant's removal is shown by the particular level of criminality in his case is modest and this finding was open to him.
11. The challenge in respect of section 117B with focus on (3) (a) was maintained. The issue was raised in ground 1. Section 117B (3)(a) states that it is in the public interest not to be a burden on taxpayers, and for the reasons that I have already given the decision that the judge reached was open to him on the evidence that was before him.
12. I conclude that there is no error of law in the decision of the First-tier Tribunal and the Secretary of State's appeal is dismissed. The decision to allow the appellant's appeal under Article 8 is maintained.
No anonymity direction is made.

Signed Joanna McWilliam Date 9 February 2017

Upper Tribunal Judge McWilliam