Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13051/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 12th May 2016
On 15th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

mr V m
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Mackenzie (Counsel)
For the Respondent: Mr D Mills (HOPO)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge O R Williams, promulgated on 29th July 2015, following a hearing at Stoke-on-Trent on 9th July 2015. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a male, a citizen of Jamaica, who was born on 17th September 1982. He appealed against the decision of the Respondent dated 13th April 2015, maintaining the decisions dated 14th November 2014 and 25th November 2014, to make a deportation against him on the basis of crimes committed in this country and a sentence subsequently served of imprisonment thereafter. The Appellant's claim is that he should not be removed to Jamaica on account of his family life rights, which he enjoys with his three children and his partner in the United Kingdom.
3. At the hearing before me on 12th May 2016, there was a preliminary application made by Mr Mills, on behalf of the Respondent Secretary of State. Mr Mills submitted that the Appellant had no right of appeal, with respect to the Respondent's decision of 13th April 2014, as regards the decisions taken on 14th November 2014. This was despite the fact that a duty judge in July 2015 had confirmed that there was a right of appeal. However, the Court of Appeal decision in Virk [2013] EWCA Civ 652 suggests that the issue of jurisdiction remains open before the courts throughout the proceedings, so that even if there had been a decision to the contrary by two previous Immigration Judges, which was the case, such an application could be renewed before the Upper Tribunal, and if that were so, then a successful application by the Secretary of State would result in there being no right of appeal today. Accordingly, it was accepted that the point about jurisdiction remains in the Upper Tribunal whether or not it has been taken before in the First-tier Tribunal (paragraph 11), and the court had made it clear that "whether taken or not below" (see paragraph 20) the issue remains open. This is because a right of appeal can only be created by statute and it cannot be created by a waiver or by agreement, and there was no statutory right of appeal here.
4. For his part, Mr Mackenzie submitted that such a claim could not succeed for the following reasons. First, the letter of 17th April 2015 makes it clear that a Tribunal below had decided that there was a right of appeal. This letter written to the Appellant's solicitors confirms that, "an Immigration Judge has reviewed this appeal and has deemed it as having a right of appeal". Second, that decision was not appealed by way of judicial review. In Virk itself it was accepted that, even if a decision is precarious, "it will become less precarious once the time for applying for permission to appeal has expired" (see paragraph 22). It now ill-behoved the Respondent to raise this matter on an appeal on which permission had been given from the Appellant's side. Third, the Secretary of State has sat on this for a whole year before raising it today before the Tribunal. Fourth, there was no Rule 24 response from the Secretary of State taking the jurisdictional point. Fifth, the case of Virk was very different because there Patten LJ made it clear that "no point was taken about the jurisdiction of the FTT to entertain the appeal", whereas in the instant case the point had previously been taken on two occasions and on both occasions decided in favour of the Appellant, so that there was a right of appeal. The matter was confirmed again (at paragraphs 20 to 22). Accordingly, the proper challenge has not been made and this preliminary application should be rejected.
5. I have decided that there is a valid right of appeal before me. If the decisions taken by the Immigration Judges below were improper, the proper course of action was to raise a jurisdictional matter by way of a judicial review action by the Secretary of State, and in the timeliest manner, rather than being raised before this Upper Tribunal, which is not exercising a judicial review function for present purposes. Accordingly, this Tribunal must hear the appeal on the part of the Appellant.
6. Mr Mackenzie began by stating that there were three Grounds of Appeal. The background was that the Appellant had committed offences and had served a maximum sentence of one year. He had three British children, one of whom was a stepchild of his. A deportation order was made and the Appellant appealed that order, but failed to turn up at the hearing and his appeal was dismissed. The issue before this Tribunal is whether under paragraph 399 of the Immigration Rules it was unduly harsh for the children to either go to Jamaica with the Appellant, their father, or to remain here alone, without him, with his being deported. The judge had accepted the likely adverse effects upon the children, on the basis of the evidence of the independent social worker (see paragraph 12), "or separation from the Appellant". However, he had then held that "it would not be unduly harsh for the children to live in Jamaica" (paragraph 14). There were two difficulties with this conclusion. First, a previous judge had already decided that the best interests of the children would not be served by their being removed to Jamaica, and this determination by Judge Pooler, was actually set out at length in the body of the determination by Judge O R Williams. Indeed, it was a feature of this appeal that Judge Pooler had even recorded that, "the Respondent concedes that it would not be reasonable to expect any of the children to leave the United Kingdom" and she further concedes "the existence of genuine and subsisting relationships with each child" (see paragraph 30 of Judge Pooler's determination recited at paragraph 11 of Judge Williams' determination). Second, the effect of the decision by Judge Williams was that three British citizen children were being removed from the jurisdiction in a way which was contrary to EEA law. The position was set out in a series of judgments by the English courts.
7. First, taking the point in relation to the position under EEA law, the case of Sanade [2012] UKUT 00048 had long established that it was not reasonable to expect British citizen children to relocate abroad (see paragraphs 93 to 95). This was followed in Izuazu [2013] UKUT 00045 where the judgment in Sanade was affirmed (at paragraph 29). In the Court of Appeal thereafter in AQ (Nigeria) [2015] EWCA Civ 250 the Home Office itself conceded that
"For the vast majority of deportation cases the Secretary of State's position remains as it was in Sanade: where the non-EU carer of a British child is subject to deportation but would not compel the child to leave the EU, it would 'not logically be possible' to determine the deportation issue on Article 8 grounds by proposing that the family should relocate as a unit outside the EU" (see paragraph 62).
At this stage, Mr Mackenzie made reference to the case of Rendon Marin (C-165/14) where the Court of Justice was considering the issue whether this would be right in every single case every time, and Mr Mackenzie helpfully indicated that the advocate general had given an opinion on this issue, suggesting that this would not be the case in every single case every time, but a judgment was still awaited from the Court of Justice itself. Mr Mackenzie then thereafter handed up a copy later in the afternoon of the opinion of Advocate General Szpunar (case C-165/14) for the assistance of the Tribunal and details were also given to Mr Mills for his purposes.
8. In short, submitted Mr Mackenzie, these three British children cannot be required to go to Jamaica with the Appellant, especially where there is no assessment of the children's position, such that it is not reasonable for the Secretary of State and for the judge to conclude that relocation to Jamaica is appropriate.
9. Given that the judge had specifically considered the question "whether it would be unduly harsh for the children to remain in the UK without the person who is to be deported", and then concluded that, "I am satisfied that it would be unduly harsh, having regard to the independent psychiatric and social work evidence, and in particular the children's mental health and behavioural issues, which were worse when they were separated from the Appellant" (paragraph 22), the only possible conclusion open to the judge was to conclude that the deportation of the Appellant could not be lawfully undertaken.
10. Second, the decision was also irrational given that the judge had regard to the case of Devaseelan [2002] UKUT 00702, in relation to Judge Pooler's decision on 6th June 2014. In that case, the judge had dismissed the appeal of the Appellant on separate grounds, after concluding that the children could not reasonably be expected, in the light of their best interests, to leave the United Kingdom and go to Jamaica.
11. Moreover, there had been a concession to this effect by the Respondent Secretary of State, on which the judge had therefore relied. Since this was the case, a failure to adopt this assessment, previously undertaken on the evidence before Judge Pooler, was irrational.
12. Third, Mr Mackenzie also had additional grounds, which I stopped him from developing any further, preferring at this stage to hear from Mr Mills before I proceeded, and this dealt with the unlawful findings on public interest reached by the judge, where the judge had failed to take into account the fact that these were "qualified children" under Section 117B(vi), such that the public interest did not require their removal.
13. For his part, Mr Mills, addressing the first two Grounds of Appeal raised by Mr Mackenzie stated that whereas it was true that in Sanade and Izuazu a concession had been made, this was not ever a "blanket concession", and each case would depend on their particular circumstances. This was such a case. The judge here had given adequate reasons to demonstrate why on the facts here the appeal should be dismissed.
14. Second, although Mr Mackenzie had submitted that the case of Marin had led to an opinion from the advocate general that consideration should be given where there are imperative grounds on public security, it would not necessarily be the case that the Court of Justice would take the same view. In a skilful submission before me, Mr Mills submitted that, after all, in Section 117B, where the Tribunal is enjoined to look at the "public interests" considerations, a person's character can militate against them, and this is not even in a deportation case. Therefore, it is quite conceivable that the law could move in the direction of saying that there could be circumstances where British children could be required to be removed with the deported carer. This would not contravene any legal principle. It was not unreasonable for the children to accompany their father as a single family unit.
Error of Law
15. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision (see Section 12(2) of TCEA 2007). My reasons are as follows. Without going into all the grounds that have been raised by Mr Mackenzie in his grounds of application, I conclude that the Appellant succeeds in demonstrating there to be an error of law in relation to the first two grounds raised.
16. First, a series of cases after Sanade has confirmed that a carer cannot be removed back to his country where there are British citizen children who are going to suffer to such an extent that the British citizen child or children would also have to leave. This would not be logically possible. It is not logically possible here because the judge accepted that "it would be unduly harsh, having regard to the independent psychiatric report and social worker evidence and in particular the children's mental health and behavioural issues which would worsen if separated from the Appellant" (paragraph 21). The children could not stay in the UK if the Appellant was deported. Their condition would worsen. This was accepted by the judge. They would have to accompany the Appellant back to Jamaica. That would infringe the rights of British citizen children and violate the fundamental precepts of EU law.
17. Second, in this particular case, a concession was made by the Respondent Secretary of State that it would not be reasonable to expect any of the children here to leave the United Kingdom. It was also conceded that there is in existence genuine and subsisting relationships with each child that the Appellant himself enjoyed. Judge Pooler had in his decision on 6th June 2014 concluded that it would not be in the best interests of the children were they not to be in the care of both parents in the United Kingdom (see paragraph 30).
Remaking the Decision
18. I have remade the decision on the basis of the findings of the original judge, and the evidence that was before him, and the submissions that I have heard today. I am allowing this appeal for the reasons that I have given above.
19. Since no new evidence is required for this Tribunal to fully determine the issues in relation to the two matters that I have made my observations clear on, it is unnecessary to remit this matter to the First-tier Tribunal (which may have been the case were the remaining Grounds of Appeal to have been in issue) and it suffices for present purposes to simply state that this appeal is allowed for the reasons that I have given above.
Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Juss 13th September 2016