Tribunal decisions

The decision

ST

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22604/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 November 2016
On 14 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

CHARLES [O]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Balroop, counsel
For the Respondent: Mr K Norton, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Nigeria who appealed against the decision of the respondent on 17 February 2014 to refuse to vary his leave to remain in the UK and to remove him under s47 of the Immigration, Asylum and Nationality Act 2006. His appeal was heard by First-tier Tribunal Judge Carroll ("the FTTJ") who dismissed his appeal in a decision promulgated on 20 April 2016.
2. No anonymity direction was made in the First-tier Tribunal and no request has been made for such a direction; none is required.
3. Permission to appeal was granted by Upper Tribunal Judge Kamara on 5 October 2016 as follows:
"2. It is arguable that the judge's assessment of the appellant's Article 8 claim outside [sic] did not adequately take into consideration his personal circumstances which include over 30 years' residence in the United Kingdom as well as the presence of his British children.
3. All grounds may be argued."
Thus the appeal came before me today.
4. Mr Balroop, for the appellant, provided the background to the application which was the subject of the appeal: the appellant had applied for leave to remain on human rights grounds, having previously been granted discretionary leave to remain after a successful appeal in 2011 against a decision to deport him. His application had been refused because he did not meet the suitability criteria in S-LTR.1.3, 1.5 and 1.6 because of his convictions, the same convictions which had given rise to the decision to deport him. Mr Balroop submitted that the appellant had been penalised twice for the same convictions. He acknowledged there was no legal authority on the issue, but his primary submission was that it was inequitable for the respondent to rely on the same ground for removing the appellant when he had already appealed successfully against a decision to deport him on that ground. The appellant had not committed any offences between the date of grant of discretionary leave and the refusal which had given rise to the appeal before the FTTJ. Mr Balroop referred to R (Fitzroy George) v SSHD [2014] UKSC 2 as being relevant in that the appellant was required to "regain ILR" by applying for it after revocation of the deportation decision. Mr Balroop accepted that the appellant's circumstances had changed since the appeal decision in 2011 such that he no longer qualified on the grounds of his family life but his private life had accrued: he had been in the UK for over 20 years, discounting the period of imprisonment. He submitted that, in effect, the respondent could not deport the appellant because of his criminal offences but was able to remove him as a result of them.
5. Mr Balroop's second point was that the FTTJ had stated there was a dearth of evidence as to what the appellant had been doing in the UK; paragraph 24 of the decision referred. However, the appellant's bundle contained various skills certificates which the FTTJ had failed to take into account. The FTTJ had looked at s117B of the 2002 Act yet this section was relevant to the assessment of proportionality as part of an assessment outside the Rules. If the FTTJ were considering the appellant's private life, he should have done so by reference to paragraph 276ADE; the appellant fulfilled all the criteria bar the suitability requirements. He submitted the FTTJ had not looked at 276ADE, in considering whether the appellant's circumstances were compelling, as he should have done.
6. For the respondent, Mr Norton noted the FTTJ had adopted the reasons for refusal cited at paragraphs 5-11. The FTTJ had referred specifically to the suitability requirements and paragraph 276ADE. The appellant would never meet the suitability requirements; it mattered not that the appellant's appeal against the decision to deport had been successful. That decision had been taken outside the Rules. The FTTJ had been correct to apply the rules at the date of decision. The FTTJ had addressed the appellant's private life at paragraphs 24-27. He had taken into account the appellant's ability to meet the criteria in 276ADE (apart from the suitability criteria). It could not be said that the appellant's ability to meet 276ADE(1)(iii) gave the appellant an entitlement to live here. The FTTJ had taken into account the length of the appellant's residence.
7. Mr Balroop responded that it was recognised that the appellant had been subject to automatic deportation which had been outweighed by the appellant's protected rights at the time of the appeal in 2011. It was acknowledged that the changes to the Rules in July 2012 had brought into force the suitability criteria. The appellant did not challenge the FTTJ's finding that he did not meet Appendix FM; the sole issue was the FTTJ's consideration of his right to a private life particularly in the context of the earlier successful appeal against deportation and his lack of further convictions. He submitted that it was an error of law for the FTTJ not to conduct a proportionality assessment outside the Rules.
Findings
8. There is no challenge to the finding of the FTTJ that the appellant did not meet the criteria in Appendix FM or paragraph 276ADE(1) as a result of his falling foul of the suitability criteria at S-LTR.1.3, 1.5 and 1.6.
9. Whilst Mr Balroop suggests it is inequitable for the appellant to be "penalised" for convictions previously taken into account in connection with the deportation decision, I am unable to accept this submission. The tribunal in 2011 took into account the appellant's circumstances, including his criminal history and his family and private life, at that time. That family life included his marriage to a British citizen and "close relationship" with his two British minor children and his stepchildren. Those circumstance had changed markedly by the hearing before the FTTJ in April 2016 such that he found no evidence of a subsisting relationship between the appellant and his claimed partner. He also noted the appellant's children and stepchildren did not live with the appellant and none attended the hearing to give oral evidence. The FTTJ noted there was "no evidence before me to show that, if a close relationship existed in 2011, it continues to do so now". Thus the circumstances which gave rise to the successful appeal against the decision to deport the appellant and the subsequent grant of discretionary leave did not exist at the hearing before the FTTJ. I cannot accept the submission of Mr Balroop that the appellant has been penalised for the respondent's reliance on the same convictions in respect of two decisions: both the respondent and the FTTJ were entitled to take the appellant's criminal history into account in considering whether the appellant fulfilled the criteria for variation of his leave to remain on human rights grounds. He did not meet those criteria because of his criminal conviction and there is no error of law in the FTTJ's finding that the appellant did not meet the criteria in Appendix FM and paragraph 276ADE.
10. I turn to the second issue raised by Mr Balroop namely the criticism of the FTTJ's reasoning with regard to the assessment of the appellant's private life in the UK. It was submitted that the FTTJ had overlooked the various certificates of his achievements in the appellant's bundle. The FTTJ referred at paragraph 1 to having read the appellant's bundle. Nine of the certificates in the bundle were issued between 2008 and 2010. Three were issued in 2014, two relating to preparing for employment and one relating to an assessment in health and safety in the workplace. Given the appellant's length of residence in the UK, the FTTJ was justified in finding there was a paucity of evidence relating to the appellant's private life. I do not consider that his failure to refer specifically to these certificates undermines the validity of his findings.
11. I am satisfied that the FTTJ took into account in making his findings about the appellant's private life the "significant period" of his residence here and his varied immigration status (paragraph 24 refers). He was entitled to take into account the paucity of the evidence relating to the appellant's private life. He noted the extent of the appellant's ties with Nigeria and the ability of the appellant to adapt to life in Nigeria; he noted the appellant's extensive family network there and that he would be able to continue his private life in that country. These are matters he was entitled to take into account in considering whether there were compelling circumstances such as to warrant consideration outside the Rules and pursuant to the Article 8 jurisprudence. The FTTJ did not take into account, in making these findings, the appellant's criminal history or convictions.
12. It is unfortunate that the FTTJ, having made a finding that the appellant did not meet the requirements of Appendix FM and paragraph 276ADE(1) at [14], stated at [14] that "this application falls to be considered by reference to Article 8 of the 1950 Convention only". That sentence is somewhat misleading because the FTTJ then goes on, properly, to make findings with regards to the appellant's family and private life at [15-26] before deciding at [27] that the "facts of the appellant's case do not give rise to any exceptional or compelling circumstances". This is what he was required to do (SS (Congo) and Ors [2015] EWCA Civ 387 and Sunassee [2015] EWHC 1604) and, having found there were no compelling circumstances, there was no need for the FTTJ to go further and undertake a proportionality assessment in accordance with the Article 8 jurisprudence.
13. For these reasons, I am satisfied the decision of the FTTJ does not contain any material error of law. It must stand.
Decision
14. The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.
15. I do not set aside the decision and reasons of the First-tier Tribunal.

A M Black
Deputy Upper Tribunal Judge Dated: 11 November 2016