Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31825/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 August 2016
On 19 August 2016

Before

UPPER TRIBUNAL JUDGE KAMARA
DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MO
(anonymity direction made)
Respondent

Representation:
For the Appellant: Mr I Jarvis, Senior Home Office Presenting Officer
For the Respondent: Ms E Greenwood, counsel instructed by Fadiga & Co Solicitors

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Amin promulgated on 25 March 2015, in which she allowed the respondent's appeal against a decision to refuse him leave to remain in the United Kingdom on Article 8 ECHR grounds, both within and outside the Immigration Rules.
2. Permission to appeal was granted by First-tier Tribunal Judge Pooler on 28 May 2015.
Anonymity
3. A direction has been made previously to protect the interests of the respondent's child and we direct that this continue.
Background
4. The respondent is a national of Nigeria, born on [ ] 1994. He entered the United Kingdom during 2003, aged 8 in order to join his parents, who were only very recently granted leave to remain along with a younger brother, E. The respondent and an elder brother AO, who has an outstanding appeal (IA/30792/2014) were left in the care of their paternal grandmother in Nigeria from 1999 until they came to the United Kingdom. A further brother, P, was deported from the United Kingdom in 2012. A series of applications for leave to remain were made on the respondent's behalf, culminating in the latest, made on 27 November 2012, the refusal of which is the subject of his appeal. That application was made on the basis that the respondent met the requirements of paragraph 276ADE(1)(v) of the Rules. The respondent has been convicted of a number of criminal offences. The respondent's child, T, was born in the United Kingdom on 30 October 2010. T is a British citizen. The respondent is now separated from T's mother.
5. The Secretary of State refused the said application on 24 July 2014, concluding that the respondent's presence in the United Kingdom was not conducive to the public good; the respondent was identified as a high-harm individual under Operation Nexus and he failed to satisfy the suitability requirements of Appendix FM.
6. The respondent appealed to the First-tier Tribunal.
The hearing before the First-tier Tribunal
7. First-tier Tribunal Judge Amin allowed the appeal under the Immigration Rules, finding that the respondent met the suitability requirements. She also allowed the appeal under Article 8 ECHR, outside the Rules, on the basis of the respondent's family life with his child and that there were very significant obstacles to his integration into Nigeria.
The grounds of appeal
8. There were four main grounds of appeal originally.
9. Firstly, it was argued that the judge erred in assessing the appeal under the incorrect Immigration Rule; she had considered S-LTR 1.4 and 1.5 only, whereas it was said that she ought to have considered S-LTR 1.5 and 1.6.
10. Secondly, it was said that the judge failed to give reasons or adequate reasons for finding that the respondent was not a persistent offender and that his removal would not be conducive to the public good.
11. Ground three asserted that an Article 8 assessment should only be carried out when there are compelling circumstances not recognised under the Rules.
12. The fourth ground argued that the judge failed to give adequate reasons regarding the respondent's relationship with his child or why it would not be reasonable for the child to leave the United Kingdom or unduly harsh on the child if the appellant was removed.
13. Permission to appeal was granted on the first ground, however it was said that all grounds may be argued.
14. Those representing the respondent served a response under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The Secretary of State's appeal was opposed. It was argued that the judge referred to the correct suitability requirement but that if she erred it was not material in the light of her findings, in brief, that the respondent was a reformed character. Ground two was described as consisting of arguments which were made before the judge and which were found to be unpersuasive. Similarly ground four. With regard to ground three, the judge had followed the correct approach and there was no additional threshold to be crossed prior to considering Article 8 ECHR outside the Immigration Rules.
15. At a hearing on 15 September 2015, the Secretary of State put forward a further ground of challenge relating to the judge's approach to the serious harm test in S-LTR1.5. These proceedings were adjourned in order for an application to be made to amend the grounds of appeal.
16. On 12 November 2015, directions were given for this appeal to be heard with that of his brother AO, whose appeal was also allowed by a First-tier Tribunal Judge. It was agreed that material common to both respondents would be shared. The matter was, subsequently, set down for a hearing on 16 December 2015. That hearing proceeded as a case management hearing only because the Secretary of State's application for permission to appeal had yet to be resolved.
17. The Secretary of State's skeleton argument contended that the judge misunderstood the proper approach to the question of serious harm for the purpose of the Rules and section 117C(2)(c)(ii) and had failed to provide lawful reasoning as to why the harassment offence, for which the appellant had been imprisoned for 9 months, did not cause serious harm.
18. On 6 May 2016, Upper Tribunal Judge Southern extended time to appeal and granted permission, considering the additional point "plainly arguable."

The hearing
19. Mr Jarvis relied on a further skeleton argument, in which he arranged the previous 5 grounds into 8 grounds as well as raising an additional point regarding the duty of candour upon litigants in statutory appeals.
20. With regard the candour point, Mr Jarvis advised us that the respondent's brother AO was in attendance at his appeal hearing but did not give evidence. At that time AO had won his appeal and it had been promulgated. Owing to the negative findings regarding the credibility of the claims about the lack of family in Nigeria, he argued that it was the duty of the respondent to produce AO's decision and reasons to Judge Amin.
21. Mr Jarvis stated that he did not pursue ground 4, which related to the respondent's relationship with his child. He confirmed that the Secretary of State accepted that the respondent had a genuine relationship with his child despite the geographical distance between them.
22. Mr Jarvis began his submissions on the additional ground, upon which permission was granted by Upper Tribunal Judge Southern. He drew our attention to the respondent's police national computer record, showing a conviction for harassing a 15 year-old girl and a sentence of 9 months. It was for this reason that the respondent did not, in his view, meet the suitability criteria. He argued that the judge's findings as to serious harm were limited. Under the Immigration Directorate Instructions, it was a matter for the Secretary of State to decide if serious harm was caused. It was difficult to discern why the judge found that the Secretary of State's decision was unlawful regarding the issue of serious harm. She had said that the respondent was not a persistent offender and had conflated this issue with serious harm. He argued that it was plainly a serious matter to warrant a 9-month sentence. Nonetheless, Mr Jarvis accepted that there was no error in the judge's finding regarding whether the respondent was a persistent offender and she was entitled to give what weight she wished as to whether he had turned his life around.
23. Mr Jarvis drew our attention to the judge's failure to address the remainder of Appendix FM and EX.1(a) in particular, having found the suitability requirements of the Rules were met; instead she had proceeded to consider matters outside the Rules.
24. Returning to those of the original grounds which were still relied upon, Mr Jarvis emphasised that the judge had not considered S-LTR 1.6 at all; that her approach to Article 8 outside the Rules was flawed and the judge erred in her findings for not considering that the respondent could be lawfully separated from his child in view of the fact that he was already enjoying family life from a distance.
25. With regard to the judge's finding that there were very significant obstacles to the respondent reintegrating in Nigeria, this ought to have been addressed during her consideration under the Rules rather than during her proportionality assessment. The findings of the judge in AO's case were relevant to this, in that AO and his family had lied about the presence of family in Nigeria.
26. Finally, Mr Jarvis argued that the judge was obliged to apply s.117B (6) given that there is a qualifying child, however there was no reference to this sub-section nor description of it.
27. Ms Greenwood emphasised that the application made by the respondent was under paragraph 276ADE (1) (v), in that he was at the time of the application aged over 18 years old and under 25 years and had spent at least half of his life living continuously in the UK. That had been accepted by the respondent at paragraph 22 of the Secretary of State's decision and therefore the only issue remaining, under the Rules was suitability. She argued that the decision letter did not address any specific offending which was said to have caused serious harm. In addition, at the hearing the judge's attention was not drawn to any offending or behaviour alleged to cause serious harm. She acknowledged that the judge had neglected to mention S-LTR 1.6, however she had these requirements in mind, referred to them in her decision and made relevant findings. In terms of the respondent's conduct, the judge found that he had turned his life around. In relation to original ground 2, Ms Greenwood did not labour the persistent offender point in view of Mr Jarvis' concession.
28. With regard to the third ground, Ms Greenwood argued that the appeal was allowed under the Rules and accordingly the judge's findings outside the Rules even if erroneous were immaterial. She advised us that it had been argued that the respondent would meet the rules for leave to remain as a parent which would also be affected by the suitability requirements. Given the judge's finding that the respondent had a genuine and subsisting relationship with his child, EX.1(a) was relevant as he had no leave to remain in the United Kingdom. She suggested that this might have been why the judge considered whether it was reasonable for the child to leave the UK in her consideration outside the Rules.
29. Ms Greenwood confirmed that the judge was not required to find that there were very significant obstacles as the application was based on age and residence only, however this issue informed her findings on proportionality as she found that the respondent had no-one in Nigeria. The judge's ignorance of AO's case did not impact on whether there was an error of law.
30. With regard to the duty of candour, Ms Greenwood argued that this did not extend to appellants. She made the point that the Secretary of State was the respondent in both appeals, whereas neither brother was a party to the other's hearing. Alternatively, if the duty of candour was breached, the only overlapping findings related to the respondent's family in Nigeria which were immaterial to the outcome of the appeal.
31. Ms Greenwood argued that the judge made findings that the respondent had a relationship with a British child and that it was not reasonable for this child to leave to the United Kingdom. She reached reasoned conclusions and had section 117B been considered, she would have concluded public interest did not require his removal.
32. With regard to the additional ground, Ms Greenwood advised us that the evidence before the judge was an emailed note of the respondent's counsel in the criminal case. Essentially, after hearing evidence from complainant, the judge raised the issue of a compromised plea to only 1 charge of harassment, over a period of 10 days, to which the respondent entered a guilty plea and following which he was sentenced to time served. She argued that it would be wrong to base findings of serious harm on police evidence and nexus material when the criminal hearing took a very different turn. She contended that clearly the claimant did not come up to proof and that Judge Amin could not be criticised for concluding that the potential harm was very different to what was initially alleged. Nor could any sound inference be drawn from the length of the sentence as it would not have been in the respondent's interest for his counsel to seek a suspended or community sentence, which would have been viewed very differently by the Secretary of State. Ms Greenwood argued that there was no evidence of harm to the victim. There were no judge's sentencing remarks, no victim impact statement and the refusal letter did not point to a specific instance of serious harm. While there was not a substantial focus on the issue of serious harm in the judge's decision, this was down to the Secretary of State's evidence. She urged us to dismiss the appeal.
33. In response, Mr Jarvis argued that it should have been plain to the judge from the offences listed in the refusal letter, that the 9-month sentence for harassment was the most serious of offences. It did not need to be underlined further. The Secretary of State accepted that the respondent fell within paragraph 276ADE(1) (v), however in his appeal, the respondent was relying on his relationship with his child, therefore the judge had to make lawful findings under Appendix FM in terms of a reasonableness assessment and this was not done. It was unclear what journey the judge took and she lost sight as to what was applicable and the relevant tests. Another example of the judge's loss of direction was her consideration of paragraph 276ADE(1)(vi) outside the Rules when this was not the basis for application. If suitability requirements were met this would be a complete answer to the case under the Rules. The judge's approach regarding precariousness was also incorrect. This issue was not affected by the age of the appellant. Finally, regardless of what occurred in court, the harassment matter was the most serious conviction and not an allegation. It should have been the centrepiece of the judge's finding that no serious harm caused, yet there were no findings that the Secretary of State's decision was unlawful or not in accordance with the law or guidance. He argued that we had heard speculation regarding the compromise plea, however it did not assist the respondent that he was prepared to accept a 9-month sentence for the harassment of a child. He urged us to set aside the judge's decision.
Error of Law
34. After hearing from the parties, we reserved our decision on the error of law. Having considered the matter subsequently, we found that the decision of the First-tier Tribunal was infected by material errors of law. Our reasons are as follows.
35. The first ground argued that the judge did not consider S-LTR 1.6 of the Rules in reaching her decision. That paragraph reads as follows:
S-LTR.1.6. The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3. to 1.5.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.
36. The judge noted, at [65] of her decision, the submissions of the Home Office presenting officer, to the effect that the Secretary of State was relying on S-LTR 1.5 and 1.6 of the Rules. At [95], under a subheading of "The Law" the judge set out the "particular sections relied upon" by the Secretary of State as being "S-LTR 1.4 and 1.5." The judge proceeded to reproduce the contents of S-LTR 1.4 and 1.5.
37. Between [101] and [116] the judge set out her reasons for finding that the respondent did not fall foul of the suitability requirements of the Rules. In those findings, there are multiple references to the content of S-LTR 1.5 which reads as follows:
S-LTR.1.5. The presence of the applicant in the UK is not conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.
38. At [105] the judge summarised the Secretary of State's case, stating the respondent's "profile demonstrates that (h)is presence is not conducive to the public good and his offending has caused serious harm or that he is a persistent offender." These phrases are lifted from S-LTR 1.5. The judge did not then summarise what the Secretary of State had to say about S-LTR 1.6. Instead she proceeded to consider whether the respondent's offending had caused serious harm or whether he was a persistent offender.
39. At [115] the judge summed up her findings in the preceding paragraphs, concluding that the respondent "presents a low risk of reoffending at the present time;" that he "cannot be considered to be a persistent offender or that he caused serious harm to any of his victims."
40. While it is fair to say that during her consideration the judge touched upon issues which could be said to be relevant to the content of S-LTR 1.6, she failed to appropriately direct herself, engage with that provision or reach a decision as to whether the respondent's character, associations or other reasons made it undesirable to allow him to remain in the United Kingdom.
41. The two above-mentioned provisions were the sole matters before the judge and she failed to address one of them entirely. This, by itself, is sufficient to justify a finding of a material error of law. Nonetheless, we will briefly mention the other grounds still relied upon by the Secretary of State.
42. The additional ground, upon which leave was granted at a late stage, criticised the judge's approach to the question of serious harm in relation to S-LTR 1.5. The offence in issue, was one of harassment of a 15 year-old girl. The definition of serious harm in the Immigration Directorate Instructions, which we were told were before the judge, includes an offence which has "caused serious physical or psychological harm to a victim..." The material before the judge included a bundle of evidence produced under the auspices of Operation Nexus as well as a statement from a police officer which describes the offence, which involved repeated advances of a threatening nature via social media and an allegation that the respondent had approached the child in public, produced a knife and touched her in a sexual manner. While the respondent was convicted only for harassment over a 10-day period and the other charges were withdrawn, it is of note that the seriousness of the offence meant that the starting point for the case was the Crown Court rather than the Magistrates Court because the offence included sexual threats towards a vulnerable person. The judge's finding at [110] was as follows; "I do not agree...that this offending caused serious harm." That bare finding, which appeared to be based on the respondent's age at the time the offence took place (it is not clear to us if he was either 17 or 18 at the time of the 10-day period of offending to which he pleaded guilty) was insufficient given the age of the victim and the evidence before her, none of which she referred to.
43. The judge erred in considering and determining an issue which was never before her, that of whether there were very significant obstacles to the respondent integrating into Nigeria. Not only was this never the respondent's case, the judge did not consider this matter as part of her consideration under the Rules but in her consideration of Article 8 outside the Rules. At this juncture we would indicate that we were not persuaded that the respondent breached any duty of candour in relation to not disclosing the decision in the appeal of his brother AO. Given that he was not claiming that there were any very significant obstacles to his integration into Nigeria and this was not the basis of his application to the Secretary of State, the decision of AO was of limited relevance to his appeal. It follows, that the judge's findings were unnecessary and were, to some extent, unsupported by the evidence before her.
44. The judge set out section 117 of the 2002 Act in full in her decision. At [132] she stated that she gave weight to aspects referred to in the preceding paragraph, which included the respondent's ability to speak English. That approach was disapproved, most recently, in Rhuppiah v SSHD [2016] EWCA Civ 803. There, Sales LJ held that the factors in section 117B (2) and (3) were negative factors if they were not met, but that the converse was not the case. That is, "it does not follow that because a person is able to speak English that it is in the public interest that they should be given leave to enter."[61].
45. At [134] the judge concluded that the public interest did not require the respondent's removal because he has a genuine and subsisting relationship with his child, whom it would not be reasonable to expect to leave the United Kingdom. There is no clear indication as to how she decided the reasonableness issue. There was no reference in the judge's findings on this matter to the respondent's offending, his immigration status or that he was conducting his relationship with the child at a distance. That analysis was insufficient in view of what was held by the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705 at [45] "In my judgment, if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the "unduly harsh" concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)."
Decision
The making of the decision of the First-tier Tribunal involved the making of an error of on a point of law.
The decision of the First-tier Tribunal is set aside in its entirety, with no findings preserved.
Directions
This appeal is remitted, de novo, to the First-tier Tribunal to be heard by any judge except Judge Amin and Judge Kimnell
The appeal is to be listed at Hatton Cross with a time estimate of 4 hours.
The appeal is to be heard in the same list as the remitted appeal of AO - IA/30792/2014.

Signed: Date: 11 August 2016

Upper Tribunal Judge Kamara