Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/35482/2014
IA/05997/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 7 March 2017
On 19 April 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

Marie Elizabeth Edwards (first Respondent)
David Hugh Sylvester Edwards (second Respondent)
(ANONYMITY DIRECTION NOT MADE)
Respondents

DECISION AND REASONS

1. I shall refer to the appellants as the respondents and to the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). Marie Elizabeth Edwards was born on 4 September 1970 and David Hugh Sylvester Edwards was born on 30 March 1961 and both are citizens of Jamaica. The first appellant is the wife of the second appellant.
2. The first and second appellant married in Jamaica on 21 September 2011. Mrs Edwards had obtained indefinite leave to remain in the United Kingdom in March 2006. Following the marriage, Mr Edwards entered the United Kingdom on 18 October 2012 with leave to remain as the first appellant’s spouse until 5 December 2014. On 7 February 2014 at Worcester Crown Court, the first appellant was sentenced to eighteen months’ imprisonment for supplying class A controlled drugs and concealing, disguising, converted, transferring or removing criminal property. She was issued with a notice of liability to deportation on 11 February 2014.
3. The first appellant’s appeal in respect of the deportation order was not before the First-tier Tribunal Judge (Judge Hussain). As Judge Hussain noted [8], “having had her ILR revoked, Mrs Edwards applied under Section 10 of the Nationality, Immigration and Asylum Act 2002 for a certificate that she had a right of abode in the United Kingdom”. Her application was refused because certificates of entitlement ceased to be valid on the expiry of the passport to which it was affixed. This was the case with Mrs Edwards. Mr Edwards’s status in the United Kingdom is dependent upon his wife’s settled status and a removal order was made against Mr Edwards on 26 January 2015. Before the First-tier Tribunal, it was conceded on behalf of both appellants that neither could succeed against the grounds for refusal and that the appeals were being pursued under Article 8 ECHR only. Indeed, before the First-tier Tribunal
both representatives very helpfully narrowed the area of dispute this being the proportionality of any decision to remove the appellants. It was accepted the outcome for Mr Edwards’s appeal was linked to the outcome for Mrs Edwards’s appeal. [10].
4. As regards Mrs Edwards, the judge noted [21] that Mrs Edwards had been of good character with no previous contact with the police before her arrest and conviction. The judge sentencing Mrs Edwards had referred to the fact that she had been “manipulated by her son”. In his sentencing remarks, the judge “deeply regretted” not being able to suspend her custodial sentence. The judge went on to consider the “strong public interest in removal following a deportation order.” [25]. He noted that Mrs Edwards had been “misadvised” by solicitors not to pursue an appeal against the deportation order but that she should renounce her Jamaican nationality and apply instead for a right of abode in the United Kingdom. The judge found [26] that
Mrs Edwards was the subject of an elaborate fraud and but for the advice of the firm she would have appealed the deportation order. In the light of this, Mrs Edwards ............ seeking to prevent her removal under Article 8 of the ECHR was not challenging the deportation order is not inconsistent for the reasons that I have set out.
The judge noted the first appellant’s medical problems (she has been diagnosed with lymphangioleiomyomatosis, a progressive disease of the lungs, kidneys and lymphatic system. The judge found that there was no treatment available for the first appellant’s condition in Jamaica. He noted that Mrs Edwards is dependent on Mr Edwards for care and support. There was little chance that Mr Edwards would find work in Jamaica.
5. In turning again to the public interest, the judge stated that “the deportation order lies at the very top of the public interest considerations” [30]. However, he found that there was “no deterrence in returning somebody like Mrs Edwards to a country where she can obtain no treatment for her condition.” Further “because Mr Edwards is [Mrs Edwards’ carer] … it would be disproportionate to return him to Jamaica.”
6. The Secretary of State’s grounds of appeal submit that the judge failed to consider the Article 8 appeal “through the lens of the Immigration Rules and Section 117 [of the 2002 Act – as amended]”. At [5], the Secretary of State submits that the judge failed to make a finding on the likely impact on Mrs Edwards’s health should she be returned to Jamaica where the experimental treatment which she is receiving in the United Kingdom would not be available (the First-tier Tribunal had noted that “in the United Kingdom there is only one specialist centre that deals with the disease and does so using unlicensed drugs”). The respondent argues that it was unclear as to how Mrs Edwards’s condition is likely to be improved significantly by remaining in the United Kingdom “to such a degree that Article 8 is engaged.”
7. Permission to appeal to the Upper Tribunal was granted by Judge Scott-Baker on 20 October 2016.
8. Paragraph 1 of the grounds of appeal reads as follows:
The first appellant is the subject of a deportation order which was signed on 20 March 2014 and therefore it is respectfully submitted that the FtJ has materially erred in law in their approach by failing to consider Article 8 through the lens of the Immigration Rules and Section 117. It is further submitted that the FtJ has failed to consider the public interest in the deportation of foreign national offenders by reference to Section 117C.
9. The first appellant, Mrs Edwards is a foreign criminal who was sentenced to eighteen months’ imprisonment for supplying class A drugs. The deportation order signed in respect of Mrs Edwards remains in force although she has withdrawn her appeal against that order. The status of Mr Edwards in the United Kingdom depends entirely upon that of Mrs Edwards; it is not suggested by the appellants that Mr Edwards should remain if Mrs Edwards is deported to Jamaica. At [5], Judge Hussain stated that, “Mrs Edwards’s appeal against the deportation order is not a matter before me, that being subject to other complications which I will touch upon later.” At [26], Judge Hussain stated that, “the deportation order remains extant because Mrs Edwards was misadvised by a firm that is presently under investigation. It was their advice that she should not pursue an appeal against a deportation order and that it was more appropriate for her to renounce her Jamaican nationality and apply instead for a right of abode in the United Kingdom. The firm in question took a substantial amount of money from the appellant and ... to serve papers on the Jamaican High Commission renouncing her Jamaican nationality but never actually did so”.
10. Curiously, the judge then went on to make a finding that Mrs Edwards had been “subject of an elaborate fraud.” It is not clear to me on what basis or for what reason Judge Hussain has made that finding; there is no evidence that the firm in question has ever been investigated let alone convicted of such a serious criminal offence. In any event, he found that, “but for the advice of the firm, she would have appealed the deportation order.” Mr Bates, who appeared before the Upper Tribunal for the Secretary of State, posed a somewhat different reason for the course of action taken by Mrs Edwards. By making an application for a certificate of entitlement to a right of abode (and in the case of Mr Edwards to vary a spouse visa) both appellants appear to have persuaded Judge Hussain that the statutory provisions in Section 117 of the Nationality, Immigration and Asylum Act 2002 (as amended) should not apply. Mr Bates submitted that such provisions would obviously apply in a deportation appeal. Indeed, he submitted that Judge Hussain had erred in law by failing to apply the provisions in particular of Section 117C in the present appeal. Section 117C provides as follows:
117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the
greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a
period of imprisonment of four years or more, the public interest
requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of
C’s life,
(b) C is socially and culturally integrated in the United Kingdom,
and
(c) there would be very significant obstacles to C’s integration into
the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship
with a qualifying partner, or a genuine and subsisting parental
relationship with a qualifying child, and the effect of C’s deportation on
the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of
imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
Part 2 — Appeals etc
19
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
11. I agree with Mr Bates’s submission. I do so for the following reasons. First, I note that Section 117A(2) deals with what is described in the statute as “the public interest question.” Sub-Section (3) provides that “the public interest question” means the question of whether an interference with a person’s right to respect for a private and family life is justified under Article 8(2). Sub-Section (2) provides that,
In considering the public interest question the court or Tribunal must (in particular) have regard (a) in all cases to the considerations listed in Section 117B and (b) in cases concerning the deportation of foreign criminals to the consideration listed in Section 117C.” [My emphasis].
Further, Section 117C is headed, “Article 8: additional considerations in cases involving foreign criminals.” [My emphasis]. Finally, Section 117C(i) provides that, “the deportation of foreign criminals is in the public interest.” In my opinion, in each case where I have added emphasis above, the statute and in particular Section 117C should apply where an appellant is a foreign criminal and he or she is the subject of an existing deportation order. The provisions of Section 117C are not restricted to circumstances in which an individual seeks to appeal against the making of a deportation order. Mrs Edwards is a foreign criminal and Section 117C provides that her deportation is in the public interest. Moreover, the appeal which was before the First-tier Tribunal and is now before the Upper Tribunal may properly be described as a “case involving a foreign criminal.” Further, Judge Hussain has clearly erred in law by failing to apply the provisions of Section 117B which details “public interest considerations applicable in all cases.” He has further erred by failing to apply the provisions of Section 117C. Accordingly, I set aside his decision.
12. There will need to be a new fact-finding exercise by the First-tier Tribunal in these appeals. Since Section 117C(3) applies to Mrs Edwards, the public interest will require her deportation unless exception 1 applies (exception 2 clearly does not apply to her). The next Tribunal will therefore need to consider the question of her lawful residence in the United Kingdom, whether she is socially and culturally integrated in this country and whether there would be very significant obstacles to her integration into Jamaica. Further, the next Tribunal will need to consider the public interest concerned with the deportation of Mrs Edwards in the light of Section 117C(2) (“the more serious the offence committed by a foreign criminal the greater is the public interest in the deportation of the criminal.”) Although he did not do so by reference to Section 117C, Judge Hussain placed great emphasis on the sentencing judge’s remarks. However, Section 117C(2) focuses exclusively upon the seriousness of the offence committed by the foreign criminal, in the case of Mrs Edwards that of supplying a class A drug. Although fact-finding will be a matter for the First-tier Tribunal, it does not seem that the seriousness of the offence actually committed by Mrs Edwards to which she was sentenced to imprisonment may necessarily be mitigated (as Judge Hussain seemed to think was the case) by the sentencing judge’s remarks.
Notice of Decision
13. The decision of the First-tier Tribunal which was promulgated on 16 March 2016 is set aside. None of the findings of fact shall stand. The appeals shall be returned to the First-tier Tribunal (not Judge Hussain) for that Tribunal to remake the decision.
14. No anonymity direction is made.

Signed Date 4 April 2017

Upper Tribunal Judge Clive Lane