Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/46884/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th January 2017
On 7 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Mr FABIAN RICHARDO ARTERO BROWN
(ANONYMITY DIRECTION not made)
Respondent

Representation:

For the Appellant: Mr T Melvin (Senior Home Office Presenting Officer)
For the Respondent: Ms J Heybroek (Counsel)

DECISION AND REASONS

1. In a decision promulgated on 1st August 2016, First-tier Tribunal Judge Andonian ("the judge") allowed the appeal of Mr Brown, the respondent, against a removal decision made on 27th October 2014. The judge found that Mr Brown met the requirements of Appendix FM in relation to both the parent and spouse routes. He also found that the respondent had become a reformed person, since his convictions in 2006, that he had established private life ties in the United Kingdom having lived here for fourteen years and that there would be significant obstacles in the way of integrating into Jamaica, were he to be removed there. The judge found that it would be unreasonable to expect the children of the family to leave the United Kingdom and "absurd" of the Secretary of State to consider that they could adapt to life in Jamaica. In the final substantive paragraph (which appears not to be numbered) the judge recorded that he had considered "section 117B" and believed that it was not in the interests of immigration control for the respondent to be removed and separated from his partner and children.

2. In grounds in support of the application for permission to appeal, the Secretary of State contended that the judge erred in several respects. It was plainly incorrect that the respondent met the requirements of the rules in relation to either the partner or the parent route as he could not bring himself within E-LTRP1.1 or 1.2. The judge also erred in relation to obstacles to Mr Brown reintegrating into Jamaica, the correct test being whether there are "very significant obstacles" impeding this. The judge also erred in this context in focusing on the respondent's family life in the United Kingdom, rather than considering the obstacles he would meet in Jamaica.

3. It was also contended that although the judge indicated that he had considered section 117B of the 2002 Act, he in fact failed to do so. So far as the respondent's convictions are concerned, there was an insufficiency of reasoning in relation to the judge's conclusion that it could not be said that his presence was not conducive to the public good. The judge appeared to rely on the passage of time to justify this finding but it was unclear what weight was given to the public interest in this context. Finally, no substantial reasons were given for the judge's findings that it was unreasonable and "absurd" to expect the respondent's children to go and live with him in Jamaica.

4. Permission to appeal was granted on 5th December 2016.

5. Ms Heybroek provided a detailed skeleton argument. Attached to it were copies of the judgments in MA (Pakistan) [2016] EWCA Civ 705, AQ and Others [2015] EWCA Civ 250 and of the Grand Chamber of the CJEU in CS (case C-304/14).

Submissions on Error of Law

6. Mr Melvin said that there were five material errors of law. The judge wrongly found that the respondent met the requirements of the rules in relation to the partner route and the parent route. He assessed the obstacles to the respondent's reintegration following removal incorrectly, failing also to take into account the many years the respondent had spent in Jamaica in this context. His focus appeared to be on the family life ties in the United Kingdom rather than the position in Jamaica, where reintegration would occur. The judge assessed the 2003 and 2006 convictions wrongly in relation to the proper weight to be given to the public interest, focusing simply on the passage of time. Finally the judge's findings regarding whether it was reasonable to expect the children to return to Jamaica was insufficiently reasoned. The proper course was to set aside the decision and remit it to the First-tier Tribunal so that a proper assessment could be made on these matters by a different judge. Even if the judge had correctly found that the respondent could not meet the requirements of the rules, in order to conclude that the appeal should be allowed, he was required to identify compelling reasons why an assessment outside the rules was required.

7. Ms Heybroek relied on her skeleton argument. It was conceded that the judge erred in relation to the requirements of the rules but that error was not material. The judge was entitled on the evidence to conclude that it was not reasonable to remove the oldest child, a British citizen aged 13 who had lived in the United Kingdom all his life. He was also entitled to conclude that the respondent had a genuine and subsisting parental relationship with his children, so that there was no public interest in his removal, which, if effected, would amount to an infringement of Article 8. In relation to British children, following the Zambrano principle, the proportionality question in a non-deportation case could not be resolved on the basis that a British child might leave the United Kingdom to be with the parent. The CJEU had decided, in CS that it may be lawful for a domestic authority to make a decision resulting in an EU citizen child being removed from the EEA with their non-EEA parent or carer, but only in cases of very serious criminal offending amounting to "exceptional circumstances", not shown in the present appeal. For the purposes of section 117B(6) the correct position in respect of a British citizen child, in the light of the European authorities, is that it is only in the most serious cases that it would be "reasonable" to remove them. The judge's decision was sustainable. Even if it fell to be set aside, the decision could be remade in the Upper Tribunal and the appeal allowed under Article 8.

8. In oral submissions, Ms Heybroek said that the Secretary of State made strong representations before the judge. The judge was entitled to conclude at paragraph 9 of the decision that the respondent was now reformed and the "not conducive" finding in Mr Brown's favour was open to him. The respondent did not rely merely on the passage of time. He also asserted that he is a reformed person.

9. Overall, the decision contained findings of fact in relation to all relevant matters. The judge made a clear finding that it was not in the best interests of the children to return to Jamaica and, in the light of section 117B(6) and MA (Pakistan), if the Tribunal found that it was not reasonable to expect them to leave, that would decide the appeal.

10. In answer to a question from me regarding the approach suggested by the Court of Appeal in SS (Congo) [2015] EWCA Civ 387 and Agyarko [2015] EWCA Civ 440 which might require the judge to make clear findings that the requirements of the rules were not met and then address the "threshold question" by asking whether there were compelling circumstances justifying an assessment outside the rules, while keeping in mind as legally relevant factors the precise failures to meet the requirements of the rules in any assessment outside the rules, Ms Heybroek said that the Supreme Court had perhaps resolved this issue in Hesham Ali. That case, albeit a deportation case, showed that the Article 8 assessment was for the court or Tribunal and whether or not there is indeed a "threshold question" now requires further consideration.

11. She added that the Upper Tribunal might, if minded to set aside the decision, remake it and allow it on Article 8 grounds on the basis of the judge's findings of fact. The public interest in the respondent's removal fell away as it was not reasonable to expect his 13 year old child to leave the United Kingdom. Applying the CS approach, as the present appeal was not a deportation case, it could only be reasonable to expect such a child to leave if the evidence showed a serious level of threat from the respondent, akin to the imperative grounds required in removal cases under the 2006 Regulations.

Conclusion on Error of Law

12. I find that the decision contains material errors of law and must be remade. Notwithstanding Ms Heybroek's careful, concise and focused submissions, the errors identified by Mr Melvin undermine the integrity of the decision.

13. It is worth observing that the decision is very short, consisting of only eighteen paragraphs, with a final paragraph which is not numbered. There is a brief summary of the appellant's circumstances and those of his family members. The rules assessment is, as accepted by Ms Heybroek, wrong. The respondent cannot succeed as a partner or a parent and the judge did not correctly consider, in the private life context, whether very significant obstacles exist in relation to Mr Brown's integration into Jamaica.

14. So far as the convictions are concerned, these are dealt with rather briefly, the reasoning appearing in paragraphs 9 and 10. The judge finds that the respondent is now a reformed person but there is little detail. So far as whether or not it is reasonable to expect the respondent's children, and particularly the British 13 year old, to leave the United Kingdom, the finding of fact is, as the Secretary of State argues, not fully reasoned at all. Paragraph 16 refers to the duty under section 55 of the 2009 Act. This is followed by a statement that "it would be unreasonable" to expect the children to leave, to return to a country "where they have no ties or connections."

15. Leaving aside the lack of detail and the absence of any assessment of the ties to Jamaica revealed in paragraph 17, being the presence there of the respondent's mother and stepfather, what is missing is a structured analysis. There are two aspects to this. First, the judge's error in relation to the requirements of the rules no doubt deflected him from considering whether an assessment outside the rules was required, in accordance with the approach of the Court of Appeal in SS (Congo) and Agyarko (and other cases). Notwithstanding the Supreme Court judgment in Hesham Ali, which concerned deportation and part 13 of the rules, that approach and the need to identify compelling circumstances explaining and justifying an assessment outside the rules has not been doubted. The Supreme Court is likely to give judgment in Agyarko within the next month or two. The important point is that, on the evidence, the respondent failed to meet the requirements of the rules and those particular failures retained their legal relevance and weight in any assessment outside the Rules. There is nothing in the decision in the present appeal showing that the judge's reasoning is consistent with this approach.

16. The second important point is that the finding regarding the reasonableness of expecting the children to leave the United Kingdom itself required a proper assessment of the public interest, as now explained in MA (Pakistan). Notwithstanding the passage of time, the respondent's convictions were manifestly capable of bearing on that assessment.

17. There is merit in the Secretary of State's contention that section 117B(6) has not been properly considered. The final substantive paragraph of the decision contains the judge's finding that it is not in the interests of immigration control for the respondent to be removed but a careful reading of the preceding paragraphs reveals almost no reasoning bearing on the relevant question contained in section 117B(6)(b) of the 2002 Act.

18. So far as the Zambrano principle is concerned, no doubt this too ought to have taken into account, precisely because the family includes a British citizen child but in fact there is nothing revealing any attempt to distinguish between that child and his siblings. Paragraph 3 of the decision records that the respondent's wife said in evidence that she would consider being "forced to go with (Mr Brown)" as "a hugely unreasonable step and unduly harsh". The decision continues: "See Zambrano, see the case of CS and also Senade". That is an altogether too brief analysis.

19. Having found material errors of law, I conclude that the decision cannot be sustained and must be remade. So far as the appropriate venue is concerned, although at first sight it might be thought that the Upper Tribunal could build on the judge's findings of fact and remake the decision, on reflection this is not an appropriate step. The key findings are too briefly reasoned, or inaccurately reasoned, and there is no discernable structure regarding the rules assessment, justification for any assessment outside the rules, section 117B or the European Community law principles. Remaking the decision should include all of these.

20. As noted above, the Supreme Court is likely to give judgment in Agyarko soon, which should assist in the remaking of the decision. Mr Melvin told me that CS will be heard in the Upper Tribunal at the end of January and guidance will then emerge on the relevance and impact of European Community law, including in relation to section 117B(6) of the 2002 Act.

Notice of Decision

The decision of the First-tier Tribunal is set aside. It shall be remade in the First-tier Tribunal, at Taylor House, before a judge other than First-tier Tribunal Judge Andonian. No findings of fact are preserved.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge R C Campbell