Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/49108/2014

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 5 December 2016
On 16 February 2017

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

fm
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms V Easty, Counsel instructed by Elder Rahimi Solicitors
For the Respondent: Mr D Clarke, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of the Democratic Republic of Congo ("DRC"), born on 20 January 1984. On 4 December 2014 a decision was made to make a deportation order against him pursuant to section 32(5) of the UK Borders Act 2007 following his convictions for criminal offences.
2. His appeal against the respondent's decision came before First-tier Tribunal Judge Bart-Stewart ("the FtJ") on 21 August 2015, following which she dismissed the appeal. Although the appellant has a number of previous convictions, the most recent, and which prompted the decision to make a deportation order which is subject to this appeal, was an offence of possession with intent to supply class A drugs, for which he received a sentence of three years and four months' imprisonment.
3. The appellant's grounds of appeal in relation to the FtJ's decision can be summarised as follows. Ground 1 argues that the FtJ referred to provisions of the deportation Rules which had no application to the appellant's appeal and which the FtJ failed to recognise. The corollary of that argument is that the FtJ had failed to apply the correct provision of the Rules. It is also argued that the FtJ had failed to make any explicit findings in respect of paragraph 399A of the Rules (residence, integration and very significant obstacles to integration). The respondent had accepted that the appellant had been lawfully resident in the UK for most of his life, although the other aspects of that Rule were not accepted. However, whilst the respondent had given detailed reasons in the decision letter for her views in that respect, and argument had been advanced before the FtJ on the issues, the FtJ had failed to make findings in that regard.
4. Ground 2 (the Devaseelan point) contends that the FtJ failed to have regard to the findings of fact in relation to a hearing before the First-tier Tribunal ("FtT") following his appeal on 2 December 2008 against a deportation decision. The findings of fact are set out at [14] of the grounds. Insofar as the FtJ did make findings that were different from those made in the earlier appeal, she had failed to explain why she had come to those views. Similarly, it is argued that no findings in relation to the appellant's potential for integration into the DRC had been made.
5. Ground 3 argues that instead of considering whether there were very compelling circumstances over and above those described in paragraphs 399 and 399A, the FtJ had asked the question as to whether there were any "exceptional circumstances" as to why deportation was not the proper course. That, it is argued, was not the correct test. Similarly, the FtJ had failed to consider and apply ss.117A-D of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act").
6. The argument in ground 4 relates to the FtJ's assessment of the likelihood of re-offending. It is argued that the FtJ had referred to an OASys assessment but had failed to take into account the latest National Offender Management Service ("NOMS") Report of 14 July 2014 and the letter from the Offender Manager dated 12 August 2015. The grounds assert that those indicated a lower risk than was found by the FtJ.
Submissions
7. I summarise the submissions made by the parties. Ms Easty relied on the written grounds. She referred to ground 2 which she reiterated. As regards ground 1, I was referred to the respondent's 'rule 24' response which accepted that the FtJ had not explicitly dealt with the social and cultural integration question, although nevertheless asserting that there was a strong implication in the FtJ's decision of a lack of integration. However, it was submitted on behalf of the appellant that the lack of explicit consideration must be material. In particular, nothing was referred to which worked in favour of the appellant, for example, the length of time that he had been here, and I note the other matters set out in the grounds in terms of his having been educated in the UK from the age of 9 years and having grown up adopting British social and cultural habits, as well as acquiring some modest qualifications.
8. Mr Clarke submitted that ground 1 proceeds on a false premise. As I understood his submissions, they were to the effect that because the appellant had previously been convicted of an offence which attracted a sentence of over four years' imprisonment, he qualified as a foreign criminal. Accordingly, paragraph 399 of the Rules did not assist him, because he would have to establish very compelling circumstances over and above that paragraph.
9. As regards ground 2, and the Devaseelan point, at [30]-[34] the FtJ had set out the findings made at the earlier hearing in significant detail. At [34] she referred to the significant changes that there had been since then, with the appellant having subsequently been convicted of an offence of assault occasioning actual bodily harm for which he received a sentence of nine months' imprisonment, as well as the offence of possession with intent to supply. At [35] she said that the evidence before her was "in similar vein" to that before the previous Tribunal.
10. At [40] she had dealt with the question of very significant obstacles to integration, referring to the appellant understanding Lingala, his dyslexia, and the courses he had undertaken to improve his literacy and reading skills. She also referred to his having been in employment.
11. She referred to the misplaced confidence put in the appellant by the previous Tribunal. Although it had been found at that time that the appellant had family life, there were reasons to depart from those findings, the FtJ having concluded that his family had no influence or control over him. He had continued offending. It was open to the FtJ to find that he had no family life in the UK. The FtJ had also referred to the OASys assessment, the fact that the appellant still had debt issues, his recent conviction for a drugs offence, the fact that his brother also had criminal convictions, and that the appellant had made no attempt to move from the area he lived in and from his former associates. She was therefore entitled to conclude that there was a strong likelihood of further offending.
12. In relation to ground 3, although the FtJ had referred to 'exceptional circumstances', her reasoning was such as to mean that she was not satisfied that there were very compelling circumstances.
13. So far as the risk of re-offending is concerned, the OASys Report to which the FtJ referred contained significant details not in the NOMS Report, which contains no reasoning as to how the assessment was made. Furthermore, the NOMS Report referred to a risk of serious harm. The offender manager's letter dated 12 August 2015 is not well-reasoned and does not draw upon independent or objective sources, and could not therefore take the issue of the risk of re-offending any further. Furthermore, the risk of re-offending was only one factor to be considered.
Conclusions
14. At the conclusion of the hearing I announced to the parties that I was satisfied that the FtJ had erred in law such as to require the decision to be set aside. I now give my reasons. Although Mr Clarke inferred, although did not expressly state, that the appeal could have been decided with reference to the appellant's sentence on 30 April 2007 for robbery, of five years' imprisonment, I proceed on the basis that the deportation appeal before the FtJ, and before me, relates to the sentence of three years and four months' imprisonment imposed on 1 March 2013 for possession with intent to supply class A drugs. It was the appeal in 2008 that dealt with the deportation decision in relation to the robbery offence.
15. Accordingly, one of the matters the FtJ had to consider was paragraph 399A of the Rules. This provides as follows:
"399A. This paragraph applies where paragraph 398(b) or (c) applies if -
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported."
16. Accordingly, there are three elements that need to be considered, namely lawful residence for most of the person's life, social and cultural integration in the UK, and the question of whether there would be very significant obstacles to the person's integration into the country of return.
17. It is correct that the respondent in the decision letter accepts that the appellant had been lawfully resident in the UK since his arrival in 1994 at the age of 10, and bearing in mind his having been granted exceptional leave to remain in 2000. Although it is possible to pick out aspects of the evidence referred to by the FtJ and findings on other factual matters which could coalesce into an assessment of whether the appellant could be said to be socially and culturally integrated in the UK, it is not possible to detect in the FtJ's reasons any conclusion on that issue. Likewise, in relation to the question of whether there would be very significant obstacles to the appellant's integration into the DRC. One sees at [40] certain findings which could be used to support a conclusion that the appellant had not established that there would be very significant obstacles to his integration in the DRC, but again, there is no expressed conclusion by the FtJ on that issue. Those in my judgement are reasons enough to find an error of law in the FtJ's decision requiring it to be set aside. I am satisfied therefore, that that aspect of ground 1 is made out.
18. Similarly, I am not satisfied that the FtJ has adequately addressed the question of the extent to which the previous findings made by the FtT in 2008 are, or are not, to stand. The findings relied on on behalf of the appellant are set out at [14] of the grounds. These are, to summarise, that he has family life in the UK, that he has an IQ of 66 and significant learning difficulties, and in consequence of those learning difficulties he is heavily dependent on family and friends. It was found that he would have no support in the DRC not having lived there since he was 9 or 10 years of age. It was also concluded that he can understand Lingala but he would find it difficult to learn or to function in a community where it was the only language spoken. He could not read or write Lingala and would probably find it impossible to learn without significant support. It was further concluded that the support from the appellant's family in the UK would not be sufficient to offset those difficulties.
19. It is true that at [34] some of the findings made in the previous appeal were referred to. It is also true that at [35] the FtJ referred to some of the circumstances which were now different. However, it is not evident from the FtJ's decision that it was recognised that the starting point should have been the findings made by the earlier Tribunal. Indeed, the decision in Devaseelan v SSHD [2002] UKIAT 00282 is not even referred to, still less are the principles of that decision set out.
20. Again, I do not conclude that it would not have been open to the FtJ to have come to different conclusions from those of the earlier Tribunal on material issues but a simple narration of the facts and findings are not a substitute for analysis and reasons. That analysis and reasoning is, in my judgement, absent with reference to the earlier appeal findings. Again, this amounts to an error of law requiring the decision to be set aside.
21. I am similarly satisfied that the FtJ's apparent failure to have regard to the NOMS Report dated July 2014 in the respondent's bundle and the letter from the offender manager dated 12 August 2015 is an error of law, the FtJ having only referred to and apparently only having taken into account the earlier OASys Report dated 13 December 2013. It is true that the risk of re-offending is not the only, or even the main, public interest question when considering deportation of a foreign criminal. However, if the matter is to be addressed, it needs to be assessed with reference to all relevant evidence. That is an issue that would need to be addressed in circumstances where Article 8 was more at large, that is to say where the appellant was not able to meet the requirements of the deportation Rules.
22. I have not dealt with the argument in ground 3 in terms of the FtJ's reference to "exceptional circumstances" as opposed to "very compelling circumstances" over and above those described in the Rules because, as I indicated at the hearing, I do not regard that as being a particularly potent argument on behalf of the appellant. In the light of my other conclusions however, it is in any event not a matter that requires further consideration.
23. As an overall observation, as I indicated at the hearing, the matters advanced by Mr Clarke which he suggested justified the FtJ's conclusions, revealed reasoning which should have featured in the FtJ's decision but which was lacking.
24. I canvassed with the parties the question of whether the re-making of the decision should take place in the Upper Tribunal or whether the matter should be remitted to the First-tier Tribunal. Mr Clarke's initial view was that the matter should be retained in the Upper Tribunal although latterly his position was that it depended on what errors were found. Ms Easty suggested that the appeal should be remitted to the FtT.
25. I have decided that the appropriate course is for the appeal to be remitted to the FtT. Although the FtJ made certain findings of fact, I do not consider that those findings of fact are such as to mean that there is only a limited fact-finding exercise to be undertaken, which can properly be dealt with by the Upper Tribunal. The limited findings of fact that were made by the FtJ and which are not infected by the error of law, are not sufficient for the matter to be retained in the Upper Tribunal. For example, I note that the FtJ concluded at [40] that the appellant has "held down a job" which required him to carry out filing and sorting documents working with a trading company. However, at [35] she concluded that the appellant is not genuinely in employment. I consider it necessary for there to be a hearing de novo.
26. However, I did indicate to the parties that if I concluded that the matter should be remitted to the First-tier Tribunal, in principle there was no reason as to why the FtJ's record of the evidence given at that hearing should not stand as evidence in the appeal. I gave Ms Easty seven days within which to make any submission on that issue, if she had reason to conclude that the record of the evidence was not accurate. No such submissions have been received. Accordingly, the record of the oral evidence given at that hearing as set out in the FtJ's decision, is to stand as evidence in the appeal.
Decision
27. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision is set aside and the appeal is remitted to the First-tier Tribunal for a hearing de novo with no findings of fact preserved, before a judge other than First-tier Tribunal Judge Bart-Stewart.

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 his 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.

Upper Tribunal Judge Kopieczek 16/02/16