Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/51159/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 17 August 2016
On 31 August 2016

Before

UPPER TRIBUNAL JUDGE PITT

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MATOTA MACHESE TUZIZILA
Respondents

Representation:
For the Appellant: Ms Isherwood, Senior Home Office Presenting Officer
For the Respondents: Not represented

DETERMINATION AND REASONS
The Appeal
1. This is an appeal by the Secretary of State against a determination dated 3 February 2016 of First-tier Tribunal Judge Traynor which allowed the respondent's appeal against deportation under the Immigration Rules.
2. For the purposes of this determination, I refer to Mr Tuzizila as the appellant and to the Secretary of State as the respondent, reflecting their positions before the First-tier Tribunal.
3. The appeal comes before me on a very limited basis as although the respondent sought to challenge Judge Traynor's decision on three grounds, she was granted permission on only one of them in by First-tier Tribunal Judge Kelly in his decision dated 12 July 2016. The respondent did not seek to renew the grounds found to be without merit by Judge Kelly and Ms Isherwood made submissions only in relation to the single ground on which permission had been granted. The respondent's concern is that Judge Traynor wrongly concluded that the appellant was not a "foreign criminal" as defined in legislation and that he therefore erred in stating that paragraphs 398-399A of the Immigration Rules should be applied here.
4. The background to this matter is that the appellant came to the UK from the Democratic Republic of Congo at the age of 5 weeks in 1996. He was granted indefinite leave in 2005. On 16 December 2016 the respondent made a decision to deport him and revoke his indefinite leave to remain. The respondent maintained that he was a foreign criminal liable to automatic deportation as he had caused serious harm and was a persistent offender, bringing him within the provisions of paragraph 398 (c) of the Immigration Rules. The decision was made on the basis that the appellant had committed five offences between 2011 and 2015 (none of which attracted a custodial sentence), he had been involved with the criminal authorities on at least 20 occasions and the respondent considered that he was a member of a criminal gang.
5. Judge Traynor records at [19] that the appellant did not dispute the respondent's case as to his involvement with the police on many occasions. The judge was also clearly aware of the appellant's offences, setting them out at [20]. Judge Traynor heard evidence from the police as to the appellant's involvement in a criminal gang but at [142] did not find that part of the respondent's case to be made out. The respondent has not sought at any point to challenge that finding.
6. At [131] to [138] Judge Traynor considered the provisions of paragraphs 398-399A of the Immigration Rules which apply to a "foreign criminal" subject to deportation. He states at [131] that the appellant "is a persistent offender who shows a particular disregard for the law", the requirement in paragraph 398 which leads to the application of paragraphs 399 and 399A. Judge Traynor went on to conduct that assessment in [132]-[138]. He concluded at [138] that the appellant met the requirements of paragraph 399A(c) as there were "very significant obstacles" to his reintegration in the DRC. Judge Traynor repeated this finding at [151]:
"? I find that his appeal should succeed under paragraph 276ADE as well as paragraph 399A."
7. The reference to both paragraph 276ADE and paragraph 399A arose because at [139]-[153], Judge Traynor conducted an alternative assessment on the basis that the appellant was not a "foreign criminal" as defined in section 32 of the UK Borders Act. That part of his decision considered the appellant's claim without reference to the deportation provisions in the Immigration Rules but considered Appendix FM and paragraph 276ADE. Having already found paragraph 399A(c) met, he also found that the "very significant obstacles" test under paragraph 276D (vi) was met and allowed the appeal on that alternative basis under the Immigration Rules also.
8. The only ground of appeal before me, as above, limited by the permission decision, was referred to as "Ground one - Making a material misdirection of law" and is set out in paragraphs 1 - 4 of the grounds. Paragraph 1 states:
"It is respectfully submitted that the Tribunal have (sic) materially erred in their assessment at paragraph 127-130 that the appellant cannot be considered to be a "foreign criminal" because the provisions of Section 32 of the 2007 Act are not met and that his case should have been considered in accordance with the provisions of Appendix FM and paragraph 276ADE of the Immigration Rules."
9. Paragraph 2 goes on to state:
"It is submitted that the Tribunal has had no consideration to Section 117D (2) (iii) or 398(c) and whether the appellant's offending has caused serious harm or that they are (sic) a persistent offender wo shows a particular disregard for the law."
10. It should be clear from [5] and [6] above that Judge Traynor did conduct an assessment as if the appellant was a "foreign criminal" finding paragraph 399A(c) met and that the appeal therefore succeeded under the Immigration Rules. His consideration addressed the material evidence and applied the correct legal matrix and found that the appellant would face very significant obstacles to reintegration. There is no perversity or adequacy of reasons challenge to that assessment before me.
11. Even if the respondent is right as Judge Traynor's legal analysis at [130] that the appellant was not a "foreign criminal" being incorrect, no materiality arises where he conducted the correct assessment in any event as an alternative at [131]-[138]. For these reasons, I do not find that the respondent's ground has merit and her appeal is refused.
12. At the hearing Ms Isherwood informed me that further criminal charges have been laid against the appellant since the decision of Judge Traynor. The appellant must therefore not be surprised if the respondent reviews his case and, if she deems it appropriate, makes a further deportation decision against him relying on those additional new matters. He should be aware that where the facts are different, he cannot expect to rely on the outcome of this appeal to defeat that new decision.
Decision
17. The decision of the First-tier Tribunal does not disclose an error on a point of law and shall stand.

Signed: Date: 26 August 2016
Upper Tribunal Judge Pitt