Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/11632/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th May 2016 & 4th July 2016
On 2nd August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

mr Nicholas Roger Josephs
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr S Walker
For the Respondent: Miss C H Bexson

DECISION AND REASONS

1. For ease of comprehension the parties are referred to by their status before the First-tier Tribunal.
2. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Coaster allowing the Appellant's appeal against the Entry Clearance Officer's decision dated 27th August 2014 notifying the Appellant of the refusal of his application for leave to enter as the spouse of a settled partner under Appendix FM.
3. The First-tier Tribunal promulgated its decision allowing the Appellant's appeal against the Respondent's decision on 8th October 2015.
4. The Respondent appealed against that decision and was granted permission to appeal by First-tier Tribunal Judge Colyer. The grounds upon which permission to appeal was granted may be summarised as follows:
(i) The judge has arguably materially erred in his consideration of Article 8.
(ii) The judge has arguably erred in finding that the Appellant and his spouse could not enjoy family life in Jamaica.
(iii) The judge failed to apply Section 117 of the 2002 Act in reaching his conclusions.
(iv) The judge's assessment of his exceptional circumstances was flawed.
(v) The judge makes his own assessment of the Appellant's criminality and has failed to give appropriate consideration to the public interest views of the Secretary of State.
Error of Law
5. At the hearing on 11th May 2016 I canvassed with the representatives the difficulty that I envisaged in dealing with the application for permission, namely that there was a lack of evidence as to whether the sentence imposed by the Magistrates' Court in Jamaica accurately reflected what precise sentence was imposed by Her Honour Mrs G. Henry McKenzie, Resident Magistrate, on 19th February 2014 in the matter of R v Nicholas Josephs. Consequently with the parties' agreement a direction was made by me on the same date that the Appellant's representatives use their best endeavours to obtain further information confirming the sentence passed or imposed by the court in Jamaica so that the error of law at the forefront of the Secretary of State's complaint, namely whether the Appellant truly fell foul of Immigration Rule S-EC.1.4.(c) or not.
6. The Appellant's representatives submitted a fax to the Upper Tribunal on 27th June enclosing a letter from the Parish Court in Kingston & St Andrew Criminal Division in Jamaica dated 21st June 2016 from the court clerk which stated as follows in relation to the same matter of R v Nicholas Josephs, reference 3600/14 Assault O.B. Harm. The letter stated as follows:
"I refer to the matter at caption and my letter dated September 23, 2015.
Please be advised that the above mentioned accused was sentenced to pay a fine of $15,000.00 or thirty (30) days imprisonment in the alternative.
The accused paid the fine of $15,000.00 and was, therefore not required to serve the alternative thirty (30) days prison term.
Please see attached copy of letter for ease of reference."
7. On the 11th May hearing before me Mr Walker for the Respondent stated that in light of that letter and its contents he accepted on behalf of the Secretary of State that the Appellant was not sentenced to any imprisonment and was sentenced to paying a fine. Consequently the complaint that the judge had wrongly assessed S-EC.1.4.(c) was no longer pursued. In response to my query regarding the remaining grounds of complaint, Mr Walker made clear that he did not wish to pursue any of the remaining grounds either given that the complaint at the forefront of the Secretary of State's mind when drafting those grounds was that the criminality of the Appellant had been wrongly assessed.
8. At the end of the hearing, I indicated my decision that there was no error of law in the First-tier Judge's determination. My reasons for so finding are as follows. Immigration Rule S-EC.1.4.(c) makes clear that it penalises applicants who seek to enter the United Kingdom who have served custodial sentences of less than twelve months however the rule does not penalise applicants who have had other sentences imposed, such as a fine. In light of the clarification within the letters from the same court clerk whom wrote the recent letter of 21 June 2016 and the previous letter dated 23 September 2015 from the Magistrates' Court in Jamaica, and in light of Mr Walker's acceptance that the letter settles the dispute in question, the matter may be beyond question; however I also add my own view which is that the letter disposes of the issue which was raised before me which was whether the sentence imposed by the Magistrates' Court in Jamaica was one of a custodial nature or of a financial sanction. I do find that the Appellant had paid a fine of $15,000.00 and therefore there was no custodial sentence imposed or passed upon him. Had the Appellant not paid the fine, it would only be in that situation that the Court would have imposed a custodial sentence, however it is clear that that did not come to pass. Consequently Immigration Rule S-EC.1.4.(c) does not apply.
9. In light of Mr Walker's stance on behalf of the Respondent that the other grounds of complaint are no longer pursued, there is nothing further for me to determine upon the Respondent's appeal. Consequently the decision of the First-tier Tribunal is free from material error.
Notice of Decision

The decision of the First-tier shall stand and is hereby affirmed.

Signed Date

Deputy Upper Tribunal Judge Saini