Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00021/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 19 October 2016
On 13 December 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

RESGAR IBRAHIM NARIMAN
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr Diwnycz, a Senior Home Office Presenting Officer
For the Respondent: Mr Hussain, instructed by Parker Rhodes Hickmotts, Solicitors

DECISION AND REASONS
1. I shall refer to the appellant as the respondent, and to the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, Resgar Ibrahim Nariman, was born on 29 May 1983 and is a male citizen of Iraq. His application for asylum was refused on 13 November 2002 but that decision was withdrawn. The appellant was subsequently interviewed in relation to his asylum claim in September 2005 and his claim refused by a decision dated 12 September 2005. His child (C) was born in January 2007. In June 2007, the appellant applied for indefinite leave to remain. However, on 10 September 2007, at Grimsby Crown Court the appellant was convicted of assisting an offender who had committed murder. He was sentenced to eighteen months' imprisonment. On 16 May 2008, he was served with notice of liability to deportation and then raised asylum issues in his response in May 2008. His appeal against the deportation decision was dismissed by the First-tier Tribunal on 5 September 2008. In 2009, the appellant entered an Islamic marriage with Rebecca Leggott, a British citizen and the mother of C. The couple were married legally on 17 February 2010 and their second son (L) was born in October 2010. Further submissions were submitted to the respondent in 2011 but by decision dated 3 March 2015 the respondent refused the appellant's claim and refused to revoke the deportation order. The appellant appealed to the First-tier Tribunal (Judge Caswell) which, in a decision promulgated on 5 September 2016, allowed the appeal. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. There are two grounds of appeal. First, the decision of Judge Caswell is challenged on the basis that she has failed to provide adequate reasons for her findings on material matters. At [20], Judge Caswell wrote:
20. Mr Mullarkey, in departure from any previous attitude of the Respondent, submits that the Appellant is from the KRI, not the Kirkuk governorate. He relies on various matters, including an odd ID card, apparently obtained by a friend in Iraq, which gives a different name for the place of birth, and apparently has been issued in Suleimanya. The Appellant's explanation is that he asked his friend to try to get his ID card, he did not know what this card said because he is illiterate, and that his friend may have bought the document thinking that it would help the Appellant. I find this explanation to be credible, and do not hold it against the Appellant that he put forward the ID card for the appeal, given the Appellant's own illiteracy. However, he states the details are correct. The reason another name is given for the birthplace is that this is a town near his very small village. Again, I accept this as credible. Mr Mullarkey also asks me to find the Appellant and his wife lied when they gave his occupation on the birth certificate of their son as a van driver. However, they both explained that they did this as the Appellant did not want his son to grow up thinking his father was a "good for nothing" who did not work. In the circumstances, and having formed a view of the Appellant and his wife over lengthy cross-examination, I accept this explanation, and in any event do not find this small matter impacts significantly on the Appellant's overall credibility. Mr Mullarkey relies on a part of the social worker report which states at paragraph 10 that the Appellant "was sad talking about his parents, who are still alive." The Appellant's explanation for this was that she may have thought they were still alive because he hoped they were. He does not know they are dead. He simply has no news of them. He has had no contact with them for many years and so does not know what has happened to them. Again, given this is a minor detail without amplification, in a very substantial report, I do not find the discrepancy significant in terms of credibility. I also accept that the Appellant, when the report was read to him, may have missed this small detail or have thought it unnecessary to correct it. I note from the original screening interview in 2002 and the original asylum interview in September 2005 that the Appellant was saying he was from Dureda(n), was born in Diyala in the Kirkuk region, and was not from the Kurdish area to the north.
3. The respondent asserts that no adequate reasoning has been provided to explain why the judge accepted the appellant's evidence concerning his ID card given that he had left from a different area of Iraq. The grounds record that "the appellant's explanation for the differing birth place on the ID card is accepted as credible without any reference to verifiable objective evidence as to the existence of the town he claims to have been born in".
4. The Upper Tribunal should hesitate before interfering with findings of fact reached by the First-tier Tribunal. Judge Caswell has provided a detailed and thorough analysis of the facts of this appeal. In circumstances where there was no other evidence from either side (as in the details appearing on the appellant's ID card), the judge has had no alternative but to make an assessment of the credibility of the appellant's own account. I have no doubt that she has done that by adopting a holistic approach to an analysis of the evidence; indeed, it is clear from any reading of the decision that she has adopted that approach. Therefore, having found the appellant a credible witness in respect of other aspects of his account, it was open to the judge to accept the appellant's account concerning his ID card. The fact that the appellant had not produced additional evidence or, indeed, "verifiable objective evidence" as to the existence of the town of his birth is not a reason in itself for challenging the outcome of the judge's analysis. The judge has identified the apparent anomaly concerned with the fact that the appellant's ID card was issued in Suleimanya (a city located within the IKR) and the grounds are wrong to suggest that the judge has overlooked that apparent anomaly. However, there was nothing perverse or irrational in the judge accepting the explanation given by the appellant which resolved the seeming anomaly. It was for the judge to consider the evidence that was before her; she was not required to compel the appellant to produce additional evidence regarding his birth place or (and there appear to have been no submissions on the matter) to find the appellant's evidence incredible because he had not produced additional material.
5. The other ground of appeal concerns the judge's findings in relation to Article 8 ECHR. These are set out at [28] - [29]:
28. Alternatively, and in addition, in relation to the human rights appeal, I find that this is a very close and loving family, that the Appellant's wife, who has been relying on him as her partner for the last 11 years since she was 15, and his four children, with whom he has a close and loving relationship, would all suffer undue hardship if he were removed from their family unit, and it would certainly not be in the best interests of the children. I also find that it would not be reasonable to expect the Appellant's wife and children, all British Citizens, to relocate to Iraq, leaving behind the benefits of their British Citizenship, including the health service which she and the children are already using, and the benefits of a British education, which the eldest children are also gaining a great deal from, according to the school reports.
29. The evidence before me is overwhelming that the Appellant has a genuine as subsisting relationship with his wife, and a genuine and subsisting parental relationship with his four sons, and I have no hesitation in finding that the effect of his removal on all of them, and also the effects on all of them of returning to Iraq as a family, would be unduly harsh, or "excessively cruel", in the terms used in MM (Uganda) above. In coming to this conclusion, I have regard to the guidance given in that case that all the circumstances, including the Appellant's criminal history, must be taken into account. Bearing in mind the offence, although serious, at bottom involved the Appellant in helping a friend rather than committing any acts of violence or initiating any crimes himself, and bearing in mind the very long period of time which has elapsed since he committed it, and the relatively limited course of previous offending, namely one conviction some years earlier for driving offences for which he received a six month prison sentence, I find that the Appellant has effectively fully rehabilitated himself. I accept that he has shown remorse for his previous actions, and has become fully involved in his family as it has developed since then, so that he is very unlikely to re-offend. I find the Appellant's presence is now integral to the well being and development of his four sons, as the independent social worker has concluded, and that the Article 8 rights of him and all the family members would be breached if he were not allowed to remain with them in the UK.
6. The Secretary of State asserts that the judge has played down the seriousness of the appellant's offending. However, the judge accurately describes the offending as "serious" but noted that the appellant had "fully rehabilitated himself" and had "shown remorse for his previous actions". The Secretary of State may not agree with those findings, that does not mean that they are irrational. The findings were available to the judge on the face of the evidence. She has supported her conclusions with clear and cogent reasons.
7. Further, the Secretary of State challenges the judge's decision on the grounds that she has failed properly to apply the "unduly harsh" test set out in paragraphs 399(a) and 399(b) of HC 395 (as amended) and also Section 117C of the Nationality, Immigration and Asylum Act 2002 (as amended). The grounds cite MM (Uganda) [2016] EWCA Civ 450 as authority to support her challenge to the judge's decision on the basis that she has failed properly to take into account the appellant's serious criminality and immigration history in deciding whether deportation would have an "unduly harsh outcome" on the appellant's children and partner. I disagree. The judge refers to MM (Uganda) more than once in the decision and does so at [29] when considering the question of the harshness of the effect of the appellant's deportation on his family. Quite properly, the judge has taken into account the very particular circumstances of this family. The children suffer from Duchenne muscular dystrophy, a devastating and aggressive illness. The judge was very clear in her finding that the appellant's presence was "now integral to the wellbeing and development of his four sons" as the expert evidence from a social worker also corroborated. Given the seriousness of the medical condition of the children, it is not arguable that the judge's decision may properly be described as irrational or perverse. Since I find that to be the case, the question remains whether the judge has failed to give proper reasons for her decision or has failed to apply the law correctly. In my opinion, she has fallen into neither of those traps. Her analysis of the evidence is even-handed and objective, whilst her determination of a possibility of separation having an unduly harsh effect upon the family does not, as the grounds suggest, play down the public interest concerned with the appellant's removal. Another judge faced with the same facts may have come to a different conclusion; however, that is not the point. I do not find that Judge Caswell has erred in law either for the reasons stated in the grounds of appeal or at all.

Notice of Decision
8. This appeal is dismissed.
9. No anonymity direction is made.

Signed Date 9 December 2016

Upper Tribunal Judge Clive Lane