Tribunal decisions

The decision

IAC-fH-WYL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01641/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 November 2016
On 22 November 2016

Before

LORD BANNATYNE
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
UPPER TRIBUNAL JUDGE FREEMAN

Between

Secretary of State for the Home Department
Appellant
and

zbb
(anonymity direction made)
Respondent

Representation:
For the Appellant: Mr Jarvis, Home Office Presenting Officer
For the Respondent: Mr Paraskos, Counsel

Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings. We find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the respondent is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies to both the appellant and the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS
1. For the sake of continuity we will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal to the Upper Tribunal.
Background
2. The appellant is a citizen of Nigeria who was born on 24 September 1979.
3. The appellant was convicted at South Norfolk Magistrates' Court on 4 May 2006 of obtaining pecuniary advantage by deception, having a false instrument with intent and remaining in the UK beyond a time limit. She was sentenced to twelve months' imprisonment and recommended for deportation.
4. In light of the above conviction she was notified on 1 November 2006 of a decision to make a deportation order against her. She lodged an appeal against this decision on 7 November 2006. Her appeal was dismissed on 30 August 2007. A deportation order was signed on 11 March 2008.
5. In a letter dated 22 September 2015 a decision was made by the Secretary of State to refuse to revoke a deportation order made on 1 November 2006 and maintained the deportation order signed on 11 March 2008 by virtue of Section 5(2) of the Immigration Act 1971. In addition to this a decision was made to refuse both the appellant's protection and human rights claims.
6. The decision of 22 September 2015 was appealed to the First-tier Tribunal and in a decision promulgated on 27 June 2016 the appeal was allowed.
7. The respondent sought permission to appeal against that decision and this was granted by the First-tier Tribunal on 1 September 2016.
Submissions on Behalf of the Secretary of State
8. Mr Jarvis advised at the outset that he only intended to argue one of the grounds of appeal which was in the following terms:
"There is a further error in the FTTJ's assessment of whether it would be unduly harsh for the appellant's children to remain in the UK without her. He has identified nothing compelling other than the normal expected result of deportation and in doing so, has failed to apply the principles recognised in current jurisprudence that separation either between an appellant and his partner or children is an inevitable consequence of deportation resulting from their criminal behaviour and as such is lawful."
9. Mr Jarvis's submission was not that the First-tier Tribunal had applied the wrong test in considering this issue, it was, however, his position that having regard to the whole circumstances that no reasonable decision-maker would have reached the decision that it was unduly harsh for the children to leave the United Kingdom or remain here without the appellant.
10. In support of his submission he reminded us that the unduly harsh test set a particularly high threshold. No reasonable decision-maker could have reached the view that that high threshold was met in the circumstances of this case.
Reply for the Appellant
11. Counsel's submission can be summarised as this: the ground of appeal advanced on behalf of the respondent amounted to no more than a disagreement with the finding of the First-tier Tribunal and the desire to have this Tribunal re-assess the facts by the back door.
Discussion
12. The First-tier Tribunal's decision overall is a carefully and fully considered one. In particular, we are persuaded that the consideration of the unduly harsh test is a careful and full one. The question is considered over some five lengthy and detailed paragraphs (48 to 52). A large number of factors are considered by the First-tier Tribunal all of which are relevant considerations. We were not referred to and cannot identify any relevant and material factor which was not considered. Detailed consideration is given to both the children remaining in the United Kingdom without the appellant and leaving the United Kingdom with her. The First-tier Tribunal is careful to articulate the factors which it considers are beyond the inevitable consequences of deportation and these are contained in paragraphs 50 - 52. Thereafter a careful proportionality assessment is carried out, which as recognised by Mr Jarvis, had proper regard to the public interest. We are satisfied that there was sufficient material before the First-tier Tribunal to entitle it to conclude that the unduly harsh threshold was met. We are unable to identify any material error of law.
Decision
13. For the above reasons we refuse the appeal.

Signed Date

Lord Bannatyne
Sitting as a Judge of the Upper Tribunal