Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02158/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 September 2016
On 28 September 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

as
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Sharma, counsel instructed by DJ Webb & Co
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. Both the appellant and the respondent appeal against the decision of First-tier Tribunal Judge M B Hussain who, in a decision promulgated on 25 July 2016 dismissed the appellant's appeal on asylum and humanitarian protection grounds and allowed it on Article 8 human rights grounds, under the Immigration Rules.

Background
2. The appellant entered the United Kingdom clandestinely during 1997 and applied for asylum. That claim was refused and his appeal against that decision dismissed on 25 January 1999. Following further representations and an application for leave outside the Rules, the appellant was granted indefinite leave to remain outside the Rules on 28 June 2010.
3. On 19 March 2013, the appellant was convicted of causing death by dangerous driving and driving a motor vehicle with excess alcohol. He was sentenced to 45 months' imprisonment for the first offence and no separate penalty for the second offence. He was subsequently served with notice of liability to deportation and responded by raising a fear of persecution in Sri Lanka and his family life in the United Kingdom. In brief, the substance of the asylum claim was that the appellant's younger sister was a member of the LTTE; the appellant assisted the LTTE; his elder sister was tortured by the Sri Lankan army and subsequently took her own life; the appellant has protested against the Sri Lankan government since 2007; he is related to well-known LTTE personnel; would be at risk from the Sri Lankan authorities as well as paramilitary Tamil groups and also experienced mental health issues. With regard to family life, the appellant relied on his relationships with his partner and minor British citizen child.
4. The deportation order was signed on 19 October 2015. An accompanying notice of decision dated 20 October 2015 made reference to the 1999 determination of the appellant's asylum appeal and the finding that his claim lacked credibility. No weight was given to a medical report obtained in 2002 which referred to scarring on the appellant's person. The respondent did not accept that the events concerning his relatives enhanced the appellant's claim to be at risk of harm on return to Sri Lanka. It was said that no evidence of the appellant's involvement in protest marches had been submitted and that the panel in GJ (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) did not accept that low level membership or participation at demonstrations was sufficient to create a real risk on return. The appellant was said not to be on a stop list. The respondent decided that the appellant was excluded from Humanitarian Protection on account of his criminal conviction. In relation to Article 8, the respondent accepted that the appellant had genuine and subsisting relationships with his wife and child but concluded that it was not unduly harsh for them to live in Sri Lanka with the appellant or remain in the United Kingdom without the appellant and with regard to the child, establish a relationship with the appellant by way of modern means of communication and visits.
The First-tier Tribunal hearing
5. The appellant's appeal came before Judge Hussain on 9 May 2016. The appellant and five other witness gave evidence. The judge notes that there was no challenge by the respondent to the credibility of any of the witnesses, that the respondent was not applying section 72 of the Nationality, Immigration and Asylum Act 2002 and that the respondent accepted that the risk of the appellant reoffending was low.
6. The judge rejected the asylum claim with reference to the previous determination and GJ and Others, finding that there was no adverse interest in those whose political activities amounted to no more than simple participation in demonstrations.
7. The appellant was found by the judge to meet the requirements of paragraph 399(a) of the Rules, in that the judge concluded that the impact on the appellant's child, whether or not she accompanied him to Sri Lanka or remained in the United Kingdom without him, would be unduly harsh.
Error of Law
8. The respondent's grounds of appeal implied that the judge made a material error of law in his interpretation of the phrase "unduly harsh."
9. In the appellant's grounds of appeal, it was argued that he should have succeeded on asylum grounds in view of his actual political opinions and attendance at demonstrations. There was said to be no reference in the decision to the skeleton argument, which submitted that the appellant would be at risk of persecution were he to openly profess separatist views; those genuinely held views were corroborated by his witnesses and the judge had accepted that the appellant had attended demonstrations. Nor was there said to be any anxious scrutiny in relation the medical report produced after the 1999 determination. Reference was made to an annexed counsel's statement of truth and an application for Judge Hussain's record of proceedings to be served on all parties.
10. Permission to appeal was granted to both parties by First-tier Tribunal Judge Chambers. Permission was granted to the respondent on account of the interpretation of unduly harsh by the Court of Appeal in MM (Uganda) & Anor [2016] EWCA Civ 450. With regard to the appellant's application, Judge Chambers remarked as follows; "Having considered the cross appeal grounds and the signed statement of truth by counsel exhibiting pages of evidence from a notebook; permission to cross-appeal is granted to the Appellant on the basis of the judge's failure to engage with the evidence and make findings on the sur place point."
11. The Secretary of State's Rule 24 response was received on 7 September 2016 and indicated that the appellant's appeal was opposed. It was argued that the appellant did not fall within the risk categories established in GJ and thus he would not be at risk on return. It was further argued that the appellant had not demonstrated that the sophisticated intelligence-led operations of the Sri Lankan government would consider him to be a person with a significant role in relation to Tamil separatism. The mere holding of pro-Tamil views was said not of itself to bring an appellant with a risk category delineated in GJ. Nor was there said to be adequate evidence suggesting that the appellant would face a real risk of persecution resulting from his views or that he would be obliged to conceal them to such a degree that would amount to persecution.
12. The appellant's Rule 24 response argued that the judge made no material error of law, in that he took account of the very high public interest in deportation and the seriousness of the appellant's offence. It was said that the judge properly applied MM(Uganda) and in addition went on to identify exceptional circumstances which outweighed the public interest in deportation.
Error of law hearing
13. When this matter came before me, I initially heard the respondent's appeal relating to the judge's findings in relation to paragraph 399(a) of the Rules. Ms Ahmad submitted that the judge's assessment was inadequate. She made three main points.
14. Firstly, she argued that the judge had shown no appreciation that the more serious an offence, the higher the public interest. There had been only a brief reference to the offence in question which was flawed by the absence of mention that it was a very serious offence.
15. Secondly, with reference to [24] of MM (Uganda), there needed to be a consideration of the appellant's immigration and criminal history and this consideration, which focused only on the impact on the appellant's partner and child, was absent. Thirdly, the judge made no reference to section 117C of the 2002 Act in relation to the seriousness of the offence, as endorsed in MM (Uganda) at [23] and [26].
16. In reply, Mr Sharma berated the respondent for the poorly drafted grounds. He referred me to various passages of the judge's decision and reasons, arguing that it was not the case that the judge showed no appreciation of the offence and its seriousness. He emphasised what the judge said at [61] about the appellant's case being unusual, in that a close relative of the deceased victim and another passenger in the vehicle had given evidence in support of the appellant, with particular reference to his genuine remorse. There had been no challenge to the credibility of any of the witnesses. Mr Sharma argued that the judge had set out the appellant's immigration and criminal history in the decision. The judge correctly noted that the appellant was of good character prior to this offence. With regard to the immigration history, the judge recorded that the appellant applied for asylum soon after arriving in the United Kingdom in 1997, that his appeal had failed and that he had eventually been granted settlement. There had been no failure to consider section 117C, which was set out identical terms in paragraph 399a of the Rules and replicated by the judge in his decision. Mr Sharma also drew my attention to the judge's findings as to why it would be unduly harsh for the appellant's child to accompany him to Sri Lanka or remain in the United Kingdom without him. Of particular note was the fact that the grant of leave to remain to the appellant's partner was based on the appellant being present and settled in the United Kingdom and were he to be removed, his partner's status would become uncertain and by extension, that would adversely affect the ability of the appellant's British child to live in the United Kingdom.
17. Ms Ahmad replied, reiterating that the judge did not appreciate, in making the assessment, that he had to consider the appellant's immigration and criminal history and if he had he could have come to a different conclusion.
18. I set out the most relevant passages, for these purposes, from MM (Uganda) below.
"23. The context in these cases invites emphasis on two factors, (1) the public interest in the removal of foreign criminals and (2) the need for a proportionate assessment of any interference with Article 8 rights. In my judgment, with respect, the approach of the Upper Tribunal in MAB ignores this combination of factors. The first of them, the public interest in the removal of foreign criminals, is expressly vouched by Parliament in section 117C(1). Section 117C(2) then provides (I repeat the provision for convenience):
"The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal."
24. This steers the tribunals and the court towards a proportionate assessment of the criminal's deportation in any given case. Accordingly the more pressing the public interest in his removal, the harder it will be to show that the effect on his child or partner will be unduly harsh. Any other approach in my judgment dislocates the "unduly harsh" provisions from their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case the term "unduly" is mistaken for "excessive" which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case. In the present context relevant circumstances certainly include the criminal's immigration and criminal history."
19. The judge considered all aspects of the appellant's case prior to reaching his findings that the effect of the appellant's removal on his child would be unduly harsh in either of the two scenarios set out in paragraph 399a of the Rules.
20. At [57] of the decision, the judge directed himself appropriately, stating; "It is in the public interest to deport foreign criminals and in any assessment of the deportees family/private life claim has to be a holistic one taking account of all the circumstances."
21. In the following paragraph [58], he acknowledges the severity of the offending, notwithstanding the fact that he has already provided a full description of the offence at [2] of his decision as well as well as the respondent's concerns between [3] and [24]. What the judge said at [58] was as follows, "I begin by reminding myself that the appellant was convicted of a very serious offence which resulted in the death of an individual." While the judge did not refer explicitly to section 117C(2) in his decision, his recognition that the offence was very serious is more than sufficient to show that he applied this section in practice.
22. The submissions on behalf of the respondent concentrated on [67] of the decision and reasons where it was said that the judge had considered only the impact of the appellant's removal on his child and partner. Yet, even in this paragraph; which was immediately preceded by the judge's recognition, as part of his findings, of the public interest concerns and the seriousness of the offence; the judge continued to have regard to those concerns; "I must also bear in mind that whilst the public interest favours the deportation of foreign criminals, in this particular case the appellant has been assessed as posing a low risk of future offending." The judge proceeded to consider the deterrent effect of deportation prior to concluding that in this case, society would be no better off by the appellant's absence, in view of his remorse and low risk of offending. The appellant's immigration history was unremarkable and could not be said to be a factor deserving of weight one way or the other. In any event the judge records at the outset, [1], that the appellant was lawfully settled in the United Kingdom long before the offence in question.
23. The judge made no error of law in his assessment of paragraph 399a of the Rules and his decision is upheld in this respect.
24. I now turn to the appellant's appeal against the judge's findings on the asylum and related Article 3 aspects of his claim.
25. Mr Sharma adopted the grounds of appeal and reminded me that there had been no challenge to the credibility of the witnesses before the First-tier Tribunal. Two of these witnesses had given evidence in relation to the appellant's involvement with sur place activities. While the judge had recited the written evidence of those witnesses at [42] and [43] of the decision, there was no reference to their oral evidence as to the genuine nature of the appellant's attendance at demonstrations and the nature of his support for Tamil separatism. On this point, Mr Sharma referred to the witness statement and handwritten notes of Mr S Chelvan, who represented the appellant before the First-tier Tribunal. He argued that the judge's findings were inadequate, in that at [52] he stately merely that there was nothing to justify departing from previous determination, a claim determined in 1999. Since then the legal position had moved on, with reference to the judgement in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31.
26. Mr Sharma asked me to note that the judge accepted that the appellant sympathised with Tamil separatists took part in demonstrations, however he had not engaged with the argument advanced on the appellant's behalf, that he would have to modify his genuinely held political opinion to avoid persecution if returned to Sri Lanka.
27. For her part, Ms Ahmad, simply referred me the judge's findings at [52] in relation to his unwillingness to depart from the findings of the judge who dismissed the appellant's asylum appeal in 1999.
28. I found there to be a material error of law with regard to the judge's conclusions on the asylum aspect of the appeal. It is apparent from paragraph 29 of Mr Chelvan's skeleton argument dated 8 May 2016, that HJ(Iran) was being relied upon in relation to the appellant's post-flight activities. Furthermore, there are indications in counsel's note that relevant questions were put to two of the appellant's witnesses in this regard and it is the case that their evidence went unchallenged. In these circumstances, there ought to have been a finding in relation to whether the appellant would openly demonstrate his views in Sri Lanka and if he would not, whether this would be owing to a fear of persecution. In finding at [52] that the appellant would not be at risk of persecution for simply participating in demonstrations, the judge's reference to GJ and Others, where HJ (Iran) principles were not considered, was insufficient.
29. I was unable to proceed to remake the decision because Mr Sharma indicated that the appellant wished to give evidence, however no interpreter had been booked. Furthermore, there were question marks as to the precise content of the oral evidence of witnesses five and six before the First-tier Tribunal, in that counsel's note had unintelligible passages and the judge's note was not legible. In these circumstances, evidence might need to be taken from these witnesses again. I therefore decided to remit the asylum aspect alone to the First-tier Tribunal for a de novo hearing.

Decision on error of law
30. The First-tier Tribunal made no material error of law in relation to the findings in respect of Article 8 ECHR and the decision of the judge is upheld. His decision, in relation to the asylum aspect of the appeal is set aside to be considered afresh.

Directions
1. The asylum appeal is remitted to the First-tier Tribunal (Hatton Cross)
2. The appeal is to be heard by any judge except Judge MB Hussain
3. A Sri Lankan Tamil interpreter is required
4. Time estimate is 3 hours

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 their 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.

Signed Date: 27 September 2016

Upper Tribunal Judge Kamara