Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05044/2016

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 11 January 2017
On 16 January 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AS
Respondent

Representation:
For the Appellant: Ms Abone (Senior Home Office Presenting Officer)
For the Respondent: Ms Rutherford (Counsel)

DECISION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original first Appellant in this determination identified as AS.
1. I have made an anonymity order because this decision refers to the circumstances of AS's minor child.
2. This is an appeal by the Secretary of State for the Home Department ('SSHD') against a decision of the First-tier Tribunal ('FTT') dated 27 September 2016, in which it allowed the appeal of AS, a citizen of Iraq, on Article 8 grounds only, against the SSHD's decision dated 5 May 2016 to refuse a protection and human rights claim.
Background facts
3. The FTT correctly noted that the background to this case is complicated [7]. It is summarised by the FTT at [8-15] and by the SSHD in some detail in the chronology set out in the detailed decision letter at [2-24]. In summary, AS has been in the UK continuously since 16 April 2002 (although he also entered the UK and claimed asylum in 2000, having claimed asylum in the Netherlands in 1998) when he made an application for asylum. In 2004 he was sentenced to 15 months imprisonment for assault and recommended for deportation. He has not re-offended since that time.
4. The asylum appeal was dismissed and AS became appeal rights exhausted on 19 January 2006. No steps were taken to deport him at this stage. He has been in a relationship with a Polish woman, MU, since 2007 and they had a child together in 2012. In a decision dated 30 October 2013 the SSHD refused AS a residence card on the basis that he had not provided sufficient evidence that he was in a durable relationship with an EEA citizen exercising Treaty rights and in any event it would not be appropriate to do so given his 2004 conviction. No steps were taken to deport him at this stage.
5. On 20 May 2012 AS was issued with a notice of liability for deportation based upon his 2004 conviction and on 13 November 2014 he was issued with a decision to deport him from the UK. Ms Abone did not dispute that this was the first time that a decision to deport AS was made. There has been no explanation for the failure to pursue deportation proceedings before this, particularly in 2006 when the asylum claim was refused and in 2013 when the EEA application was refused.
6. In response to further submissions relying upon a fear of persecution and serious harm in Iraq together with AS's relationship with an EEA citizen, UM, and their child, the SSHD refused all his claims in the decision dated 5 May 2016. In so doing the SSHD did not accept that AS was in a genuine relationship with his partner and child.
FTT decision
7. The FTT heard oral evidence from AS and MU, as well as AS's mother-in-law. AS's father-in-law also attended the hearing but was not cross-examined by the SSHD. Having considered all the evidence the FTT found that:
(i) the asylum claim had no evidential foundation at all;
(ii) although AS was convicted of assault in 2004 and sentenced to 15 months imprisonment, he no longer posed a danger to society and is therefore not excluded from humanitarian protection albeit he does not qualify for it;
(iii) AS has been in a genuine durable relationship with his partner since 2007 and they live together with their child as a close family;
(iv) AS should not be removed from the UK under the EEA Regulations because he is a family member of an EEA national and his removal would not be justified on public policy grounds in all the circumstances of the case;
(v) to separate AS from his partner and child by deporting him to Iraq would be unduly harsh and disproportionate.
8. Having made those findings, the FTT dismissed the appeal on protection grounds but allowed it on human rights grounds.
Issues arising
9. FTT Judge Easterman granted the SSHD permission on all the grounds raised in a decision dated 27 October 2016.
10. At the beginning of the hearing before me both representatives were able to narrow the issues in dispute substantially. The following matters were agreed:
(i) The FTT was entitled to make the findings it did [23-44] regarding the claim for asylum and humanitarian protection.
(ii) The FTT was entitled to make the findings of fact it did regarding the appellant's family relationships [50, 60-61] and criminal offending [38, 68]. These findings contain no error of law and are preserved, should an error of law be identified.
(iii) The findings of fact that were made regarding the EEA Regulations are only relevant in so far as they inform the Article 8 balancing exercise. The FTT did not have any EEA grounds of appeal before it. Ms Rutherford accepted that the FTT was wrong to find the 2013 EEA decision not to be sustainable when the decision was open to the SSHD on the evidence available to her at the time. Ms Rutherford also candidly pointed out that AS is not a family member for the purpose of the EEA Regulations. Although he is an extended family member he has not been issued with a residence card. In any event, both representatives agreed that these errors are not material because the FTT did not allow the appeal on EEA grounds but only human rights.
(iv) The only outstanding issue in dispute relates to the Article 8 assessment and the only ground of appeal available to AS is human rights (as the decision post-dates 5 April 2015)
Error of law
11. Ms Abone relied upon the grounds of appeal in relation to Article 8 but focused upon the FTT's failure to address section 117B(4) of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act'). Ms Rutherford relied upon a rule 24 notice and submitted that this was not a material error because the FTT was well aware of the fact that AS was in the UK unlawfully when he established his relationship in 2007. Neither representative took me to any authority to resolve the apparent inconsistencies that might arise in applying both sections 117B(4) and 117C(5).
12. After hearing from both representatives I gave my decision that in failing to address section 117B(4) the FTT had erred in law. The reasons for this can be succinctly stated. Before doing so it is necessary to set out the relevant legal framework found in part 5A of the 2002 Act, in so far as it is relevant to this case.
"PART 5A

ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS

117A Application of this Part

(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts-

(a) breaches a person's right to respect for private and family life under Article 8, and

(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2) In considering the public interest question, the court or tribunal must (in particular) have regard-

(a) in all cases, to the considerations listed in section 117B, and

(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3) In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).

117B Article 8: public interest considerations applicable in all cases

(1) The maintenance of effective immigration controls is in the public interest.

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-

(a) are less of a burden on taxpayers, and

(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-

(a) are not a burden on taxpayers, and

(b) are better able to integrate into society.

(4) Little weight should be given to-

(a) a private life, or

(b) a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.

(6) ?

117C Article 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1?
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh."
13. The FTT correctly rehearsed the above provisions [58] but at no point did it address section 117B(4)(b). Ms Rutherford acknowledged that AS's relationship was established with MU at a time when AS was in the UK unlawfully. Indeed the FTT appears to accept this as a matter of fact [57]. Ms Rutherford also accepted that although this is a deportation case section 117B applies to all cases. This approach is supported by the wording of section 117A(2)(a) and the guidance in Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC) at [13 and 16]. I acknowledge that in Treebhawon the Upper Tribunal considered that the "little weight" provision in section 117B(4)(b) may be of no application to a section 117B(6) case i.e. a non-deportation case involving a qualifying child or partner, but declined to give a definitive answer. In the instant deportation case, Ms Rutherford did not seek to argue that section 117B(4) did not apply. In my judgment it applies in "all cases" as set out within the legislation itself and must be addressed. That does not mean that it will be easy to reconcile with section 117C(5) but a full analysis still needs to be undertaken.
14. Ms Rutherford submitted that the result would have been the same had there been a proper self-direction to the relevance of section 117B(4)(b) to AS. In my view that cannot be said with any degree of confidence. The FTT was clearly aware that AS was in the UK when he met his partner but has simply failed to attribute little weight to the relationship or even contemplate how section 117B(4)(b) might be relevant. It follows that the Article 8 assessment needs to be remade with a proper and full consideration of all relevant matters including section 117B(4)(b).
15. There is an additional error of law in the FTT's approach to the Article 8 assessment. The FTT appears to have considered whether the effect of AS's deportation would be unduly harsh upon his child [69], when she is not a "qualifying child". The child's circumstances are not irrelevant. They are obviously interconnected with the effect of AS's deportation on MU because they are a close family unit. What impacts the child will have a bearing on the impact upon MU and vice versa. The FTT has however failed to direct itself in these terms. The FTT's structural approach to the child and her best interests in the context of a consideration of the effect of AS's deportation on MU is entirely unclear.
16. At the hearing I announced my decision that the FTT's Article 8 assessment is vitiated by these legal errors. Both representatives agreed that I could go on to remake the decision myself on the basis that it is accepted that the FTT's factual findings should be preserved.
Re-making the decision
Evidence
17. As set out above both representatives agreed that I should remake the decision on the basis of the FTT's findings of fact. However, there was little evidence regarding MU's knowledge of AS's immigration status when they met in 2007 and began living together. MU therefore gave brief evidence about this. She explained that she was told about AS's lack of immigration status shortly after meeting him but felt very touched by the difficulties he had experienced and wished to give him a 'second chance'. In addition she could not help but love him from the very beginning, and that she had been proved right because they have been together for nearly 10 years.
Submissions
18. I then heard very brief submissions from Ms Abone. She submitted that the effect of deportation on the partner would not be unduly harsh and the Article 8 appeal should be dismissed. Ms Rutherford relied upon the inordinate delay on the part of the SSHD in seeking to deport AS. She submitted that although little weight can be given to the relationship they were entitled to get on with their lives, given the extensive delay and the past failures to take steps to deport AS when the opportunity was available.
19. After hearing from both representatives I reserved my decision, which I now give with reasons.
Legal framework
The applicable test
20. Both representatives agreed that this is a case where it is necessary to apply the relevant provisions of sections 117A-C of the 2002 Act. The appeal has been brought on human rights grounds only and the Immigration Rules are only relevant in so far as they set out the SSHD's policy. I have taken the Rules into account but they are largely replicated within the legislation for the purposes of the instant case. Exception 2 potentially applies because it is accepted that AS has "a genuine and subsisting relationship" with MU, who is a "qualifying partner". The first question to therefore consider is whether "the effect of deportation on the partner?would be unduly harsh" - see section 117C(5) of the 2002 Act. Ms Abone accepted that if the answer to this is yes, then it followed that deportation of AS would be a disproportionate breach of Article 8 of the ECHR and there would be no need to go any further.
21. I am mindful that "unduly harsh" does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. "Harsh" in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. The addition of the adverb "unduly" raises an already elevated standard still higher. In MM (Uganda) v SSHD [2016] EWCA Civ. 450 the Court of Appeal held that in considering whether the effect of deportation on a child would be unduly harsh within section 117C(5) the court was not required to focus exclusively on the effect on the child but was required to carry out a balancing exercise in which the wider public interest was engaged. Laws LJ (with whom Vos and Hamblen LJJ agreed) held at [22]-[24] that the court should have regard to all the circumstances including the appellant's immigration and criminal histories. That decision is binding upon me and applies, mutandis mutadis, to a case such as this involving a qualifying partner, notwithstanding the contrary view expressed by Elias LJ at [36] in MA (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705, with whom King LJ and Sir Stephen Richards agreed.
22. I acknowledge that in assessing the effect of AS's deportation on MU I must attach little weight to the relationship formed with MU because it was established when AS was in the UK unlawfully (section 117(4)(b)). I am nonetheless still required to consider the effect of AS's deportation on MU.
Effect of deporting AS on MU
23. In assessing the effect of deporting AS upon MU it is relevant to bear in mind, as the FTT accepted, that AS and MU form part of a very close family unit with their soon to be five-year-old daughter. That family unit has been considered by an independent social worker (ISW), Mr Musendo, in a detailed and helpful report dated 15 September 2015. I accept that the report is now of some vintage. However its contents have not been disputed and I accept the ISW's assessment in its entirety. The author is a well-qualified and experienced social worker. He conducted a detailed and thorough assessment. I bear in mind the passage of time since the report. I accept that the family unit remains a very close one and AS is inextricably involved in the day-to-day upbringing of his child, together with MU.
24. I accept that MU would be "devastated" by AS's deportation not just because he would no longer be her committed partner, but also because his absence will render her a single parent. She is likely to find this particularly difficult because, as noted by the ISW, AS and MU are "co-primary carers". AS is clearly a very "hands-on" father and MU is completely reliant upon him to cope with child-care and other related responsibilities. The ISW has provided a number of cogent examples of this. I entirely accept the ISW's assessment that MU "relies heavily" on AS and is "overwhelmed" by his potential loss and the potential additional responsibilities of becoming a single parent.
25. I conclude that the best interests of the child, viewed through the lens of her mother and supported by the ISW, would be overwhelmingly served by AS remaining in the UK. There are four dominant factors: (i) very strong relationship between AS and child (ii) MU's dependence upon AS to facilitate and assist her in her own relationship with the child, (iii) child's age (iv) the loss of her father will adversely impact upon her own cultural and religious identity needs. For the avoidance of doubt, I have taken into account the child's best interests because this informs my assessment of the impact of deportation upon the child's mother, MU. I fully appreciate that the child is not a "qualifying child" and as such the application of exception 2 is limited to the effect on the partner, not the child. However in assessing the effect on the partner it is relevant to take into account her likely distress and emotional difficulties when dealing with the inevitable impact upon the child.
26. I accept the ISW's concern that MU became so emotional about the matter that he recommended a psychiatric assessment. Although one has not been undertaken I nonetheless accept that the effect of AS's deportation upon MU would be seen by her as catastrophic and that she is likely to suffer significant emotional harm for a number of reasons: the loss of her own relationship with AS; she will become in practical terms a single mother; she will have to bear witness to the impact of her own child losing a father. The adverse impact upon the child is likely to be significant for the detailed reasons outlined by the ISW. It is also likely to be permanent given the inherent difficulties in Iraq. It will be unduly harsh for MU to live in Iraq. MU and her child are likely to face very significant difficulties there given the prevailing country situation, and the particular difficulties they will have as westerners and Christians (MU is a devout Catholic). As explained by the ISW the use of modern means of communication is unlikely to obviate the significant adverse impact of separation.
27. I acknowledge that little weight must be attached to the relationship between AS and MU, but I am still entitled to attach some weight to it. It is a very strong relationship of nearly 10 years duration. It has withstood the test of time as well as many other challenges: different religious and cultural backgrounds, AS's uncertain immigration status and applications to the SSHD, financial concerns, difficulties in conceiving a child. Although the relationship was formed in 2007, after AS became appeals rights exhausted in 2006, it is noteworthy that at this point the SSHD made no effort to initiate deportation proceedings against him. Removal to Iraq at this point in time may have been difficult in any event. I acknowledge that MU was aware of AS's unlawful status shortly after they met but that the relationship became a committed one in a short space of time because of the mutual strength of feelings they had for one another. They were granted a certificate of approval for marriage in 2009. I accepted the detailed evidence in their witness statements as to why they never married, and this in no way reduces the strength of the relationship or their commitment to one another. Although the ISW mistakenly referred to the couple as husband and wife this does not diminish the cogency of the report. The couple regard each other as husband and wife and act accordingly.
Wider public interest - "unduly harsh"
28. I must have regard to all the relevant factors including AS's criminal offending and immigration history, when assessing whether or not the high threshold of the effect of deportation on MU being "unduly harsh" is met - see MM (Uganda) supra.
29. It is vitally important not to lose sight in these deliberations of the public interest concerned with the deportation of AS. As set out in Hesham Ali v SSHD [2016] UKSC 60, the Immigration Rules set out the SSHD's assessment of the weight generally to be afforded to some of these factors. In particular, the Rules prescribe a presumption that the deportation of foreign criminals is in the public interest, except where specified factors are present which the Rules accept outweigh that interest. I must make my own assessment of the proportionality / undue harshness of deportation, on the basis of my own consideration of the factors relevant to the particular case, and application of the relevant law. But in doing so, I give considerable weight to the SSHD's policy.
30. I acknowledge the significant public interest in the deportation of foreign criminals. The more serious the appellant's offending, the greater the public interest concerned with his removal. The AS's offence was serious and resulted in a term of imprisonment of fifteen months. It involved assault but there is no indication of a single episode of any repetition of violence. Furthermore, the crime took place some 13 years ago following which AS is remorseful and appears to have achieved complete rehabilitation (see the ISW report). I agree with the FTT [38] that he no longer poses a danger to society. I however acknowledge that the public interest is wider than this - see [70] of Hesham Ali (supra), per Lord Wilson and para 126 of the decision letter.
31. AS's early immigration history and use of false names reflect adversely upon him as noted by the SSHD in the decision letter at para 125. However he applied for asylum in 2002. There was no decision from the SSHD until 2005. After this, there have been substantial delays in proceeding with AS's deportation, as outlined above. The SSHD has provided no explanation for the inordinate period of time it took to issue the decision to deport in November 2014, arising out of a 2004 conviction. This is a factor I am entitled to take into account when considering the wider considerations involved. In Hashem Ali (supra) at [28] it was noted that in the Grand Chamber's decision of Jeunesse v Netherlands [2006] 1 FLR 798 a prolonged delay in removing the applicant from the host country, during which time she had developed strong family and social ties there, constituted exceptional circumstances leading to the conclusion that a fair balance had not been struck. Jeunesse was not a deportation case. The issue of delay has recently been considered by the Court of Appeal in a deportation case, RJG v SSHD (2016) EWCA Civ 102 at [54], per Lloyd Jones LJ:
"I would accept that, in principle, a substantial delay on the part of the Secretary of State in pursuing the deportation of a person convicted of serious crime could be an important factor in determining the proportionality of the deportation, both because it might reflect on the weight to be given to the public interest in deportation and because of its effect on the individuals concerned. In the latter regard, I have firmly in mind the observations of Lord Bingham of Cornhill, made in another context, in EB (Kosovo) v Secretary of State for the Home Department [2009] 1AC 1159 at [14]-[16]."
32. There has been substantial delay on the part of the SSHD in pursuing the deportation of AS and this is a relevant factor to be considered alongside all the other circumstances.
Concluding assessment
33. In my judgment the effect of AS's deportation upon MU can properly be described as "unduly harsh", when all the relevant factors are considered. For that reason I find the case falls within the exception identified in section 117C(5).
34. In performing this exercise I have viewed everything in the round. AS plays a vitally important role in the life of his child and the interference with this relationship via his deportation is likely to have a significant adverse effect on MU. MU is justified in viewing her future and that of their child as very bleak without AS. She faces much more than a merely difficult and challenging time but the decimation of the long-standing and deeply committed family unit that both she and her child are dependent upon and thriving within. AS is the provider of stability, security, emotional support and financial support to the family unit. He brings various important benefits and irreplaceable advantages to the lives of MU and their child, as set out in the ISW report. The removal of these will impact upon MU severely, as set out by the ISW and MU. Both MU and her child are likely to be face significant emotional harm if AS is deported. This goes beyond the relationship between AS and MU, to which I must attach little weight. The consequences of AS's deportation will in my judgment be undoubtedly harsh.
35. Such consequences will be unduly or excessively harsh when the wider considerations are factored in. In so doing I have borne in mind the potency of the main public interest in play as AS is a foreign criminal subject to deportation. However that offence took place in 2004 and he has completely rehabilitated himself. The SSHD's delay in pursuing deportation proceedings remains wholly unexplained.
36. By section 117A(2) I am obliged to have regard to the considerations listed in section 117B. I consider that section 117B applies to this appeal in the following way:
(a) The public interest in the maintenance of effective immigration controls is engaged. It is particularly significant because AS is a foreign criminal - see sections 117C(1) and (2).
(b) There is no infringement of the "English speaking" public interest as AS speaks English.
(c) AS was given permission to work in July 2015. There is little evidence that he has worked but the SSHD accepts (para 99 of the decision letter) that MU has permanent residence having exercised Treaty rights for five years. In the premises the family have demonstrated a certain degree of self-sufficiency.
(d) The private life established by AS is lengthy (in the UK since 2002) but qualifies for the attribution of little weight only.
37. Balancing all of the facts and factors, my conclusion is that the severity of the impact on MU of AS's deportation with all that would flow therefrom, would be of such proportion as to be unduly harsh. It follows that AS's deportation would constitute a disproportionate breach of Article 8.

Decision
38. The FTT decision contains an error of law and is set aside.
39. I remake the decision by allowing the appeal under Article 8 of the ECHR

Signed:

Ms M. Plimmer
Judge of the Upper Tribunal

Date:
13 January 2017