Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05788/2018

THE IMMIGRATION ACTS

Heard at Field House
On the 24 June 2022
Decision & Reasons Promulgated
On the 21 July 2022

Before

DEPUTY UPPER TRIBUNAL JUDGE SKINNER

Between

MR ABDISALAN MOHAMED FARAH
[no anonymity order made]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr P Haywood, counsel, instructed by Wilson Solicitors LLP
For the respondent: Mr S Lecointe, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS
1. The Appellant is a national of Somalia, born there in 1979. In 1993, aged 13, he came to the UK with his mother. The Appellant was granted exceptional leave to remain and, in 2002, was granted indefinite leave to remain.
2. Since then however, the Appellant has been convicted of criminal offences. The most serious of these was a burglary committed in 2011 for which he was sentenced to 18 months imprisonment. He was also convicted in 1999 and 2017 of more minor offences which did not pass the custody threshold.
3. In 2018 the Secretary of State made a deportation order against him as a result of the burglary conviction and the Appellant made a protection and human rights claim in response, to seek to avail himself of the exceptions to automatic deportation contained in section 33 of the UK Borders Act 2007. The Respondent, by decision dated 15 February 2018, refused that claim.
4. The Appellant appealed to the First-tier Tribunal against that refusal. By a decision promulgated on 25 October 2019 the First-Tier Tribunal dismissed that appeal on all grounds.
5. Permission to appeal to this tribunal was initially refused by the First-tier Tribunal and the Upper Tribunal. However, following a judicial review of the Upper Tribunal’s refusal, permission was eventually granted on 17 March 2022.
6. The Appellant’s appeal to the Upper Tribunal relates only to his claim that his removal would violate his right to respect for his private and family life protected by Article 8 ECHR. It is therefore unnecessary to say anything further about his failed claims to be recognised as a refugee, to be entitled to humanitarian protection under the Qualification Directive, or that removal to Somalia would breach his rights under Article 3 ECHR.
First-tier Tribunal’s decision on Article 8
7. In relation to the Appellant’s family life, the Appellant claimed to have a genuine and subsisting relationship with a Ms Artan, his partner, and her three children, born in 2009, 2017 and 2018. The Appellant is not the father of the first or second child, but was accepted by the Respondent to be the father of the third child. Nonetheless, the Tribunal accepted that the Appellant had a genuine and subsisting relationship with his partner and each of the three children.
8. The Tribunal then considered the children’s best interests and considered that they lay in the children continuing in the current domestic circumstances with the same frequency of face-to-face contact as they currently enjoyed.
9. The Tribunal then noted the Respondent’s concession that it would be unduly harsh for Ms Artan to live in Somalia unless there were some significant and durable change in the situation there and found that it would be unduly harsh for the Appellant’s partner to return to Somalia. In those circumstances, the Tribunal also found that it would be unduly harsh for each of the children to live in Somalia without their mother.
10. As to whether it would be unduly harsh for the Appellant’s partner or her children to remain in the UK without the Appellant, the Judge accepted that face-to-face contact in Somalia would be problematic and probably unrealistic, but considered that this did not rule out direct contact in another country. He noted that there was no evidence to indicate that direct contact would not be possible elsewhere. The Tribunal accordingly concluded that, although the deportation of the Appellant and his separation from his partner and children might be characterised as harsh, taking into account the public interest in the deportation of foreign criminals, it was not unduly harsh. The Appellant accordingly did not have the benefit of the family life exception under para 399(a) and (b) of the Immigration Rules and section 117C(5) of the Nationality, Immigration and Asylum Act 2002.
11. The Tribunal next considered the Appellant’s private life. He noted that to make out a claim based on private life under para 399A of the Immigration Rules (which mirrors the exception in section 117C(4) of the 2002 Act) the Appellant had to show that he had been lawfully resident in the UK for most of his life, that he is socially and culturally integrated in the UK and, thirdly, that there would be very significant obstacles to his integration into Somalia. The Tribunal accepted that the first of these criteria were met, but, as set out in more detail below, found that the second and third were not. The private life exception in para 399A and section 117C(4) was accordingly not satisfied.
12. Finally, at para 52, the Tribunal reminded itself that the assessment of proportionality involves the balancing of the appellant’s interests and the interests of those enjoying family life with him, against the public interest, concluding that “The appellant is unable to prove that either of the exceptions, referred to in sub-sections (4) and (5) [of section 117C of the 2002 Act] applies to him and in these circumstances the public interest requires his deportation.”
Grounds of and permission to appeal
13. The Appellant advances the following three grounds of appeal,:
(a) First, he submits that the Judge erred in his assessment of whether the Appellant was socially and culturally integrated in the UK, in particular by not conducting a holistic assessment of his circumstances, including his ability to speak English, his young age upon arrival, his long period of lawful residence, his genuine and subsisting relationships with his British partner and three British children and a single custodial sentence.
(b) Second, he submits that the Judge applied an incorrect and excessively high legal test when considering the question of whether the appellant would face very significant obstacles on return to Somalia in effect applying the test for whether humanitarian protection should be granted by reason of indiscriminate violence in a country pursuant to Article 15(c) of the Qualification Directive.
(c) Third, the Appellant submits that the Judge gave inadequate consideration to Article 8 ECHR beyond the ‘Exceptions’ contained in paras 399(b) and 399A of the Immigration Rules.
14. As noted above, permission to appeal was granted on 17 March 2022
15. The Respondent did not provide a response under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Upper Tribunal hearing
16. At the hearing, I heard from Mr Haywood for the Appellant and Ms Lecointe for the Respondent. At the start of the hearing, Miss Lecoint indicated that she had not been able to access the papers relating to this appeal. I was able to provide her with copies from the file of the determination under appeal, the grounds, the Respondent’s bundle prepared for the First-tier Tribunal hearing, the underlying deportation decisions and various other documents. I adjourned for 40 minutes to enable her to have time to read and consider them and the Respondent’s position in relation to them. I also drew the parties’ attention to the recent Supreme Court decision of SC (Jamaica) [2022] UKSC 15 and invited the parties to consider it during this short adjournment.
17. After the adjournment, Miss Lecointe indicated that she had had sufficient time to consider the documents and SC and, likewise, Mr Haywood had considered SC.
18. Having considered the First-tier Tribunal’s determination and the grounds, Ms Lecointe accepted on behalf of the Respondent that each of the errors alleged by the Appellant in the First-tier Tribunal’s assessment of Article 8 ECHR were made out and that they were material errors.
19. Before turning to the grounds, I note that while it is to Ms Lecointe’s credit that she has now made sensible concessions, it is to the Respondent’s discredit that it has taken her almost 3 years to concede that there are material errors in the decision of the First-tier Tribunal. Had the Respondent done so timeously, there would have been no need for a judicial review to the High Court, this appeal could have been determined sooner and the re-determination of the Appellant’s appeal could very likely have been determined some time ago, which would have been in both parties’ and the public interest. No good reason for this delay was given and there does not appear to be one.
Ground 1: social and cultural integration
20. In relation to the question of social integration in this case, the Tribunal recorded at para 46 the Appellant’s reliance on having a partner and a child and on his speaking English and his submission that while a long criminal record and a lengthy time in prison might prevent integration that was not the case here. In para 47, the Tribunal noted the Respondent’s reliance on Binbuga [2019] EWCA Civ 551, which it then set out at length. At para 48 the Judge stated that he considered that that authority “make[s] it clear that the appellant must demonstrate that he has become incorporated within the lawful social structure of the UK. He must demonstrate his acceptance and assumption of the culture of the UK, its core values, ideas, customs and social behaviour.”
21. The Tribunal then concluded on this issue as follows:
“While it is true that the appellant has formed a relationship with his partner, which began in 2017, and has relationships with the three children, there is no evidence before the Tribunal to indicate that he has become integrated in the social structure of the UK or has accepted its culture, core values and so on.
49. It is particularly stark that the appellant has failed to demonstrate his acceptance of the principle of the rule of law. Despite his apparent acceptance of responsibility for his part in the burglary for which he received a sentence of imprisonment, it has been clear that he has minimised his responsibility both in his criminal trial and in his evidence to this Tribunal. Moreover, he reoffended and in July 2017 pleaded guilty to two further offences. He has not adduced cogent evidence to indicate that he is on the balance of probabilities socially and culturally integrated in the UK.”
22. The Appellant’s submission is that the Judge failed to conduct the requisite holistic assessment and to take proper account of his ability to speak English, his young age upon arrival, his long period of lawful residence, his genuine and subsisting relationships with his British partner and three British children and a single custodial sentence.
23. The Respondent accepted that this was an error of law. I agree. The test for social and cultural integration is that set out in CI (Nigeria) [2019] EWCA Civ 2027; [2020] Imm AR 503, expressly approved in part (and not otherwise doubted) by the Supreme Court in SC. That test was not in substance applied here and the Tribunal’s assessment of what is required to satisfy this test imposed a higher threshold than that test.

Ground 2: Very significant obstacles
24. In deciding whether there were very significant obstacles for the purpose of Exception 1 in section 117C, the Judge, at para 51 of his decision, noted the relevant background country evidence, and held that “This was insufficient to demonstrate that the appellant would be at real risk within the terms of Article 15(c)” of the Qualification Directive. The Respondent accepted that in doing so the Judge was applying the Article 15(c) standard to the question of whether there were very significant obstacles to the Appellant’s integration in Somalia and that in doing so the Judge erred. I agree. Article 15(c) and the ‘very significant obstacles’ tests are not the same and to apply one by sole reference to the other constitutes an error of law.
Ground 3: Article 8 outside of the Exceptions
25. In NA (Pakistan) [2016] EWCA Civ 662; [2017] 1 WLR 207, the Court of Appeal considered that there was an obvious drafting error in failing to provide to offenders sentenced to between one and four years imprisonment the same fallback provision as applies to those sentenced to more than four years. Lord Stevens in SC held at [111] that where the two Exceptions do not apply, the effect of NA is that:
“a full proportionality assessment is required, weighing the interference with the article 8 rights of the potential deportee and his family against the public interest in his deportation. In conducting that assessment, the decision-maker is required by section 117C(6) (and paragraph 398 of the Immigration Rules) to proceed on the basis that ‘the public interest requires deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2’.”
26. The Tribunal did not refer to this test or to NA and its only consideration of Article 8 other than through the lens of Exceptions 1 and 2 was contained in para 52, as follows:
“I remind myself that the assessment of proportionality, required by Article 8, involves the balancing of the appellant’s interests, and the interests of those with whom he enjoys family life, against the public interest. I return in closing to section 117C of the 2002 Act. The appellant is unable to prove that either of the exceptions, referred to in sub-sections (4) and (5) applies to him and in these circumstances the public interest requires his deportation.”
27. The Appellant criticises this for failing to take a ‘balance sheet’ approach, for determining Article 8 only by reference to the Exceptions and by failing to take account of the seriousness (or otherwise) of the offence in determining the public interest.
28. I do not consider that the Appellant’s submission in relation to the balance sheet approach has any merit. While it might be good practice, it is not an error of law not to do adopt such an approach: see AS [2019] EWCA Civ 417.
29. In my judgment however there is force in the Appellant’s submission that Tribunal only assessed proportionality by reference to whether the two Exceptions in section 117C(4)-(5) were met and did not conduct the necessary full proportionality analysis outside of the Exceptions. The Judge’s reasoning appears to be that because those Exceptions were not met the public interest required his deportation. While the Secretary of State’s rules are the starting point and to be accorded significant weight in the Article 8 balance, they are not the end point of that analysis, which is respectfully how the Tribunal appears to have treated them here. That is a flawed approach.
Materiality and disposal
30. This Tribunal will not generally set aside a decision of the First-tier Tribunal where any errors found would make no practical difference to the outcome. However, the Respondent accepted that the errors were material and in those circumstances I will set aside the First-tier Tribunal’s decision in so far as it is affected by the errors identified.
31. In my judgment, and indeed as the parties agreed, this is an appropriate case for remittal to the First-tier Tribunal, because it will require a full fact-finding exercise in relation to the Appellant’s Article 8 claim as at the date of the hearing, which will take place a number of years since the last hearing and in respect of which it is reasonable to expect that events may have moved on. I was told, for example, that the Appellant and his partner have had a further two children since the previous determination.
32. Mr Haywood suggested that there should be a case management hearing when the matter is remitted, given the passage of time since the evidence in this case was originally filed. There is sense in this suggestion, but how the appeal is case managed on remittal is (even assuming I have power to make directions for the management of the remitted appeal) more appropriately a matter for the First-tier Tribunal.
Anonymity
33. Finally, the Appellant did not seek an anonymity order and, in light of the fact that his protection claims have fallen away, there is in my judgment no good reason to interfere with the open justice principle. No anonymity order is therefore made. Mr Haywood rightly noted that the case involved the Appellant’s children. There can however be no conceivable prejudice to their interests in the identification of the Appellant in this short judgment dealing with legal rather than factual issues. Whether their interests justify an anonymity order when the Appellant’s Article 8 case comes to be reconsidered by the First-tier Tribunal will also be a matter for the First-tier Tribunal.

DECISION
I am satisfied that the decision of First-tier Tribunal Judge Pooler promulgated on 25 October 2019 discloses errors of law. I set aside the decision and remit the appeal in so far as it relates to the Appellant’s Article 8 claims.

Signed Paul R. Skinner Date: 29 June 2022
Deputy Upper Tribunal Judge Skinner