Tribunal decisions

The decision

IAC-FH-ck-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00038/2015

THE IMMIGRATION ACTS

Heard at Field House
Decisions & Reasons Promulgated
On 18th October 2016
On 15th November 2016

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Huseyin [K]
(no anonymity order made)
Respondent

Representation:
For the Appellant: Mr C Avery, a Senior Home Office Presenting Officer
For the Respondent: Mr B Kpogho, Solicitor, Able Solicitors

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal allowing the claimant's appeal against her decision to deport him to Turkey as a foreign criminal. That deportation order had the effect of invalidating the claimant's indefinite leave to remain in the United Kingdom where he has lived since coming here on a family reunion visa in 2006 to join his father, who had refugee status as from 12th August 2005.
2. The claimant remains a Turkish citizen and is in a relationship with the woman who is now his wife, who is a citizen of Cyprus.
3. The Secretary of State certified her decision under Section 72(9) and in the First-tier and before me the claimant does not dispute that Section 72(9) is applicable nor does he seek to pursue any protection application under the Refugee Convention or the Qualification Directive. This appeal turns only on whether it is unduly harsh to remove the claimant to Turkey having regard to his circumstances in relationship with his wife and their child.
4. I granted permission on this appeal partly because Section 72(9) had not been properly dealt with at the beginning of the decision but also because this is a decision which follows MAB and not KMO and that has resulted in an erroneous approach to the circumstances of removal as set out in MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450.
5. At the date of the respondent's decision on 3rd July 2015 the claimant and his wife remained estranged and he was still in prison. His daughter had lived with her father only for a few months after her birth before his arrest for assaulting her mother on 17th January 2014. That was not the claimant's first conviction for assaulting the woman who is now his wife. There had been two previous convictions, the first on 19th April 2011 resulting in a restraining order to last until 18th April 2012, a fine and compensation and the second on 23rd December 2011 resulting in a conviction and a term of suspended imprisonment. The third offence in January 2014 was therefore a breach of the suspended sentence.
6. The claimant had threatened his wife with harm to both her and the baby, which the judge in his sentencing remarks considered still presented a high risk. He was convicted of common assault by beating and intimidating a witness, to wit, his wife, and sentenced to five months for the common assault and 29 months for the intimidation to run concurrently.
7. On the expiry of his sentence he was retained in immigration detention. The judge made an indefinite restraining order which was discharged in February 2016 but the claimant was not actually released until July 2016 and he still is not living with his wife, having been bailed to live with his father. The reason for that is not before me because there is no evidence about the basis for the bail conditions in any form before me.
8. It is said that the claimant and his wife are reconciled but that alone is not sufficient to amount to evidence that it is unduly harsh either under 399(a)(i)(b) or 299(b)(iii) or Section 117C(5) of the 2002 Act for his wife and child to remain in the United Kingdom without the claimant. It is not suggested by either party that they can reasonably be expected to return to Turkey with him.
9. It is the claimant's case that the current circumstances are different from those which were taken into account by the First-tier Tribunal. There is no real evidence as to what the current position is before me and therefore, while I set aside this determination I do not consider that it is possible to remake the decision today. The decision will be remade in the First-tier Tribunal on a date to be fixed.
Conclusions
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision. The decision will be remade in the First-tier Tribunal on a date to be fixed.

Signed: Judith A J C Gleeson Date: 14 November 2016
Upper Tribunal Judge Gleeson