Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00079/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 October 2016
On 17 October 2016

Before

THE RIGHT HONOURABLE LORD BOYD OF DUNCANSBY
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Manmohan Singh
(anonymity direction REVOKED)
Respondent

Representation:
For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent: Mr J Dhanji, Counsel, instructed by Malik & Malik Solicitors

DECISION AND REASONS

1. The Secretary of State appeals with leave against the decision of First-tier Tribunal Judge Herbert promulgated on 27 June 2016 granting an appeal against the decision of the Secretary of State dated 27 August 2015 to revoke the appellant's indefinite leave to remain in the United Kingdom. I will refer to the respondent in this appeal as the appellant as he was against the decision of the Secretary of State.

2. The appellant's history and circumstances are laid out in paragraphs 3 to 9 of the determination. Briefly the appellant is a 35 year old Afghan national married to a UK national with British children aged 8, 6 and 1. He entered the United Kingdom in 1999 and was granted leave to remain in 2001. He was convicted of driving offences in 2004 and disqualified from driving for twelve months. He was granted indefinite leave to remain on 26 January 2006. In 2010 and 2011 he was convicted of two offences of dishonesty. The second offence, fraud, attracted a sentence of 32 months' imprisonment.

3. A deportation order was made by the Secretary of State on 24 May 2014. The appellant appealed against that decision. It was heard by Immigration Judge Wiseman and was successful on Article 8 ECHR grounds. The Secretary of State's appeal against that decision was unsuccessful. On 27 August 2015 the Secretary of State made a decision to revoke the appellant's indefinite leave to remain under Section 61(1) of the 2002 Act.

The Legal Basis for the Secretary of State's Decision

4. Section 76(1) of the Nationality, Immigration and Asylum Act 2002 provides:

"(1) The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if the person -

(a) is liable to deportation, but

(b) cannot be deported for legal reasons."

It is agreed that the appellant is liable for deportation but that he cannot be deported for legal reasons.

5. In R (on the application of Fitzroy George) [2014] UKSC 28 the Supreme Court held that the revocation of the deportation order did not revive an individual's indefinite leave to remain but the Secretary of State was entitled to regulate his status by means of limited or conditional leave. At paragraph 31 Lord Hughes giving the opinion of the court observed that it makes perfect sense, whilst the legal obstacle remains, for the Secretary of State to be in a position to revisit the terms of leave to enter.

The First-tier Tribunal's Decision

6. In reaching his decision the Immigration Judge adopted the findings of Judge Wiseman in the appellant's successful appeal against the deportation order. He found that the appellant has a family and private life in the United Kingdom which would be significantly impeded should his indefinite leave to remain be revoked. He would have to reapply at intervals for leave to remain with all the uncertainty for the family that that would entail as well as a significant financial cost. There was no good reason why a person who has clearly rehabilitated himself to a significant extent and not reoffended for the Secretary of State now to revoke his indefinite leave to remain.

7. The Immigration Judge found that the Secretary of State had not followed her own guidance. Applying the principles set out in Razgar there would be significant and serious consequences of a removal from the UK for both himself and his three British citizen children. He found that there were compelling and compassionate circumstances for his family and that the decision was disproportionate to the legitimate aims to be achieved.

8. Finally he considered that the Secretary of State had failed to apply Section 55 of the Borders, Citizenship and Immigration Act 2009.

The Secretary of State's Appeal

9. The grounds of appeal followed three broad grounds. First it is said that the Immigration Judge made a material misdirection in law. He found that the Secretary of State had not followed her own guidance on revocation of indefinite leave to remain dated 19 October 2014.

10. In particular, he misapplied paragraph 4.1 and gave weight to the length of time between the offending behaviour and the Secretary of State's decision. Moreover, he had failed to identify factors which were said to be exceptional as to justify displacing the obligation of the Secretary of State to protect the public interest. None of the examples identified in paragraph 44 applied. The Immigration Judge had erred in his assessment of exceptional and compassionate circumstances that should be held in mitigation against removal as opposed to assessing the effect of limiting grants of leave to short duration rather than indefinite leave to remain.

11. Secondly it was said that the Immigration Judge had failed to give adequate reasons for finding that the exercise of discretion by the Secretary of State was unreasonable. The decision was one that was within the Secretary of State's discretion and reasonable in the circumstances.

12. Finally, under reference to the case of Fitzroy George it was said that the Immigration Judge had failed to follow a binding precedent.

13. Mr Avery, the Home Office Presenting Officer, in his submissions said that the Immigration Judge's determination was vague. He pointed out that the purpose of Article 8 was to protect fundamental human rights and it was difficult to see how the facts found established in this case breached Article 8. There was no question of the appellant being removed at this time and that was a misconception on the part of the Immigration Judge. He had applied Razgar but that was not the question at issue in this case.

14. Mr Avery pointed out that at paragraph 47 the Immigration Judge found that the Secretary of State had failed to follow the guidelines in that the decision ought to have been referred to a senior caseworker. In fact he said that it had been referred to a senior case worker. The Presenting Officer had never been asked about that. Finally he referred me to the case of Fitzroy George and the assistance here.

The Appellant's Response

15. Mr Dhanji on behalf of the appellant accepted that Section 76(1) applied and that the decision was taken under that Section, and that the case of Fitzroy George applied. He also accepted that the policy point taken in respect of the Immigration Judge's decision was well made. He referred me to the skeleton argument placed before the Immigration Judge. He said that the decision to revoke the indefinite leave to remain was one which was appealable on Article 8 grounds and that what had occurred in this case was a disproportionate interference into private and family life. That should be considered as a standalone argument distinct from the policy argument and, he submitted, was properly addressed by the Immigration Judge.

16. So far as Razgar is concerned he accepted that Razgar in its terms was not applicable but submitted nevertheless that there was an appropriate test to be met and the test was akin to the Razgar test.

17. Finally he submitted that there was a rational basis for the decision on the appeal. The Immigration Judge in his appraisal places weight on the length of time between the appellant's offending and the decision of the Secretary of State to revoke indefinite leave to remain on 27 August 2015. Although the conviction was in 2010 the Immigration Judge (at paragraph 34) quotes Judge Wiseman that because of the lengthy investigation it was now six or seven years since the appellant had offended. He had now lived in the community for a further two years without reoffending and he was unlikely to offend again. A letter from the National Probation Service to the effect that he was at low risk of reoffending was before the Immigration Judge.

Discussion

18. At paragraph 40 the Immigration Judge finds that there was no good reason why it was a person who has clearly rehabilitated himself to a significant extent that he has not committed any further offences for many years for the Secretary of State now to seek to revoke his indefinite leave to remain at this stage. He then went on to state that the Secretary of State had not followed her own guidance.

19. At paragraph 42 the Immigration Judge quotes paragraph 4.1 of the guidelines for revocation of indefinite leave to remain published on 19 October 2015. It is clear that he was under the misapprehension that the consideration of time between offending and decision is relevant to a consideration of revocation of leave under Section 76(1). The guidance states that the length of time between the incident and review of a person's continuing entitlement to indefinite leave to remain is relevant to cases under Section 76(2) and 76(3) but not to Section 76(1). In a sentence omitted by the Immigration Judge the guidance states the reason for that distinction. The sentence reads:

"For cases under Section 76(1) length of time spent in the UK will not constitute a bar to revocation of indefinite leave because it, and any other Article 8 considerations, will have been taken into account in deciding whether the person should be deported."

20. In my opinion the Immigration Judge has clearly misdirected himself in a material way in the assessment. I note at paragraph 49 of the Immigration Judge's decision that the length of time played a part in his overall assessment. For that reason the appeal must succeed.

21. However, I also consider that the Immigration Judge has misdirected himself on the assessment of exceptional and compassionate circumstances. He purports to have conducted an Article 8 exercise. In my opinion Article 8 is not engaged. While it is true that the action of the Secretary of State will impact on the family I do not consider that they constitute an interference with the right to a private and family life. That misdirection is emphasised by his application of the principles in Razgar. A proper reading of Razgar makes it clear that the principles apply when a person is resisting deportation on Article 8 grounds. Removal from the UK is not an issue in this case but the judgment in part reads as if that is the determining factor.

22. At paragraph 45 he states in terms that there would flow significant serious consequences for his removal from the UK for both himself, his wife and his three British citizen children. While there is no doubt a balancing exercise to be drawn between the interests of the appellant, his wife and family on the one hand and the public interest in regulating the terms of stay in the UK while a legal obstacle to his removal remains on the other it is not the same exercise as when the appellant's removal from the UK has been pursued. The consequences of removal are far more severe than those which flow from a revocation of indefinite leave to remain. Nowhere is that recognised within the Immigration Judge's decision. Accordingly, for both of these reasons I find that the appeal should be allowed.

23. The issue then is whether or not I should remake the decision. Mr Dhanji asked that I consider allowing further written submissions. Mr Avery on the other hand considered that I could make the decision myself. On the basis of the information before me and the findings of fact I consider that I can do so.

24. There is no doubt that a revocation of indefinite leave to remain will have consequences for the appellant and his family. I accept that there will be difficulties in getting bank accounts and bank loans. He may find it harder or even impossible to obtain a mortgage in his own name. He will find travel more difficult and that may impede his ability to go abroad with his family on holiday. He will have the uncertainty of not knowing whether an application for renewal of leave would be successful or not and there will be the not inconsiderable costs associated with applications for renewal. Perhaps most important here is the potential adverse effect on the children. As they grow older they may become more aware of the precarious nature of their father's stay in the UK and that may have a disruptive effect on them although no doubt it may be mitigated with careful handling by the parents.

25. The Immigration Judge took into account the fact that one of the children has a medical condition. With respect, I do not think that is a valid consideration in the context of withdrawal of indefinite leave to remain. It would be different if the issue was deportation.

26. There remains an issue as to how far the length of time since the offending behaviour and the appellant's low risk of reoffending is a factor in the decision-making process. In my view, however, this is a matter which is primarily for the Secretary of State. Parliament has vested a discretion in her. As Lord Hughes made clear in the decision of the Supreme Court in Fitzroy George at paragraph 31, the status of the appellant as a person liable to deportation has long ago been decided. The fact is that he is a person whose presence in the UK is not conducive to the public good.

27. Accordingly the issue is one of balance between the public interest in regulating the right to remain of a person whose presence in this country has been judged not to be conducive to the public good against the interests of the appellant and his family. While there will be effects on the family I do not accept that they amount to interference into private and family life under Article 8. Even if they did I am satisfied that the decision to revoke indefinite leave to remain is not disproportionate. Accordingly I shall remake the decision and allow the Secretary of State's appeal.

Notice of Decision

The appeal is allowed.

No anonymity direction is made.

LORD BOYD OF DUNCANSBY
Sitting as a Judge of the Upper Tribunal
(Immigration and Asylum Chamber)

Date: 17 October 2016