Upper Tribunal
(Immigration
and Asylum Chamber) Appeal Number: IA/08237/2008
THE IMMIGRATION ACTS
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Heard at Field House
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Determination Promulgated
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On 9 September 2014
and 4 November 2014
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On 12 November 2014
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Before
UPPER TRIBUNAL JUDGE MOULDEN
Between
MR A L
(Anonymity Direction Made)
Appellant
and
SECRETARY OF STATE FOR THE HOME
DEPARTMENT
Respondent
Representation:
For the
Appellant: Mr K Mak a solicitor from MKM Solicitors
For
the Respondent: Mr T Wilding a Senior Home Office Presenting Officer
DETERMINATION AND REASONS
Introduction
- The
appellant is a citizen of Nigeria who was born on 5 April 1980. He appeals
against the respondent’s decision of 1 May 2008 to make a deportation
order against him. The reasons for this decision are contained in a letter
dated 30 April 2008. The respondent concluded that it was conducive to the
public good to make a deportation order against the appellant pursuant to
section 3 (5) (a) of the Immigration Act 1971 as amended. The index
offence leading to the decision was the appellant’s conviction at
Bournemouth Crown Court on 3 December 2004 of possessing a class A
controlled drug, cocaine, with intent to supply. He was sentenced to 6
years imprisonment.
- The
appellant has other convictions. On 2 July 2001 at Inner London Crown
Court he was convicted on two counts of possessing a class A drug,
heroin, with intent to supply and three counts of supplying a class A
drug, also heroin. He was sentenced to 54 months imprisonment on these
charges to run concurrently.
Immigration history
- There
is a lengthy immigration and appeals history. The appellant arrived in the
UK in 1991 when he was 11 years old. He joined his parents. His siblings
are also living in this country. The appellant and his parents and
siblings were granted indefinite leave to remain on 20 September 2000. His
parents were naturalised as British citizens on 8 March 2004. His siblings
have also become British citizens. The appellant has not become a British
citizen.
Appeal history
- The
respondent served a notice of decision to deport the appellant on 8
February 2007. He appealed and his appeal was heard by a panel of the
Asylum and Immigration Tribunal (“the first panel”) on 16 May 2007. By a determination
promulgated on 14 June 2007 his appeal was allowed in circumstances and
for reasons to which I will need to return. The respondent applied for
reconsideration which was ordered on 27 June 2007. The reconsideration
came before Senior Immigration Judge Spencer 3 October 2007. On that day
the respondent withdrew the decision of 8 February 2007. The judge
recorded that the appeal should be treated as withdrawn since the decision
against which it was bought had been withdrawn.
- The
respondent issued the new decision, to make a deportation order, on 1 May
2008. That is the decision which is the subject of the present appeal. The
appellant appealed and his appeal was heard by a panel of the Asylum and
Immigration Tribunal (“the second panel”) on 23 June 2008. The appellant’s
appeal was dismissed in a determination promulgated on 1 June 2008.
- The
appellant applied for reconsideration which was refused by a Senior
Immigration Judge on 17 July 2008. The appellant renewed the application
to the High Court and reconsideration was ordered on 13 November 2008.
- The
reconsideration came before Senior Immigration Judge Taylor on 7 January
2009. She found that the second panel had erred in law and adjourned for a
second stage reconsideration. That reconsideration came before a panel of
the Asylum and Immigration Tribunal (“the third panel”) on 10 September
2009. In a determination promulgated on 19 November 2009 this panel
dismissed the appellant’s appeal both under the Immigration Rules and on
human rights grounds.
- The
appellant applied for permission to appeal to the Court of Appeal which
was refused by a Senior Immigration Judge on 6 January 2010. The appellant
renewed the application to the Court of Appeal where permission to appeal
was granted. There has now been a consent order in the Court of Appeal
dated 25 November 2010 accompanied by an agreed statement of reasons. The
determination of the third panel promulgated on 19 November 2009
dismissing the appellant’s appeal was set aside and the case remitted to
the Upper Tribunal for reconsideration of all issues. None of the findings
of fact made by the third panel are to stand but the findings of fact made
by the first panel set out in paragraph 42 of the determination of the
third panel are “subject to the appropriate preservation”.
- Following
the decision of the Court of Appeal the appeal was not listed for hearing
in the Upper Tribunal until 9 September 2014. Mr Mak submits and Mr
Wilding does not dispute that during the period between November 2010 and
July 2014 when notice of hearing was issued by the Upper Tribunal the
appellant’s present and former solicitors were in contact with the Upper
Tribunal on a number of occasions pressing for the case to be listed for
hearing. Eventually, it was discovered that the Tribunal file had been
destroyed and efforts had to be made to reconstitute it. Mr Mak submits
that during this period the respondent did nothing to press for the appeal
to be heard.
The hearings before me
- The
appeal came before me on 9 September 2014. Mr Mak appeared for the
appellant and Mr Wilding for the respondent. There was insufficient time
for the hearing to be completed that day and I adjourned part heard after
hearing evidence from the appellant, his mother and his father. I gave
directions which, with a little slippage of time, have been complied with
by both parties. The hearing continued and was completed on 4 November
2014.
Documentary evidence and authorities
- I
now have a composite bundle prepared by the appellant’s solicitors which,
I am told, contains all the relevant material together with written
submissions from the appellant, new witness statements from the
appellant’s partner and his daughter the Immigration Directorate
Instructions chapter 13: criminality guidance in Article 8 ECHR Cases (version
5.0 28 July 2014), the current version of part 13 of the Immigration Rules
dealing with deportation, the appellant’s authorities bundle, the
respondent’s skeleton argument, ZZ (Tanzania) v SSHD [2014] EWCA Civ 1404, OH (Serbia) v SSHD [2008] EWCA Civ 694, JO (Uganda) and JT (Ivory
Coast) v SSHD [2010] EWCA Civ 10, MM (Zimbabwe) v SSHD [2012] EWCA Civ 135, YM (Uganda) v SSHD [2014] EWCA Civ 1292 and SS (Nigeria) v
SSHD [2013] EWCA Civ 550. There were further witness statement
submitted by the appellant in his “Remitted Hearing” bundle.
- I
have heard oral evidence from the appellant, his mother, his father, his
brother K and his current partner R. They were examined in chief, cross
examined and, in some cases, re-examined. I asked some questions for the purpose
of clarification. Their evidence is set out in my record of proceedings.
Submissions
- Mr
Wilding relied on his skeleton argument. In relation to the fairness/abuse
of process point he submitted that Senior Immigration Judge Taylor’s
decision was determinative. The first panel allowed the appellant’s appeal
on the basis that the respondent’s decision was incorrect rather than on
the merits based on the evidence. The respondent remade the decision on 30
April 2008. The Court of Appeal specifically did not grant permission on
the fairness/abuse of process point. It was no longer open to the
appellant to argue this. His submission was in three parts and in the
alternative. Firstly, I was bound by the decision of Senior Immigration
Judge Taylor. Secondly, even if her decision was not binding on me I
should follow her reasoning in reaching the same conclusion. Thirdly, the
Court of Appeal had not allowed the ground of appeal which would permit
this to be argued any further.
- In
relation to the Article 8 grounds, Mr Wilding also relied on his skeleton.
He accepted that the appellant had benefited by the delay to the extent
that family ties had grown stronger and he had stayed out of trouble for
longer. There had not been the sort of delay reflected in EB (Kosovo) v
SSHD [2008] UKHL 41. Paragraphs 399 and 399A were not available to the
appellant because of the provisions of paragraph 398(a). Even if he could
show that he could bring himself within exceptions 1 and/or 2 in section
117C of the Immigration Act 2014 he still needed to go on and show that
there were very compelling circumstances over and above these. He had
failed to do so. I was referred to LC (China) at paragraph 24 and ZZ (Tanzania) at paragraphs 34 and 35.
- In
reply to my question as to the respondent’s position regarding the
credibility of the witnesses, Mr Wilding said that there was no criticism
he could properly make of their evidence. He accepted that nothing had
happened to call into question the findings of the first panel preserved
by the Court of Appeal including the conclusion that the appellant posed
in low risk of reoffending. I was asked to dismiss the appeal.
- Mr
Mak relied on his written submissions which I will refer to as his
skeleton argument. He did not agree with Mr Wilding’s submission and
argued that the first panel had allowed the appellant’s appeal on the
merits. He took me to what he said were the relevant passages in the
determination and submitted that there were findings both that there were
exceptional circumstances and that it would not be in the public interest
to remove the appellant. He accepted that in 2007 at the time Senior
Immigration Judge Spencer recorded that the respondent had withdrawn the
decision the then unified Asylum and Immigration Tribunal had no power to
prevent this from being done. I asked Mr Mak whether, if it was the
appellant’s position that he had no remedy before the Asylum and
Immigration Tribunal he could have applied for judicial review. Mr Mak
said that he could not have done so, although he was not able to tell me
why this was the case.
- Mr
Mak relied on Chomanga (binding effect of unappealed decisions) Zimbabwe [2011] UKUT 312 (IAC). He argued that had the respondent sought to withdraw
her decision under the current Upper Tribunal procedure rules it would
have been an abuse of process. In reply to my question, he accepted that,
under the current procedure rules, the Upper Tribunal had a discretion as
to whether or not to permit the Secretary of State to withdraw a decision
(specifically to withdraw her case). Mr Mak argued that the
unfairness/abuse of process point also assisted the appellant in relation
to his Article 8 grounds.
- In
relation to the Article 8 grounds, Mr Mak said that the references to the
Immigration Rules in his skeleton were the current ones in effect since
July 2014. He accepted that paragraphs 398 and 399A did not apply but it
was nevertheless important to establish whether the appellant met these
criteria. Mr Mak submitted that he did. It could not be said that there
was a strong public interest in deportation in the light of all the
appellant’s circumstances, the respondent’s actions and the serious delay.
Whilst the delay between the decision of the Court of Appeal and the
rehearing was not the fault of the respondent the respondent could have
but had not pressed the Upper Tribunal to give a hearing date. The
appellant’s solicitors had started chasing the Upper Tribunal in February
2011. He accepted that I needed to apply EB Kosovo principles in relation
to any delay.
- Mr
Mak submitted that the appellant had always observed his bail conditions.
He had not been permitted to work until sometime in the summer of 2014. He
argued that in all the circumstances the appellant had established that
there were very compelling circumstances which outweighed the public
interest in deportation. The public interest had diminished with the
reflection of time (ZZ Tanzania paragraph 28). I was asked to allow the
appeal.
- In
reply Mr Wilding accepted that the abuse of process/unfairness point had
been touched on by Senior Immigration Judge Spencer. The principles set
out in Chomanga were not relevant. He was not suggesting that the
appellant’s son and daughter should go with him to Nigeria. Their mothers could continue to care for them in this country. The Immigration
Directorate Instructions at paragraph 2.5 set out what the respondent
meant by “unduly harsh”. There was no merit in the point that the
Secretary of State should have chased the Upper Tribunal a hearing date.
- I
reserved my determination.
Findings of fact
- The
preserved findings of the first panel set out in paragraph 42 of the
determination of the third panel are;
i.
The appellant has
provided considerable emotional support to his sick daughter (paragraph
13 of that determination).
ii.
The offences
committed “a long time ago” by the appellant in his youth are irrelevant to the
present decision (paragraph 24).
iii.
the appellant has
strong ties in the United Kingdom, he and his family having lived together here
since he was 10 or 11 years old (paragraph 28.
iv.
Despite his
incarceration the appellant has maintained significant telephone contact with
his daughter and would wish, when not detained, to undertake a greater role in
her upbringing (paragraph 30).
v.
The proposed
deportation would render the resumption and development of the appellant’s
relationship with his daughter that would have ordinarily taken place in the United
Kingdom impossible because his daughter could not visit him in Nigeria (paragraph 31).
vi.
The proposed
deportation would severely emotionally effect of the appellant’s daughter and
he has, notwithstanding his incarceration maintained a “close” relationship
with her (paragraph 32).
vii.
That the appellant
is close to his parents and siblings and his deportation would interrupt that
close relationship. They provide him with supportive and positive influences
and his removal will “take him away from that support”.
viii.
Because of the exceptional
and effective family support and more importantly the fact that the
appellant is now willing to accept it the risk of him reoffending is low
(paragraph 36). (The emphasis is taken from the original).
- I
adopt these findings. However, they are findings which were made following
a hearing in May 2007. Whilst correct at that time some of these circumstances
have evolved and changed and there are new factors. Mr Wilding did not
suggest that the appellant or any of the other witnesses were not
credible. I find the appellant and his witnesses to be credible, both
those who gave oral evidence and those who submitted witness statements.
The evidence contained in the statements of those who did not give
evidence is consistent with that of those who did.
- The
appeal history is as I have set out as is the appellant’s immigration
history and that of his family. I make the following additional findings
of fact.
- Having
served his sentence the appellant was in immigration detention until he
was released on bail in May 2010. There have been strict bail conditions
including weekly reporting and living with his parents. He continues to
live with them in south London. He has not been allowed to work until
sometime in the summer of 2014 and is not currently working. It is not
clear whether he has been able to obtain the documentation he needs if he
is to do legitimate work. He is supported by his family. The appellant
says that he would like to work as a personal trainer and to earn in order
to support himself and his children.
- The
appellant has two children by different mothers. His daughter A was born
on 5 March 1998. His son I was born on 20 October 2007. Both were born in
the UK and are British citizens. Each of them lives with her or his mother
and the appellant is no longer in a relationship with either mother.
- The
appellant sees his daughter A as often as he can, usually every other
week. She suffers from sickle cell anaemia and from time to time when she
has to be admitted to hospital he spends a lot of time with her in
hospital including staying there. She is now 16 and has started attending
college. She does not want to socialise with him as much as she once did
but the appellant goes to her house every other week and she comes to his
parents’ house. She lives in Hackney about an hour away by train. Her
mother has two other children, a daughter aged 11 and a son aged nearly 2.
His relationship with her mother broke up before A was born. A has a close
relationship with the appellant’s parents. The appellant speaks to her on
the telephone and they send messages to each other most days. There is a
witness statement from her in which he says that she needs him and does
not want him to be deported. She missed him a great deal when he was away
(in prison) and pleads for him to be allowed to stay. There is a witness
statement from A’s mother which, whilst dated May 2008, confirms the
relevant elements of the appellant’s evidence at that time.
- The
appellant’s son I lives with his mother in Southend but stays with the
appellant and his parents every other weekend and for six weeks in the
summer holidays. His mother has three other children, twins aged five and
a son aged nearly 2. The appellant has been to I’s school and attended
parent teacher meetings. He has a good relationship with his son who sat
through most of the second hearing before me. He enjoys good health. The
appellant speaks to him on the telephone most days. The witness statement
from I’s mother is also dated May 2008 but also confirms the relevant
elements of the appellant’s evidence at that time
- The
oral evidence from the appellant’s parents and brother confirmed the
closeness of the relationship between the appellant and his children, his
evidence as to the extent of contact with them, the duration of the
periods during which they visited or stayed in their home and that they
were close to them. The family living in the same home is the appellant,
his parents, one brother who gave oral evidence and a sister who did not. The
brother K, living in the same home, has a child of his own aged 18 months
who does not live with him. The appellant has two other siblings not
living at home, a brother who lives most of the time with his girlfriend
and a sister who is married and living elsewhere. They are a close family.
The appellant, his mother and other members of his family are in touch
with the mothers of his children and the relationships with them, if not close,
work satisfactorily as do the arrangements for him to see his children.
- The
appellant’s mother said and I accept that if the appellant had to go to Nigeria
the family could not or would not go with him but they would do all they
could to support him. They would send him money but did not think that it
would be enough. They no longer had any family in Nigeria
and the last time she had been there was in 2003. His father was last
there about 18 months ago and hopes to go again. The appellant’s father
came to the UK in 1985 and his mother in 1987. All of the family are
working either full or part-time, apart from the appellant.
- The
appellant’s partner R is a British citizen. She has been in a relationship
with the appellant for about a year having met him a few months before
that. He told her about his criminal record and his appeal against
deportation. She entered into the relationship with her eyes open. She has
a full-time job and lives with her mother, father and two sisters. She has
no children. She said that were it not for the fact that the appellant had
to live at home because of his bail conditions they would be living
together. She wants to share her future with the appellant and has a
loving relationship with his family.
- It
has not been suggested and I accept that the appellant has not been back
to Nigeria since he came to the UK when he was 11.
- The
index offence was the appellant’s conviction on 3 December 2004 for possessing
a class A controlled drug, cocaine, with intent to supply. He was
sentenced to 6 years imprisonment. The previous drug-related conviction
was on 2 July 2001 when
he was convicted on two counts of possessing and three counts of supplying
a class A drug, heroin. He was sentenced to 54 months imprisonment. The
Parole Assessment Report dated April 2007 records that the appellant had
five previous convictions one of which was the earlier drug-related
conviction. He had previous convictions for robbery and a sexual offence
involving a 15-year-old girl. I bear in mind that one of the preserved
findings is that; “The offences committed “a long time ago” by the
appellant in his youth are irrelevant to the present decision”. However, I
consider it relevant to note that the appellant admitted to the probation
officer that he had been involved in supplying drugs for several years.
The probation officer accepted that, despite two adjudications against
him, the appellant’s conduct during his prison sentence had been good and
that he had spent his time productively, being given a position of trust.
The unfairness/abuse of process point.
- In
his Notice under Rule 17 (3) of the Asylum and Immigration Tribunal
(Procedure) Rules 2005 (“the 2005 Procedure Rules”) Senior Immigration
Judge Spencer correctly records, as Mr Mak accepts, that Rule 17(2) of the
2005 Procedure Rules provided that an appeal should be treated as
withdrawn if the respondent notified the Tribunal that the decision to
which the appeal related had been withdrawn. The 2005 Procedure Rules in
force at that time gave the Senior Immigration Judge no discretion in the
matter. Once the respondent withdrew the decision that was the end of the
matter and of the appeal brought by the appellant. If the appellant
considered that this was unfair or an abuse of process then his remedy
would have been to make an application for judicial review. He did not do
so.
- The
later Tribunal Procedure (Upper Tribunal) Rules 2008, which were not in
force at the relevant time, provide that notice of the withdrawal of a
party’s case will not take effect unless the Upper Tribunal consents to
the withdrawal except in relation to an application for permission to
appeal. The fact that a Tribunal might have been in a position to make a
different decision at some time after the decision in this appeal is
nothing to the point. EG and NG does not assist the appellant. The
determination of the first panel was not an unappealed decision of the
Tribunal which was binding on the parties. It could not be an unappealed decision
in circumstances where, in accordance with the 2005 Procedure Rules, the
appeal was correctly treated as having been withdrawn.
- Furthermore,
in her reasons for the decision that there was an error of law in the
determination, Senior Immigration Judge Taylor stated, at paragraphs 17 to
22;
“17. I do not accept that the conduct
of the respondent on 3 October 2007 amounted to an abuse of process for the
following reasons.
18. Firstly, the Immigration Rules
specifically provide for the possibility that the respondent might withdraw his
decision in Rule 17 (2) of the Asylum and Immigration Tribunal (Procedure)
Rules 2005. Where provision is made in the Rules for withdrawal is difficult to
see that a decision to do so is an abuse of process.
19. As we are all aware in this
jurisdiction, withdraws do happen, even at a late stage in the proceedings.
20. The respondent had made a decision
which was based on the wrong premise, namely that the court had recommended
deportation. There was good reason to withdraw, namely that the decision upon
which the appeal was brought was flawed. It cannot be said that the withdrawal
was capricious.
21. Indeed it is not argued that the
original decision was not flawed. The complaint is in the timing. Clearly the
late withdrawal of a decision causes inconvenience, is a waste of time and
resources, and distressing for an appellant who might have been expecting the
appeal to go ahead and for it to be resolved. The respondent should organise
its affairs so that it does not cause inconvenience, not only to the parties,
but to the Tribunal.
22. However the respondent’s conduct
does not amount to abuse.”
- I
find that Senior Immigration Judge Taylor’s decision finally disposed of
the point. However, if I am mistaken and it does not have this effect then
I would adopt her reasoning and reach the same conclusion.
- Paragraph
8 of the agreed Statement of Reasons before the Court of Appeal records
that; “The appellant did not seek to rely on his first ground of appeal
which argued that the respondent’s conduct in relation to the withdrawal
of the deportation order at the first stage reconsideration hearing on 3
October 2007 and the failure to take into account the findings of the
determination of 14 June 2007 when making the deportation order again on 1
May 2008 amounted to an abuse of the process of the Tribunal. In any event
permission to appeal on this ground was refused and the respondent is of
the view that this issue should not be raised before the Tribunal upon
remittal by this Court.”
- I
find that the appellant has not suffered unfairness and that there has
been no abuse of process. Alternatively, the question was resolved by
Senior Immigration Judge Taylor and cannot be reopened. In the further
alternative, the order of the Court of Appeal means that the issue cannot
be raised before me.
Article 8
- Paragraphs
A362, 398, 399 and 399A of the current Immigration Rules provide that;
“Where Article 8 is raised in the
context of deportation under Part 13 of these Rules, the claim under Article 8
will only succeed where the requirements of these rules as at 28 July 2014 are
met, regardless of when the notice of intention to deport or the deportation
order, as appropriate, was served.
A398. These rules apply where:
(a) a foreign criminal liable to
deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a
deportation order made against him to be revoked.
398. Where a person claims that their
deportation would be contrary to the UK's obligations under Article 8 of the
Human Rights Convention, and
(a) the deportation of the person from
the UK is conducive to the public good and in the public interest because they
have been convicted of an offence for which they have been sentenced to a
period of imprisonment of at least 4 years;
(b) the deportation of the person from
the UK is conducive to the public good and in the public interest because they
have been convicted of an offence for which they have been sentenced to a
period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from
the UK is conducive to the public good and in the public interest because, in
the view of the Secretary of State, their offending has caused serious harm or
they are a persistent offender who shows a particular disregard for the law,
the Secretary of State in assessing
that claim will consider whether paragraph 399 or 399A applies and, if it does
not, the public interest in deportation will only be outweighed by other
factors where there are very compelling circumstances over and above those
described in paragraphs 399 and 399A.
399. This paragraph applies where
paragraph 398 (b) or (c) applies if –
(a) the person has a genuine and
subsisting parental relationship with a child under the age of 18 years who is
in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration
decision; and in either case
(a) it would be unduly harsh for the
child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the
child to remain in the UK without the person who is to be deported; or
(b) the person has a genuine and
subsisting relationship with a partner who is in the UK and is a British
Citizen or settled in the UK, and
(i) the relationship was formed at a
time when the person (deportee) was in the UK lawfully and their immigration
status was not precarious; and
(ii) it would be unduly harsh for that
partner to live in the country to which the person is to be deported, because
of compelling circumstances over and above those described in paragraph EX.2.
of Appendix FM; and
(iii) it would be unduly harsh for
that partner to remain in the UK without the person who is to be deported.
399A. This paragraph applies where
paragraph 398(b) or (c) applies if –
(a) the person has been lawfully
resident in the UK for most of his life; and
(b) he is socially and culturally
integrated in the UK; and 8
(c) there would be very significant
obstacles to his integration into the country to which it is proposed he is
deported.
The provisions of the Immigration Act
2014 set out where the public interest lies in paragraphs 117A, 117B, 117C and
117D as follows;
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) In the case of a person who is not
liable to deportation, the public interest does not require the person’s
removal where—
(a) the person has a genuine and subsisting
parental relationship with a qualifying child, and
(b) it would not be reasonable to
expect the child to leave the
United Kingdom.
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 applies where—
(a) C has been lawfully resident in
the United Kingdom for most of C’s life,
(b) C is socially and culturally
integrated in the United Kingdom, and
(c) there would be very significant obstacles
to C’s integration into the country to which C is proposed to be deported.
(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.
(6) In the case of a foreign criminal
who has been sentenced to a period of imprisonment of at least four years, the
public interest requires deportation unless there are very compelling
circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections
(1) to (6) are to be taken into account where a court or tribunal is
considering a decision to deport a foreign criminal only to the extent that the
reason for the decision was the offence or offences for which the criminal has
been convicted.
117D Interpretation of this Part
(1) In this Part—
“Article 8” means Article 8 of the
European Convention on Human Rights;
“qualifying child” means a person who
is under the age of 18 and who—
(a) is a British citizen, or
(b) has lived in the United
Kingdom for a continuous period of seven years or more;
“qualifying partner” means a partner
who—
(a) is a British citizen, or
(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33(2A) of that
Act).
(2) In this Part, “foreign criminal”
means a person—
(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(c) who—
(i) has been sentenced to a period of
imprisonment of at least 12 months,
(ii) has been convicted of an offence
that has caused serious harm, or
(iii) is a persistent offender.
(3) For the purposes of subsection
(2)(b), a person subject to an order under—
(a) section 5 of the Criminal
Procedure (Insanity) Act 1964 (insanity etc),
(b) section 57 of the Criminal
Procedure (Scotland) Act 1995 (insanity etc), or
(c) Article 50A of the Mental Health (Northern Ireland) Order 1986 (insanity etc),
has not been convicted of an offence.
(4) In this Part, references to a
person who has been sentenced to a period of imprisonment of a certain length
of time—
(a) do not include a person who has
received a suspended sentence (unless a court subsequently orders that the
sentence or any part of it (of whatever length) is to take effect);
(b) do not include a person who has
been sentenced to a period of imprisonment of that length of time only by
virtue of being sentenced to consecutive sentences amounting in aggregate to that
length of time;
(c) include a person who is sentenced
to detention, or ordered or directed to be detained, in an institution other
than a prison (including, in particular, a hospital or an institution for young
offenders) for that length of time; and
(d) include a person who is sentenced
to imprisonment or detention, or ordered or directed to be detained, for an indeterminate
period, provided that it may last for at least that length of time.
(5) If any question arises for the
purposes of this Part as to whether a person is a British citizen, it is for
the person asserting that fact to prove it.”
- In
this appeal I find that the appellant has raised Article 8 grounds in the
context of deportation under Part 13 of the Rules with the consequence
that his claim under Article 8 can only succeed where the requirements of
these rules as at 28 July 2014 are met even though the deportation order
was served on him before then (YM (Uganda)). The Rules on deportation
represent a complete code on Article 8 (MF (Nigeria)) and must now be read
in the light of the provisions of the Immigration Act 2014.
- Because
of Paragraph 398(a) the deportation of the appellant is conducive to the
public good and in the public interest because he has been convicted of an
offence for which he has been sentenced to a period of at least four years
imprisonment. I must consider whether paragraphs 399 or 399A apply and if
so whether there are very compelling circumstances over and above those
described in paragraph 399 or 399A which outweighed the public interest in
deportation.
- In
relation to paragraph 399 I find that, even though he does not live with
them, the nature and extent of the appellant’s relationship with his two
children amounts to a genuine and subsisting parental relationship. Both
children are British citizens His daughter was born on 5 March 1998. His
son was born on 20 October 2007. The immigration decision in this appeal
was made on 1 May
2008. His daughter has lived in the UK continuously for at least seven
years immediately preceding the date of the immigration decision but his
son has not. I find that it would be unduly harsh for either child to be
expected to live in Nigeria. Taking into account all my findings of fact
as to the relationship between the appellant and his children I find that
it would not be unduly harsh for them to remain in the UK
without him. I accept that both of them are close to him, neither wants
him to leave and he makes a valuable contribution to both their lives. On
the other hand, there is no reason why their good relationship with his
parents and other members of his family should not continue if he leaves
the UK. The appellant is not their primary carer and both of them live
with their mothers and siblings. His relationships with their mothers have
come to an end and there is no suggestion that either child is likely to
live with him all or most of the time in the future. Some of his
communication with his daughter is by electronic means and that could
continue. He could in the future use similar means for communicating with
his son. I accept that these methods of communication are not as good as
face-to-face contact.
- I
accept that the appellant has a genuine and subsisting relationship with
his partner who is settled and living here and is a British citizen. That
relationship was formed when the appellant was present in the UK
lawfully but his immigration status was undoubtedly precarious and she was
well aware of this. In the circumstances it is not necessary for me to
consider the further requirements of 399(b)(i) or (ii).
- Paragraph
399A does not apply because, having been sentenced to a period of
imprisonment of at least four years, the appellant comes within 398(a),
not 398 (b) or (c).
- Under
the provisions of the Immigration Act 2014 I must consider the provisions of
section 117B which applies in all cases and 117C which applies in cases
concerning the deportation of foreign criminals. In this context; the “public
interest question” means the question of whether an interference with the
appellant’s right to respect for private and family life is justified
under Article 8 (2).
- In
relation to section 117B it is the case that the appellant can speak
English and he has always been in the UK lawfully. As to section 117C he
is a foreign criminal and the deportation of foreign criminals is in the
public interest. Because he has been sentenced to a period of imprisonment
of at least four years the public interest requires deportation unless
there are very compelling circumstances over and above those described in
Exceptions 1 and 2. I find that Exception 1 does not apply because, whilst
the appellant has been lawfully resident in the UK for most of his life
and is socially and culturally integrated in the UK
there would not be very significant obstacles to his integration in Nigeria.
I reach that conclusion because, whilst he has not been there since he was
11 years of age he lived there until then and would have grown up with the
culture, environment and language. Whilst he does not have any close
family in Nigeria his parents have been back to Nigeria and his father
expressed the wish to make another visit. He has been supported by his
family in this country. I accept that they do not want him to go back to Nigeria
but they are prepared to provide him with financial support if he does. I
do not accept that this would be inadequate. He is healthy and would be
returning on his own with the freedom of action that would entail. I do
not accept that he speaks only English and does not speak any of the
languages spoken in Nigeria. His skills in speaking a language common in Nigeria
may be rusty but he would have spoken language used in that country at
least until he was 11. As to Exception 2, whilst I accept that the
appellant has a genuine and subsisting relationship with his partner she
is not a qualifying partner for the reasons I have given. He has a genuine
and subsisting parental relationship with his two children but, again for
the reasons I have given, the effect of his deportation on them would not
be unduly harsh.
- The
appellant was convicted of both possession and dealing in Class A drugs
not once but on two occasions. On the first he was sentenced to 54 months
imprisonment and on the second to 6 years. The seriousness of these
offences is, because of the length of the sentence for the index offence,
at the top end of the scale set out in the Rules. There is a considerable
public interest in his deportation. Furthermore, he admitted to the
probation officer that he had been involved in supplying drugs for several
years. I accept that he had not reoffended since 2004 and that he poses a
low risk of reoffending. He has observed his bail conditions over a long
period. There have been periods of delay for which he has not been
responsible. Indeed, those representing him have pressed for his appeal to
be heard and this has taken longer than it should have done. I do not
accept that there has been unreasonable delay by the respondent or that
the respondent behaved unreasonably in not pressing the Upper Tribunal to
list the appeal for hearing earlier. Whilst the delay has meant that the
appellant has had a longer period of uncertainty and has not been able to
work it has also enabled him to commence, continue or develop his
relationships with his children, partner and family and to enjoy those
relationships.
- I
find that there the appellant cannot bring himself within Exception 1 or
Exception 2. Even if he had been able to do so he has not shown additional
very compelling circumstances.
- I
find that the deportation of the appellant would not be contrary to the UK’s obligations under Article 8 of the Human Rights Convention. There are no very
compelling circumstances in relation to his private and family life which
outweigh the public interest in his deportation.
- I
make an anonymity direction in order to protect the interests of the
appellant’s children. I make an order under rule 14 of the Tribunal
Procedure (Upper Tribunal) Rules 2008 prohibiting the disclosure or
publication of any matter likely to lead members of the public to identify
the appellant, his children, and any other member of his family or anyone
in a relationship with him.
- Previous
decisions in this appeal having been set aside I remake the decision and
dismiss the appellant’s appeal on Article 8 human rights grounds.
……………..………………..........
Upper Tribunal Judge Moulden Date
10 November 2014
