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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> HU046422018 [2019] UKAITUR HU046422018 (19 August 2019)
URL: http://www.bailii.org/uk/cases/UKAITUR/2019/HU046422018.html
Cite as: [2019] UKAITUR HU046422018, [2019] UKAITUR HU46422018

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Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/04642/2018

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House

Decision & Reasons Promulgated

On 9 April 2019

& 30 July 2019

On 19 th August 2019

 

 

Before:

 

UPPER TRIBUNAL JUDGE GILL

 

 

Between

 

 

The Secretary of State for the Home Department

 

Appellant

And

 

 

A S

(ANONYMITY ORDER MADE)

Respondent

 

Anonymity

 

I make an order under r.14(1) 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 original appellant. No report of these proceedings shall directly or indirectly identify him. This direction applies to both the appellant and to the respondent and all other persons. Failure to comply with this direction could lead to contempt of court proceedings.

I make this anonymity direction because the decision refers to the original appellant's minor daughter.

The parties at liberty to apply to discharge this order, with reasons.

 

 

Representation :

For the appellant: Mr D Clarke, Senior Presenting Officer.

For the respondent: Ms C Bayati, of Counsel, instructed by Appleby Shaw Solicitors.

 

DECISION AND REASONS

A. INTRODUCTION

1.          I shall refer to Mr A S hereafter as the "claimant". The claimant is a national of Albania born on 3 July 1984.

2.          The Secretary of State was granted permission to appeal the decision of Judge of the First-tier Tribunal D A Thomas (hereafter the "judge") who allowed the claimant's appeal on human rights grounds (Article 8) against the Secretary of State's decision of 31 January 2018 to refuse his human rights claim [1] of 23 August 2016 in which he relied upon his right to his family life, said to have been established with his partner ("SC") and his daughter ("SS") by SC born on 26 May 2016, and his right to his private life in the United Kingdom. In the same decision letter, the Secretary of State also refused to revoke (or purported to refuse to revoke) a deportation order made against the claimant on 8 January 2010.

3.          The Secretary of State's appeal was heard in the Upper Tribunal on 22 January 2019 before Lord Beckett sitting as an Upper Tribunal Judge and Upper Tribunal Judge Gill (hereafter the "panel"). At the hearing on 22 January 2019 (the "EOL hearing"), the Secretary of State was represented by Mr D Clarke and the claimant was represented by Mr A Metzer QC.

4.          By a decision (with directions) sent to the parties on 25 January 2019 (hereafter the "EOL decision"), the panel set aside the decision of Judge Thomas. The reasons for the decision and the directions given by the panel are set out in the EOL decision and summarised below.

5.          The "resumed hearing", in order to re-make the decision on the claimant's appeal against the respondent's decision of 31 January 2018, was first listed before me on 9 April 2019. On that date, I heard oral evidence from three witnesses, summarised below. The hearing was adjourned part-heard and re-listed to be heard on 30 July 2019.

6.          In her skeleton argument for the hearing on 9 April 2019 (the " April 2019 skeleton argument"), Ms Bayati raised new issues on the claimant's behalf, for the first time. Following the adjournment on 9 April 2019, the claimant made an application, on 10 June 2019, for permission to raise an additional ground of appeal (in fact there was more than one ground) which included an issue as to jurisdiction and, in the alternative, legality of the decision. In a nutshell, the submission is that there was no power in law to make the deportation order and therefore the decision to refuse to revoke the deportation order was a nullity. There was therefore no jurisdiction for the Upper Tribunal to hear this appeal.

7.          In the April 2019 skeleton argument and in her skeleton argument for the hearing on 30 July 2019 (the "July 2019 skeleton argument"), Ms Bayati also contended that, in the event that I decided that there was an appeal before the Upper Tribunal, s.117C of the Nationality, Immigration and Asylum Act 2002 (the "2002 Act") and paras 362-399A of the Immigration Rules do not apply to the assessment of the claimant's human rights claim, although she accepted that the claimant satisfied the definition of "foreign criminal" in s.117D(2).

8.          Accordingly, Ms Bayati contended that s.117A-B of the 2002 Act and para 276ADE, Appendix FM and Exception EX.1. of Appendix FM in the Immigration Rules apply instead in assessing the claimant's human rights claim. This argument was not raised before Judge Thomas or before the panel at the EOL hearing.

9.          In the event that I decided that s.117C of the 2002 Act and paras 362-399A of the Immigration Rules apply, the issues between the parties are as follows:

(i) whether the requirement in para 399(b)(i) of the Immigration Rules, that the relationship between a deportee and his or her partner must have been formed at a time when the deportee was in the United Kingdom lawfully, applies so as to preclude the claimant from relying upon s.117C(5) of the 2002 Act notwithstanding that s.117C(5) makes no mention of the requirement.

(ii) whether it is unduly harsh for SS and (if the claimant is not precluded from relying on s.117C(5)) for SC to live in the United Kingdom without the claimant.

Mr Clarke said that he accepted that it would be unduly harsh to expect SC and SS to live in Albania.

(iii) if the answers to questions (i) and (ii) are 'No', then whether there are very compelling circumstances over and above those described in paras 399 and 399A or the exceptions mentioned in s.117C(5) of the 2002 Act.

10.       In the event that I decided that s.117C of the 2002 Act and paras 362-399A of the Immigration Rules do not apply, Mr Clarke conceded, in view of the findings of fact that were preserved in the EOL decision, that the claimant has a genuine and subsisting parental relationship with SS who is a qualifying child and that it would not be reasonable to expect SS to leave the United Kingdom. In such event, the claimant's appeal would be allowed with reference to.117B(6) of the 2002 Act and para 399(a).

11.       At the hearing on 9 April 2019 and on 30 July 2019, I made it clear to the parties that I would hear submissions on the application for permission to raise additional grounds of appeal de bene esse.

12.       Annex A to this decision sets out ss.117A-D of the 2002 Act, the Immigration Rules relating to deportation and the Immigration Rules relating to non-deportation cases. Annex B is the EOL decision.

 

B. BACKGROUND

13.       The claimant first arrived in the United Kingdom on 15 July 2005. He claimed asylum on 21 July 2005 in a false name and falsely claiming that his date of birth was 1 July 1989. He was in fact already 21 years old on arrival. His asylum claim was refused. Believing him to be a minor, the Secretary of State granted the claimant discretionary leave to remain (DLR) until 9 September 2006.

14.       On 12 September 2006, the claimant made an application to extend his leave. However, on 17 October 2006, he was sentenced to 12 months' Detention and Training Order ("DTO") following his conviction at Channel Juvenile Court of an offence of possession of a false instrument.

15.       On 15 March 2007 (hereafter the "March 2007 decision"), the claimant was notified of the Secretary of State's decision to make a deportation order against him. This decision conferred a right of appeal which the claimant duly exercised (appeal reference: IA/04663/2007).

16.       The claimant in appeal number: IA/04663/2007 is BS with a date of birth of 1 July 1989. The claimant's appeal was first listed for hearing in the Asylum and Immigration Tribunal ("AIT") on 2 May 2007 but adjourned on 30 April 2007. It was then re-listed to be heard on 18 May 2007.

17.       The decision letter dated 31 January 2018 states that the claimant withdrew his appeal on 21 May 2007, which the claimant disputes. The claimant contends that the Secretary of State withdrew the decision at the hearing on 18 May 2007. This is relevant to the jurisdiction/legality issue.

18.       The claimant was released from the DTO on 17 March 2007. On 18 January 2008, he was listed as an absconder. On 1 December 2009, the Dutch authorities informed the Home Office that the claimant was being held in prison in the Netherlands until January 2010 following his conviction for using a false passport in respect of which he received a sentence of 14 months' imprisonment.

19.       On 8 January 2010, the claimant returned to the United Kingdom and was detained. On the same date, the deportation order was signed.

20.       The chronology in the decision letter dated 31 January 2018 states that the claimant was deported to Albania on 10 February 2010 although the claimant states that he returned to Albania voluntarily.

21.       In his application of 23 August 2016 for leave to remain on the basis of his rights under Article 8, the claimant admitted that he re-entered the United Kingdom illegally in July 2010.

22.       The claimant met SC in July 2011. They started living together in July 2013.

 

C. THE EOL DECISION

23.       The EOL decision may be summarised as follows:

(i) The panel concluded (ground 1), and as was conceded on the claimant's behalf, that the judge had erred in law in failing to treat the claimant as a "foreign criminal" as defined in s.117D(2) of the 2002 Act.

(ii) The panel concluded that the error was material as it was clear that the judge had considered the claimant's Article 8 claim in a freestanding way (para 43 of the EOL decision) wholly uninformed by the weight that is accorded to the public interest in deportation by the creation of the scheme in paras 398, 399 and 399A of the Immigration Rules which provided for the two exceptions in para 399 and para 399A and the proviso in para 398 of the Immigration Rules (para 45 of the EOL decision).

(iii) In addition (ground 2), the judge had materially erred in law by failing to give adequate reasons for her finding that family life could not continue in Albania (paras 52-53 of the EOL decision).

(iv) Finally, the judge had erred in law by taking into account in the claimant's favour the fact that he can speak English, as this was a neutral factor pursuant to Rhuppiah [2016] EWCA Civ 803. The panel considered that, whilst this error may not have been material to the outcome, it added to the already determinative case for setting aside the judge's decision (para 55 of the EOL decision).

24.       The panel directed that the decision on the claimant's appeal be re-made in the Upper Tribunal and further issued the following directions (para 58 of the EOL decision):

(i) The judge's summary of the evidence she heard at paras 5-9 of her decision to stand as a record of the evidence given to the First-tier Tribunal (the "FtT").

(ii) The following findings to stand, as Mr Metzer had submitted:

a) at para 23, that the claimant has a genuine and subsisting relationship with SC and SS; and

b) at para 24, the findings made by the judge as follows:

"... Despite her age, [SS] will be familiar with [the claimant] as her father. She has a real relationship with her maternal grandparents who are settled in the UK. As a British citizen she is entitled to the benefits and entitlements of her nationality. Her best interests are served with her remaining in the care of both parents in the UK".

 

D. THE APPLICATION FOR PERMISSION TO AMEND THE GROUNDS OF APPEAL

(i) Evidence before me concerning the "withdrawal"

25.       As stated above, the decision letter dated 31 January 2018 states that the claimant withdrew his appeal against the March 2007 decision which the claimant disputes. In this regard:

(i) Para 6 of the claimant's skeleton argument dated 12 August 2018, from Mr S Muquit, of Counsel, that was before Judge Thomas stated that it was not clear what had happened to the claimant's appeal of 2007 and that evidence disclosed as part of a "Freedom of Information" ("FOI") request suggests that "no final outcome was entered on CID ".

(ii) Para 2 of the April 2019 skeleton argument states that the claimant claimed that his appeal was successful, that there was no determination or notice from the AIT and that the minutes of the Home Office in this regard were unclear and inconsistent, it being stated in one minute that the appeal was withdrawn by the claimant and in another that it was accepted that he was a minor.

(iii) By two emails of the same date (3 April 2019), the claimant's representatives (Appleby Shaw Solicitors) requested the FtT for a copy of the determination in the claimant's appeal. No such determination had been received by the date of the hearing before me on 9 April 2019. Following the adjournment of that hearing, Appleby Shaw Solicitors sent to the Upper Tribunal by email dated 17 April 2019 the following documents:

(a) The manuscript Record of Proceedings of Immigration Judge Mayall dated 18 May 2007 which states:

"H.O. wdrew the decision.

Decision withdrawn"

(b) A "Notice of Decision" under document reference AIT70 (the "AIT70 Notice"). This is a pro-forma document with various options. The following boxes were ticked:

The Appellant has withdrawn the appeal by notice

Orally before the Tribunal on 18 May, 2007

The Respondent has withdrawn the original decision(s)

26.       At para 13 of her July 2019 skeleton argument, Ms Bayati submits that the AIT70 Notice shows that the claimant withdrew his appeal orally because the Secretary of State had withdrawn his decision.

(ii) The jurisdiction/legality issue - the parties' submissions

27.       The claimant's case on the jurisdiction or legality issue may be summarised as follows:

28.       The March 2007 decision was a decision to make a deportation order under s.3(5)(a) of the Immigration Act 1971 (the "1971 Act") on the ground that the claimant's deportation was conducive to the public good. The claimant had a right of appeal pursuant to s.82(1)(j) of the 2002 Act as it was then in force. The claimant exercised his right of appeal. The Secretary of State could only proceed to issue a deportation order if the March 2007 decision was either upheld on appeal or not appealed.

29.       The effect of the withdrawal by the Secretary of State of the March 2007 decision was that there was no power to make the deportation order. The deportation order dated 8 January 2010 was therefore a nullity. Since it was a nullity, there was no need to set it aside or to quash it. Given that the deportation order was a nullity, the refusal to revoke the deportation order was also a nullity. In this regard, Ms Bayati relied upon paras 33-43 of the decision of Jeremy Baker J in R (Pryor) v SSHD [2013] EWHC 2853 and paras 93-94 of the decision of Hayden J in R (Sino) v SSHD [2015] EWHC 1831.

30.       Furthermore, the refusal of the claimant's human rights claim was also a nullity for the following reasons:

(i) As there was only one decision made on 31 January 2018 and as the decision to refuse to revoke the deportation order was a nullity, the refusal of the claimant's human rights claim was also a nullity.

(ii) In the alternative, the refusal of the claimant's human rights claim was a nullity because it was inextricably tied up with the refusal to revoke the deportation order so that they stand or fall together. His human rights claim was considered on the basis that he was the subject of deportation action and a foreign criminal. Both the starting point and the end point of the Secretary of State's consideration of the claimant's Article 8 claim were incorrect. The entire assessment of the claimant's human rights claim was made on the basis that it was conducive to the public good to deport him and was therefore fundamentally flawed and a nullity.

(iii) In the further alternative, the human rights decision was unlawful or perverse because the assessment of proportionality was based on the claimant's case being one which concerned revocation of a deportation order.

31.       There was therefore no appeal before the FtT or the Upper Tribunal.

32.       The fact that the jurisdiction issue was being raised late was not a bar because the Upper Tribunal either has jurisdiction or it does not. It was therefore irrelevant that the claimant was taking issue with the legality of the deportation order 9 years after it was made.

33.       In the alternative, the decision to refuse to revoke the deportation order was unlawful. This is because the March 2007 decision was withdrawn and therefore the deportation order was unlawful. An unlawful decision is a valid decision until set aside, whereas a decision that is a nullity has no legal effect.

34.       Any issue as to timeliness in relation to the submission that the refusal to revoke the deportation order was unlawful should not be held against the claimant for the following reasons: Until 16 April 2019, the claimant did not know the outcome of the hearing before Judge Mayall on 18 May 2007. Ms Bayati submitted that it only became clear in April 2019 that the deportation order made in 2010 was defective. in any event, he was in detention in 2010 and then subsequently removed.

35.       At paras 9-11 of her July 2019 skeleton argument, Ms Bayati accepts that the Upper Tribunal has no power to allow an appeal on the ground that the decision is not in accordance with the law. However, she submits that the question whether a decision is in accordance with the law is highly relevant to the claimant's human rights claim under Article 8.

36.       In response, Mr Clarke submitted that the distinction sought to be made between a decision that is a nullity and an unlawful decision was wrong. The July 2019 skeleton argument contends that the decision dated 31 January 2018 was a nullity because it was unlawful under the 1971 Act. He submitted that the claimant was requesting me to set aside two decisions, i.e. the deportation order and the refusal of the claimant's human rights claim in the decision letter dated 31 January 2018. He referred me to the Court of Appeal's decision in MS (Pakistan) [2018] EWCA Civ 594 which considered whether an indirect challenge could be made on an appeal to the legality of a "Conclusive Grounds" decision by the Competent Authority which did not attract a right of appeal but which could only be challenged by judicial review proceedings. He submitted that it was not open to me to declare the deportation order and/or the refusal to revoke the deportation order a nullity.

37.       Although Mr Clarke accepted that it was necessary for there to be a lawful decision to make a deportation order in order for there to be a lawful deportation order, he submitted that, pursuant to MS (Pakistan), it was not possible for me to go behind or "step around" the deportation order or the refusal to revoke the deportation order unless the claimant is able to show that the decision in question was perverse or irrational. In this regard, he drew my attention to the fact that, when the claimant was returned to the United Kingdom in January 2010, a new factual matrix arose. His true date of birth was known then, whereas he was assumed to be a child at the date when the March 2007 was said to have been withdrawn. As at the date of the hearing before Judge Mayall in May 2007, he was 18 years old on his assumed date of birth and therefore would not have qualified for a deportation order under the UK Borders Act 2007 which came into effect five months later. By January 2010, he was recognised to be an adult. Mr Clarke submitted that the claimant should not be allowed to benefit from the lies he told about his identity and his date of birth.

38.       In response, Ms Bayati submitted that the reason why the Secretary of State withdrew the March 2007 decision was irrelevant. The fact of the withdrawal meant that there was no power in law to issue a deportation order. She submitted that, in any event, it was not known why the Secretary of State withdrew the March 2007 decision.

(iii) The jurisdiction/legality issue - assessment

39.       The relevant parts of the decision letter dated 31 January 2018 are as follows:

(i) The decision letter begins as follows:

"Home Office

Notice of decision

In compliance with the Immigration (Notices) Regulations 2003 made under section 105 of the Nationality, Immigration and Asylum Act 2002

...

Thank you for your letter of 5 August 2016 in which you made further submissions about your deportation from the UK in which you claim that your deportation would breach the UK's obligations under the European Convention on Human Rights (ECHR)."

(ii) There is then a heading entitled "Article 8 ECHR" the first paragraph of which quotes in full the content of Article 8. The next paragraph then reads:

"The Immigration Rules at paragraph A362 and paragraphs A398 to 399D set out the practice to be followed by officials acting on behalf of the Secretary of State when considering an Article 8 claim from a person liable to deportation on the basis of criminal convictions. These rules reflect Parliament's view of what the public interest requires for the purposes of Article 8(2). Parliament's view is set out at sections 117A to 117D in Part 5A of the Nationality, Immigration and Asylum Act 2002 (as inserted by the Immigration Act 2014)."

(iii) The Secretary of State then considered the claimant's family life claim followed by his private life claim and whether there were very compelling circumstances over and above those described in paras 399 and 399A. Paras 390 and 390A were then considered, following which there is this paragraph in the decision letter:

"Decision

Your further submissions have been fully considered but I have concluded for the reasons explained above that you do not qualify for leave to enter or remain in the UK on any basis.

I have further concluded for the reasons explained above that there are no grounds on which to revoke your deportation order."

40.       Ms Bayati did not contend that the decision letter dated 31 January 2018 did not refuse the claimant's human rights claim. In essence, she submits that the decision letter dated 31 January 2018 was one single indivisible decision that did two things, i.e. refused to revoke the deportation order and refused the claimant's human rights claim. Since it was indivisible (in her submission), the two aspects of the decision stand or fall together in her submission.

41.       In my view, it is plain from the decision letter dated 31 January 2018 that the main part of the decision letter comprised of the refusal of the claimant's human rights claim. It is clear from the very beginning of the letter that the Secretary of State was addressing the claimant's human rights claim and that, having reached the conclusion that there would be no breach of the claimant's human rights claim, the decision was made to refuse to revoke the deportation order. Thus, if Ms Bayati is correct, that the decision letter was one indivisible decision such that the two aspects of it stand or fall together, I would have concluded that this was principally a decision to refuse the claimant's human rights claim and that the decision to refuse to revoke the deportation order was made because it was decided that the claimant's human rights claim fell for refusal.

42.       However, I do not accept that the decision was one indivisible decision. In my judgement, it is clear that there were two decisions; namely, a decision to refuse the claimant's human rights claim of 23 August 2016 and a decision to refuse to revoke the deportation order made on 8 January 2010.

43.       I take support from the fact that a similar situation arose in Smith (appealable decisions; PTA requirements; anonymity) [2019] UKUT 216 (IAC) (Lane J as President, Upper Tribunal Judge Gill and Upper Tribunal Judge Finch). The decision letter in that case comprised of two separate decisions; namely, a decision to refuse to revoke a deportation order and a decision to refuse the claimant's human rights claim (para 39). The Upper Tribunal decided that the claimant in that appeal was entitled, through the mechanism of the human rights appeal, to contend that his removal would violate Article 8 although he had no in-country right of appeal against the refusal to revoke the deportation order

44.       In her submissions, Ms Bayati stressed the fact that only one decision was issued. I cannot see why it should make a difference whether the refusal of the claimant's human rights claim and the refusal to revoke the deportation order were notified in separate decision letters or in the same decision letter. To the contrary, it makes sense for the two decisions to be notified in the same decision letter in view of the fact that the refusal to revoke the deportation order followed from the Secretary of State's consideration of the claimant's circumstances and the decision to refuse his human rights claim.

45.       I do not accept that the two decisions in the instant appeal are so inextricably linked that they stand or fall together. It is true that the decision to refuse to revoke the deportation order was taken because of the negative conclusion on the claimant's human rights claim. They were therefore linked in that sense. However, the alleged illegality in the decision to refuse to revoke the deportation order arises because it is said that there was no lawful deportation order. I can see no reason in law why any such defect in the refusal to revoke the deportation order should be regarded as fatally 'infecting' the refusal of the human rights claim.

46.       Ms Bayati's fallback submission was that the human rights decision was unlawful or perverse because the assessment of proportionality was based on the claimant's case being one which concerned the revocation of a deportation order. In other words, it is submitted that the fact that the Secretary of State considered the human rights claim against the wrong framework in assessing proportionality, that is, by applying s.117C as opposed to s.117B of the 2002 Act, has the effect that the refusal of the human rights claim is unlawful or perverse. This submission ignores the fact that the Upper Tribunal is bound to assess proportionality for itself when re-making the decision on the claimant's appeal. It is simply not open to the Upper Tribunal to decide a statutory appeal by declaring that the decision to refuse the human rights claim was unlawful or perverse because the proportionality assessment by the Secretary of State was incorrectly made against the framework in s.117C.

47.       The Tribunal's jurisdiction is founded upon whether there was a refusal of a human rights claim that has not been certified or refused under para 353 of the Immigration Rules and whether an appeal has been brought on human rights grounds. Section 86 of the 2002 Act provides:

86 Determination of appeal

(1) This section applies on an appeal under section 82(1).

(2) The Tribunal must determine-”

(a) any matter raised as a ground of appeal, and

(b) ...

48.       As the decision letter dated 31 January 2018 did not certify the claimant's human rights claim and his claim was not refused under para 353 of the Immigration Rules, the claimant had a right of appeal. He exercised that right of appeal. He did bring an appeal on human rights grounds. Ms Bayati's application for permission to amend the grounds of appeal did not withdraw the human rights ground of appeal. The Tribunal must therefore determine his human rights claim as mandated by s.86(2)(a).

49.       There is therefore an appeal before the Upper Tribunal on human rights grounds. The Tribunal therefore has jurisdiction, for all of the reasons given above.

50.       The Tribunal has jurisdiction whether or not the deportation order was a nullity or unlawful or perverse or irrational and whether or not the refusal to revoke the deportation order was a nullity or unlawful or perverse or irrational. There is therefore no need to decide these issues or whether there was power in law to make the deportation order decision of 8 January 2010 in order to decide the jurisdiction issue. I have therefore not found it necessary to deal with the decisions in Pryor or Sino or MS (Pakistan) although I have read and considered them.

51.       This is a convenient point at which to deal with Ms Bayati's submission that, although the Tribunal has no power to allow an appeal on the ground that the decision is not in accordance with the law, this remains highly relevant to the claimant's human rights claim. Ms Bayati did not develop this submission further. It is clear, however, that Ms Bayati's submission concerns the legality of the refusal to revoke the deportation order.

52.       This submission relates to the third step of the five-step approach explained by Lord Bingham at para 17 of R (Razgar) v SSHD [2004] UKHL 27, i.e. that any interference must be in accordance with the law. However, whilst Ms Bayati's submission concerns the refusal to revoke the deportation order, the third step of the five-step approach in Razgar concerns the decision to refuse the claimant's human rights claim. In view of my decision that the two are separate decisions, I am satisfied that the interference is in accordance with the law for the purposes of the third step.

53.       I have not found it necessary to take into account whether the Secretary of State withdrew the March 2007 decision or whether the claimant withdrew his appeal for reasons that were not related to the Secretary of State's withdrawal. However, for the sake of completeness, I should say that the evidence is that it was the Secretary of State who withdrew the decision and that the claimant then withdrew his appeal because the Secretary of State had withdrawn his decision. My reasons are as follows:

(i) The evidence concerning the Secretary of State's reasons for withdrawing the decision is not clear. There is some inconsistency. The evidence produced as a result of the FOI request suggests, on the one hand, that it may have been due to the fact that the Secretary of State mistakenly considered that the claimant was a minor.

(ii) However, there is also evidence which suggests that, in view of the fact that the claimant had not re-offended since the offence for which he received a DTO, it was not considered that the Secretary of State would be successful in the appeal.

(iii) Importantly, the AIT70 Notice specifically refers to the Secretary of State having withdrawn the original decision and Judge Mayall's Record of the proceedings states that the decision was withdrawn.

(iv) The applicable framework - the parties' submissions

54.       The next issue raised in the application for permission to amend the grounds is whether the applicable framework for assessing proportionality is that which relates to deportation and revocation of deportation (that is, s.117C of the 2002 Act and paras 362-399A of the Immigration Rules) or that which relates to non-deportation cases (that is, s.117A-B of the 2002 Act and paras 276ADE, Appendix FM and EX.1 of Appendix FM of the Immigration Rules).

55.       Section 117A(2) and s.117C(7) of the 2002 Act provide as follows:

S.117A:

(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.

S.117C:

(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.

( My emphasis)

56.       The claimant's case may be summarised as follows:

(i) Ms Bayati accepted that the claimant satisfied the definition of "foreign criminal " in s.117D(2).

(ii) However, given that the deportation order was a nullity, this is not a case "concerning the deportation" of a foreign criminal. Since s.117A(2)(b) only requires s.117C to be considered " in cases concerning the deportation of foreign criminals", s.117C does not apply.

(iii) Furthermore, there is no " decision to deport" within the meaning of s.117C(7).

57.       Mr Clarke submitted that, given that the appeal before the Upper Tribunal was an appeal against a decision to refuse a human rights claim, the question whether the case concerns deportation falls to be considered only when the Upper Tribunal is considering proportionality. He submitted that s.117C does apply because the claimant's human rights claim does "concern deportation", pursuant to s.117A(2)(b). In his submission, there was a " decision to deport" within s.117C(7).

(v) The applicable framework - assessment

58.       It can be seen from para 55(ii) above that the claimant's case is drawn from Ms Bayati's submission that the deportation order is a nullity.

59.       The Upper Tribunal no longer has the power to declare that a decision is a nullity or that it is invalid. In my judgment, it would undermine Parliament's decision to remove that power and the related ground of appeal (by the amendments made to ss.82-86 of the 2002 Act by the Immigration Act 2014) if it were open to a claimant to argue, in the context of a human rights appeal, that a decision to deport him or a refusal to revoke a deportation order was a nullity or unlawful. Any such challenge must be brought elsewhere. Until and unless the deportation order and/or the refusal to revoke it are declared a nullity or quashed, the instant case is a case that "concerns deportation" for the purposes of s.117A(2)(b). There is a decision to deport for the purposes of s.117C(7). There is simply no mechanism by which the Tribunal can step around the fact that there is in place a deportation order and a refusal to revoke it.

60.       I have therefore concluded that the correct legal framework is that which applies by virtue of s.117A(2)(b), that is, s.117C applies as well as paras 362-399A of the Immigration Rules apply.

61.       Having dealt with all of the issues raised in the application for permission to amend the grounds, I now step back to consider whether to grant the application for permission to amend the grounds of appeal. In doing so, I take into account that I have rejected all of Ms Bayati's submissions for reasons which I have given above. I also take into account the following:

(i) As I have said, the proper avenue for bringing any challenge to the legality of the deportation order and the refusal to revoke the deportation order was by bringing a judicial review claim. However, any such judicial review claim would now be seriously out of time. Over 9 years have elapsed since the deportation order was made and over 1 1/2 years since the decision to refuse to revoke the deportation order.

(ii) At one stage, Ms Bayati referred me to paras 6-7 of the skeleton argument that was before Judge Thomas. In my judgment, paras 6-7 did not make any legality argument, much less an argument that the FtT did not have jurisdiction. Paras 6-7 of the skeleton argument before Judge Thomas raised various facts under a heading called "material facts" without advancing any legal points on the basis of the facts. The claimant's response dated 14 January 2019, which was settled by Mr Metzer, under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 did not raise any jurisdiction or legality arguments, nor did Mr Metzer raise any such arguments at the EOL hearing on 22 January 2019.

(iii) There has therefore been a very serious delay indeed in bringing the jurisdiction and legality arguments.

(iv) Ms Bayati submitted that any issue as to timeliness should not be held against the claimant. She submitted that the claimant did not know the outcome of the appeal before Judge Mayall until 16 April 2019 and that, in any event, he was in detention in 2010 and then subsequently removed.

(v) However, the fact is that the claimant was represented by Dexter Montague & Partners at the time of his appeal before Judge Mayall. Furthermore, the AIT70 Notice was sent to him at the address that was held on the records and to Dexter Montague & Partners. I do not accept the submission at para 2 of the April 2019 skeleton argument that there was no determination or notice from the AIT of the appeal in 2007. The AIT70 Notice was plainly sent to both the claimant and his representatives. It is most unlikely that both went missing. If the claimant did not know that the appeal before Judge Mayall had been concluded, it begs the question why he has not enquired about the appeal in the years since May 2007. Not only was he was represented then, he has had access to legal representation since notwithstanding that he was in detention and subsequently removed. He re-entered the United Kingdom illegally in July 2010. No explanation has been given why he waited until April 2019 before taking steps to obtain documentation from the FtT in an effort to confirm what had happened to his appeal in 2007.

62.       In all of the circumstances, and for all of the reasons given above, I refuse to exercise my discretion to grant the application for permission to amend the grounds of appeal so as to add additional grounds.

 

E. RE-MAKING OF THE DECISION ON THE CLAIMANT'S APPEAL

63.       On 9 April 2019, I heard oral evidence from the claimant, SC and SC's father, Mr NC. Their oral evidence is set out at Annex B to this decision. Although I summarise their evidence in this part of the decision, I stress that I have taken into account all of their oral and written evidence as well as all of the other documents that have been served. I have taken into account the other witness statements and letters, including the witness statement of NC's wife, the claimant's brother, the witness statements and letters at 14-18 and 87-89 of bundle A, medical evidence relating to SC, the psychology report dated 27 July 2018 of Mr Roy Shuttleworth (pages 19-24 of bundle A) and the many photographs handed to me at the hearing on 9 April 2019.

64.       I have taken into account the summary of Judge Thomas of the oral evidence that was before her, at paras 5-9 of her decision. I remind myself that the EOL decision preserved the following findings of fact:

a) at para 23, that the claimant has a genuine and subsisting relationship with SC and SS; and

b) at para 24, the findings made by the judge as follows:

"... Despite her age, [SS] will be familiar with [the claimant] as her father. She has a real relationship with her maternal grandparents who are settled in the UK. As a British citizen she is entitled to the benefits and entitlements of her nationality. Her best interests are served with her remaining in the care of both parents in the UK".

65.       At the hearing on 30 July 2019, Mr Clarke informed me that the Home Office file had not reached him and therefore he had not had an opportunity to refresh his memory on the oral evidence that was heard on 9 April 2019. I provided Mr Clarke with a copy of my typed notes of the claimant's oral evidence. Ms Bayati agreed that it would be appropriate for me to read to Mr Clarke from my hand-written notes of the oral evidence of SC and NC so that he could participate in the hearing of the Article 8 appeal.

66.       I have decided that s.117C of the 2002 Act as well as paras 362-399A of the Immigration Rules apply. The issue is whether the claimant comes within one of the exceptions to deportation and, if he does not, whether there are very compelling circumstances over and above those described in paras 399 and 399A so that the public interest in his deportation is outweighed. The standard of proof is the balance of probabilities. I have taken into account the relevant case-law, including but not limited to Razgar, ZH (Tanzania) v SSHD [2011] UKSC 4 as to the best interests of a child being a primary consideration and Beoku-Betts [2008] UKHL 39 as to the need to take into account the human rights of those with whom a claimant enjoys family life.

67.       At the hearing on 9 April 2019, Ms Bayati informed me that she did not rely upon the private life exception and that her real focus was on whether it would be unduly harsh for SS if the claimant were to be removed. At the hearing on 30 July 2019, she asked me to take into account the claimant's private life exception, the family life-partner exception, the family life-child exception together with the historic nature of the claimant's offence and the fact that he has not re-offended in the event that it is necessary for me to decide whether there are very compelling circumstances over and above those described in paras 399 and 399A.

68.       Notwithstanding that Ms Bayati only relied upon the claimant's private life claim if it became necessary for me to decide whether there are very compelling circumstances over and above those described in paras 399 and 399A, I shall follow a structured approach, by considering, first, whether any of the exceptions apply and, if not, whether there are very compelling circumstances over and above those described in paras 399 and 399A. This approach reveals the extent to which the relevant criteria in each exception is satisfied or is not satisfied. This is relevant in considering the public interest in deportation when assessing whether there are very compelling circumstances over and above those described in paras 399 and 399A if that question is reached.


(i) Oral evidence heard on 9 April 2019

The claimant's oral evidence

69.       The claimant recalled making his statement dated 9 August 2018 (pages 1-5 of bundle A) and his statement dated 8 April 2019 (pages 1-2 of bundle B). He wished to delete the incomplete sentence at the top of his second page of his statement dated 8 April 2019. With this correction, the contents of his statements were true and correct to the best of his recollection.

70.       Six of the large number of photographs that had been submitted were shown to the claimant. He identified his daughter, his daughter's friend and three cousins.

71.       In cross-examination, the claimant said that, if he is allowed to remain in the United Kingdom, he would undertake employment as a builder. He has experience in brick-laying. His wife would then stay at home and look after their daughter. He would be able to earn as much as his wife currently earns, i.e. £2,000 a month, as a bricklayer.

72.       The claimant would not be able to work as a bricklayer in Albania because such jobs are not available. The maximum pay is £3.00-£3.50 a day. The claimant was referred to the evidence at pages 71-77 of bundle A which provided some evidence about the rate of unemployment in Albania and pages 71-77 of bundle A which provided a table comparing the gross domestic product ("GDP") of Albania and the United Kingdom. Asked why there was no evidence to support his claim that he could only earn £3 a day as a bricklayer in Albania, he said that payslips are not provided by employers in Albania. It is not possible to obtain evidence of how much builders and bricklayers earn in Albania.

73.       Asked whether job advertisements in Albania indicate what pay is offered, the claimant said that potential workers are told what they would be paid when they turn up to ask for the jobs.

74.       The claimant has not made any enquiries about the availability of employment for him in Albania. However, he knows how much he would earn because his uncle in Albania works in the building trade. His uncle is a bricklayer in Albania. Asked whether his uncle could have provided him with evidence to confirm how much he would earn as a bricklayer in Albania, the claimant said that the evidence he had given to the Tribunal was what his uncle had told him.

75.       Asked whether his uncle could introduce him to employers who could offer him work in Albania, the claimant said he did not think so. It is hard to get jobs in Albania.

76.       The claimant's uncle is old, being 60 years old. He has a wife and a son who is 33 or 34 years old and who lives with him. He also has three daughters who are married. They all live in his uncle's house. He could not live with his uncle because there is not enough space. His uncle has always worked as a bricklayer. Asked whether this means that his uncle was able to raise four children on his earnings as a bricklayer, the claimant said that his uncle used to farm and work as a bricklayer in a village before he moved to the city where his children grew up and where he worked as a bricklayer.

77.       SC's parents live about 10 minutes away from his home. The claimant has a brother who lives in Reading in the United Kingdom. His brother has children. He confirmed his evidence in first witness statement, that his brother and his family have been his bedrock during the hard times that he and his wife have experienced. He sees his brother's family once a week. He takes his daughter with him to visit them.

78.       Asked whether there was any reason to think that his brother and his brother's family would not continue to provide support to his wife and daughter if he were to return to Albania, the claimant said that it would be different if he was not around, although they would continue to provide support. Asked how it would be different, he said that he would not be in the United Kingdom to see his brother once or twice a week and it would be difficult for his brother to visit SC and SS. He confirmed that his brother and his family would support SC and help her if he was not in the United Kingdom. Once he leaves the United Kingdom, the family will feel different because he will not be present.

79.       SC's parents help the claimant and SC financially, if they are stuck. However, they have their own lives. At the moment, they are not providing any financial help. They only do so if the claimant and SC are really in need of something. Para 8 of the decision of Judge Thomas stated that SC's parents help the claimant and SC financially if needed. Asked whether they would continue to do if the claimant returned to Albania, he said that they would not, not even until he was able to support himself in Albania. If he leaves the United Kingdom, SC would have to stop work. She would therefore require a lot of financial assistance.

80.       The claimant confirmed that his mother and sister are in Albania. In addition, he had his uncle who he had mentioned earlier.

81.       Asked why he would not be able to stay with his mother temporarily if he returned to Albania given that he had stayed with his mother on returning to Albania previously, he said that his mother has her own life and he is not a child anymore. He has not discussed the matter with his mother.

82.       The claimant said that his daughter does not hold Albanian nationality in addition to British citizenship. This is because he has not had a chance to go to Albania and he does not know if dual nationality is permitted.

83.       SC has suffered from anxiety for about 8 to 10 years.

SC's oral evidence

84.       SC confirmed the contents of her first witness statement dated 9 August 2018 (pages 6-9 of bundle A) and her second witness statement dated 8 April 2019 (pages 3-5 of bundle B).

85.       SC said that she is claustrophobic and has not travelled by plane in the last six years. She has suffered from claustrophobia on and off since she was 18 years old. Even as she travelled to the hearing centre on 9 April 2019, her anxiety level was getting very high. She is taking Propranolol for anxiety and panic attacks, which is the reason why she is unable to fly.

86.       SC said that, if the claimant is removed, she would have to stop working in order to care for her daughter. She would therefore have to rely upon the benefit system to support herself. At present, her father helps her and the claimant by giving them extra money when they need it but he would not be able to pay for all of her outgoings if she had to give up work. Even if she works full-time, she would not be able to pay for childcare.

87.       SS is three years old and will begin to attend nursery in September 2019 for 3 hours a day five days a week. It would be her choice as to whether SS attends the morning session or the afternoon session. SC's mother works part-time for 16 hours a week. She works from 9 am to 3.30 pm and returns home at about 4pm. Her father works full-time in a bank. Her parents are elderly and they both work. They work Mondays to Fridays and have two days off a week.

88.       SC has two brothers and an older sister. Her older sister and her younger brother both live in Coventry. Her older brother, who is 30 years old and who suffers from schizophrenia and other conditions, lives with her parents. He does not work.

89.       SC said that it is not possible for her to rely upon her parents to help her with looking after SS because they look after her older brother and also because SS would have a half term holiday every 6 weeks. Her older brother is unstable at the moment. He has good days and bad days and sometimes her parents are called out of work to look after him.

90.       The claimant's brother lives close by. The brother's wife, who does not work, is very busy with her own children, including a new-born baby. She would therefore be unable to help SC. SC sees the claimant's brother and his family maybe once every two weeks and when she has her days off, maybe once a week or twice.

91.       Asked why she would not be able to raise SS on her own in view of the fact that many working single parents raise children on their own, she said that her worry was not so much about the fact that she would not be working but the fact that her family would be split.

92.       Asked to explain why her circumstances were such that it would be unduly harsh to expect her and SC to live in the United Kingdom without the claimant, SC said that the claimant is SS's primary carer. He looks after SS so that SC can work. If SC is unable to work, she would not have money to cover her living costs. She would have to rely upon the benefits system. She would have a split and broken family. SS would be distraught. SS's bond with the claimant is stronger than her bond with SC.

93.       When SC met the claimant, she was aware of his immigration status. They decided that they wanted to be together. This outweighed everything else. If he is removed, she would not go with him to live in Albania because she would not be able to do so.

NC's oral evidence

94.       NC confirmed the contents of his statement dated 8 August 2018 (pages 10-11 of bundle A). Financially, he supports SC with small amounts of money, "hundreds of pounds", when she and the claimant run into difficulties.

95.       NC's older son has just been diagnosed with schizophrenia and autism. He is now 31 years old and has been living at home with NC and his wife for a year. They are providing him with care and mental health treatment privately which is costing thousands. It took the NHS two years to diagnose his son with schizophrenia. He was aggressive and, at one point, the NHS suggested that the son live in a tent in the woods whilst they found him a hospice. His wife then cashed in her pension and they paid a total of £9,000 for him to stay at a Travelodge. After having his new medication, he has returned to his former quiet and sensitive self. He returned to live with NC and his wife.

96.       NC and his wife were then asked to pay £750 for an autism test. Now that he has been diagnosed with autism, the NHS mental health team have said that they cannot treat his autism. NC and his wife will therefore have to pay for his autism treatment privately. Hopefully the NHS will pay for his schizophrenia therapy. His son needs Dialectic Behaviour Therapy ("DBT") which has not been offered by the NHS, although they have waited for 2 years. It is not clear what will happen concerning the schizophrenia treatment. It is not known whether the NHS will provide it because the NHS team has said that his son will not understand the schizophrenia treatment given that he has been diagnosed with autism.

97.       Asked how much the autism treatment would cost, NC said that the therapy costs £90 per hour and his son would need two sessions of one hour each a month. The monthly costs would therefore be £180.

98.       In examination-in-chief, NC said that his son is currently studying English literature in Reading University. In re-examination, he said that his son commenced a different course in 2016 which he had to suspend in 2017 after commencing his second year, at the suggestion of the University, due to his health problems. He is not well enough to return to that course. He has therefore commenced a part-time music course a Newbury College for 3 days a week which he finds is very good for his condition.

99.       NC said that he works as a temporary I.T. consultant. He is 62 years old and hopes to retire soon. Occasionally, he has to provide emergency funding to his younger son who is studying for a PhD at university.

100.    Mr Clarke put to NC that, if the claimant were to be removed, he and his wife could help SC either financially or with childcare, NC said that he could help but he could be out of work very soon. He has not worked in telecommunications for 15 years. He has specialised in banking which is shedding staff. He could help SC with small amounts of money. He and his wife have a lot of expenses and they do not have much spare money. He only has a small pension and he is therefore putting as much money as he can into his pension.

101.    Questioned further about his work, NC said that he is a director in a company which he owns. The company takes temporary assignments or fixed term contracts, for work on a full-time basis. His wife works for the same company, 30 hours a week. She works Mondays to Thursday, 6 hours a day, and has Fridays and the weekends off. She works from 7.30 a.m. to about 1.30 p.m. or 2 p.m., Mondays to Thursdays. Mr Clarke put to NC that SC had suggested that her mother worked five days a week. NC said that his wife used to work five days a week but she decided that she wanted to take more time off work.

102.    NC said that his company was set up 5 years ago. Asked whether there has ever been any problem in his company obtaining work since it was set up, NC said that he has been lucky in being able to obtain work over the last 30 years. Asked whether there have been any gaps in the contracts, he said that he has been able to secure back-to-back contracts. He is the company's only employee.

103.    Asked to explain why SC had said that he worked in a bank whereas he had said that he was a company director, NC said that his time is split between his I.T. consultancy work and his work in telecommunications and settlement systems, enhancing existing systems, in investment banking.

104.    Concerning his household income, NC said, initially, that he and his wife earn £10,000 each and they each receive £25,000 each by way of dividends. He then said that he takes £8,500 in the form of gross salary and £25,000 as dividends from his company, making a total of £33,000. His wife takes a similar amount, £33,000 in total. Asked to explain his earlier evidence which was different, he said that their joint total takings were £66,000-£67,000. They owe £6,000 on their mortgage.

105.    Asked how often he and his wife see SC and SS, he said that his wife babysits SS on Saturdays because SC works at a hairdresser's salon on Saturdays.

106.    Asked whether he and his wife could give SC more emotional support if the claimant were to be removed, NC said that he works in London. His wife could visit SC and support her emotionally on Fridays, Saturdays and Sundays and possibly the evenings on the other days. However, she also looks after their older son who deteriorates badly in the afternoons. They have to help him in the evenings.

107.    Asked to explain why he had earlier said that his son had reverted to his former quiet sensitive self, whereas he was now saying that his son deteriorates badly in the afternoons, NC said that since his medication was changed, his son has become depressed and becomes paranoid when he goes out. He then returns home in a bad state, talking about killing himself. Asked why he had said earlier that his son had returned to his former quiet sensitive self, NC said that his son is quiet. Previously, he was aggressive, punching holes in the walls and insulting people in the street. His behaviour now is not such as requires anyone to look after him in the morning. He only needs help in the afternoons.

(ii) Assessment of the evidence

108.    For reasons which I will give later, I find that, even if the evidence before me is taken at its highest, the outcome of this appeal would be the same. However, as I have heard oral evidence and in order to adopt a "belt and braces" approach, I will assess credibility and make findings of fact.

109.    I did not find the three witnesses who gave oral evidence before me credible. My reasons are as follows:

110.    The claimant said in his oral evidence that he would not be able to obtain work as a bricklayer in Albania because, he said, such jobs are not available. I found his unsupported evidence that work as a bricklayer is not obtainable in Albania incredible. It was his own evidence that his uncle works as a bricklayer and, when questioned further, he admitted that he had not made any enquiries about the availability of work in Albania.

111.    The claimant's evidence that he could only earn £3 a day in Albania as a bricklayer is not supported by any evidence. In his attempt to explain why there was no supporting evidence, he said that it is not possible to obtain evidence of how much builders and bricklayers earn in Albania. I did not find this evidence credible given that his uncle works as a bricklayer. He could have asked his uncle to provide him with some independent supporting evidence. Instead, he said that his uncle had told him that he could only earn £3 a day and that was the evidence he was giving to the Tribunal.

112.    I do not accept the claimant's explanation that he would not be able to stay with his mother temporarily if he returned to Albania. His explanation was that his mother has her own life and he is not child anymore. However, he stayed with her when he returned to Albania in 2010 when he was 25 years old and was therefore no longer a child then.

113.    I do not accept the claimant's evidence that NC and his wife would not be prepared to help him financially temporarily until he is able to support himself in Albania. It is clear to me, on all of the oral and written evidence, including Mr Shuttleworth's description of the relationship between SS and the claimant, on the one hand, and SS's parents, that they are all very close and NC and his wife are very supportive of SS and the claimant. I do not believe that NC and his wife would simply let the claimant fend for himself if he needed short-term financial assistance. Likewise, it is clear that the claimant is close to his brother and his brother's family. I do not believe that, if SC needed assistance with childcare, the claimant's brother and his wife would refuse to help.

114.    SC sought to suggest that she would be unable to look to her parents for help with childcare, saying that her parents are elderly, that they work Mondays to Fridays and only have two days off whereas it was clear from NC's evidence that his wife has three days off a week. It was clear to me that this is a close-knit family as indeed Mr Shuttleworth indicates at para 18 of his report. I do not find it credible that SC would not have known that her mother now works four days a week and has three days off. I find that she sought to mislead me.

115.    SC's evidence that she has suffered from claustrophobia for 6 years is not supported by any medical evidence. The medical evidence at pages 6-7 of Bundle B comprises of her GP's records from 31 July 2017 to 26 November 2018. It is clear that she is taking Propranolol 10 mgs tablets once a day for generalised anxiety. She has had panic attacks and migraines. There is no mention of any problem of claustrophobia reported to the GP between 31 July 2017 to 26 November 2018. The list of "problems" at the bottom of page 7 which records "problems" reported to her doctor between 23 June 2010 and 8 July 2016 makes no mention of claustrophobia.

116.    When I asked Ms Bayati at the hearing on 9 April 2019 whether there was any further medical evidence, Ms Bayati informed me that there had not been sufficient time to obtain any. However, the EOL decision was sent to the parties on 25 January 2019. There was ample time between then and the hearing on 9 April 2019 and certainly before the hearing on 31 July 2019 for medical evidence to be obtained and submitted. In view of my general assessment of SC's credibility, I find that it has not been shown that SC suffers from claustrophobia or that this would prevent her from travelling to Albania to visit the claimant.

117.    The GP's records at pages 6-7 were printed on 5 April 2019. This shows that SC was taking Propranolol as at April 2019.

118.    There was a tendency on the part of all three witnesses to downplay the possibility of financial support for SC and the claimant from SC's parents in the future. I do not accept the claimant's evidence that SC's parents would not or could not help financially at all, given that SC and her parents are a close family, that SC's parents have helped SC and the claimant financially in the past and, on my findings, are financially able to do so in the future for the reasons given below.

119.    NC initially sought to portray that his work was insecure saying that he was a temporary I.T. consultant. However, when questioned further, he said that he was a company director, that he owned the company, that the company had always had back-to-back contracts in the past and that he had been very lucky in being able to obtain work over the last 30 years. It was plain from his subsequent evidence (upon further questioning) that his work was not insecure at all.

120.    NC initially said that the treatment for his son " is costing thousands", giving the impression that this was the ongoing cost of treatment for his son. He said that he and his wife had paid for the son's accommodation at Travelodge which cost £9,000. Plainly this was not the cost of treatment but the cost of accommodation. Upon further questioning, it became clear not only that this cost had already been incurred, the circumstances that gave rise to the cost of accommodation being incurred are not likely to arise again as the son has now been diagnosed and is receiving treatment.

121.    Furthermore, the actual cost to NC and his wife of his son's treatment in the past was £750 for an autism test. As to the cost of his son's treatment in the future, it became clear on further questioning that NC currently anticipates having to pay for two sessions of therapy a month for his son's treatment for autism. This would cost a total of £180 a month. NC said he did not know if the NHS would pay for his son's schizophrenia treatment. There is simply no evidence how much this would cost if NC and his wife have to provide it to his son.

122.    On the whole of the evidence, I find that the evidence NC gave upon further questioning simply did not tally with his initial evidence that his son's treatment "is costing thousands".

123.    I do not accept NC's evidence that he and his wife have little cash to spare, given that it is plain that they only have a small mortgage, their joint income is £70,000 according to his initial evidence and £66,000 according to his subsequent evidence and that, on the facts as known at present, his son's treatment would cost £180 a month.

124.    For the reasons given above, I find that SC would be able to look to her parents for some financial support to pay for childcare. NC and his wife are able and willing to provide financial assistance to SC and, temporarily, to the claimant until he is able to support himself in Albania.

125.    NC initially said that, after his son received medication, he returned to his former quiet sensitive self. However, when questioned whether he and his wife could give SC more emotional support if the claimant is removed, he said that his son deteriorates badly in the afternoons. There was no mention of this in the earlier part of his evidence. When asked to explain his earlier evidence that his son had returned to his former quiet sensitive self, he said that his son is quiet and needs help in the afternoons. This does not explain his failure to mention earlier that his son still needs help in the afternoons. His initial evidence that his son has returned to his former quiet and sensitive self was not consistent with SC's evidence that her brother was unstable at the moment.

126.    Mr Shuttleworth's report was prepared following his meeting with the claimant and SC on 24 July 2018. On the basis of his interview with the claimant and SC, Mr Shuttleworth said, inter alia, that the claimant was the " leader and primary carer" of SS (para 15); that given his experience and observations it was clear to him that the claimant was the " parent in control" and to whom SS listened the most (para 14); that it was clear to him that SS " would be quite devastated emotionally" if the claimant were to leave the United Kingdom; and that he " would suggest that this could well have a major effect on her emotional development which is clearly at a crucial stage at her present age" (para 11). It appears that SS was not present at the meeting from which it must follow that Mr Shuttleworth was relying upon what was relayed to him by the claimant and SC. Nevertheless, I accept his evidence. I place some weight, as I consider appropriate, on Mr Shuttleworth's report.

127.    On the whole of the evidence, I make the following findings which are in addition to the preserved findings of Judge Thomas:

(i) The claimant, SC and SS are a close family unit, albeit that SS is closer to the claimant than to SC. They as a family unit are also close to NC and his wife who, according to Mr Shuttleworth's report (para 18) are regular visitors.

(ii) If the claimant is removed, SC and also SS would have strong emotional support from NC and his wife. They would also have emotional support from the claimant's brother and his family.

(iii) SC would be able to obtain some financial support and some help with childcare from her parents. She would also be able to obtain some help with childcare from the family of the claimant's brother, who are also close to SC and the claimant.

(iv) It has not been shown that SC would be unable to pay for any gap in childcare and also support herself if she continued to work full-time and/or reduced her hours of work.

(v) SC is suffering from generalised anxiety. She has also had panic attacks and migraines. I do not accept that she suffers from claustrophobia.

(iii) Exception 1 - private life exception (s.117C(4)) and para 399A

128.    It is plain that the claimant cannot satisfy the private life exception because he has not been lawfully resident in the United Kingdom for most of his life.

129.    In addition, it is necessary for the claimant to show that he is socially and culturally integrated. This is a concept which is to be interpreted with common sense: SC (Jamaica) [2017] EWCA Civ 2112.

130.    I find that the evidence before me is insufficient to show that the claimant is culturally integrated into society in the United Kingdom. He speaks English. He is married to a British citizen. He is close to his wife's family. There is also a letter of support from SC's aunt (at page 18 of bundle A) and a letter of support from her brother (page 17 of bundle A). However, whilst this is relevant evidence, there is very limited evidence indeed of integration into the wider society. There is a witness statement from someone who describes himself as a very close friend (page 14-15 of bundle A) and who says that the claimant and his family have a strong network of friends in Reading and are an integral and valued part of the community in which they reside. However, no one else from this " strong network of friends" has written to support the claimant's appeal. He himself did not attend to give oral evidence.

131.    The very limited evidence of integration into society in the United Kingdom is surprising given the length of the claimant's residence.

132.    On the evidence before me, I find that the claimant is not socially and culturally integrated into the United Kingdom.

133.    In considering the claimant's circumstances on return to Albania, I remind myself of para 14 of the judgment of the Court of Appeal in SSHD v Kamara [2016] EWCA Civ 813, which reads:

"14. In my view, the concept of a foreign criminal's "integration" into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of "integration" calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's

134.    The claimant has lived in the United Kingdom since his arrival on 15 July 2005, save for two periods: (i) following his appeal hearing in May 2007, and in December 2009, the Dutch authorities contacted the Home Office and stated that he was serving a prison sentence there, following which he was returned to the United Kingdom on 8 January 2010; and (ii) from 10 February 2010 when he was deported to Albania and July 2010 when he re-entered the United Kingdom illegally. Although it is not clear precisely when in 2007/2008/2008 he left the United Kingdom, he has nevertheless lived in the United Kingdom for a very long period, on any view. However, he has not claimed that his length of residence in the United Kingdom is such that, on that account alone, he would experience very significant obstacles to his reintegration in Albania.

135.    The claimant was born in Albania and grew up in Albania. He left Albania at the age of 21 years. His mother and sister are in Albania. He also has an uncle who is in the same trade, i.e. bricklaying. I do not accept the claimant's evidence that he would not be able to obtain employment as a bricklayer or find some other suitable employment in Albania to support himself. I find that he would be able to find work and support himself. He has said not said that he no longer speaks Albanian. I have found that he would be able to look to NC and his wife for short-term financial assistance until he is able to support himself in Albania.

136.    On the whole of the evidence, I find that there would not be very significant obstacles to the claimant's reintegration in Albania.

137.    Accordingly, the claimant does not satisfy the private life exception for three entirely separate reasons, each of which is determinative of the exception.

(iv) Exception 2 - the family life-partner exception (s.117C(5) and para 399(b)

138.    The claimant met SC in July 2011. They began living together in July 2013. As stated at para 13 above, he was granted DLR until 9 September 2006 in a false name and assumed date of birth. Accordingly, his relationship with SC was formed at a time when he was in the United Kingdom unlawfully.

139.    Under para 399(b)(i) of the Immigration Rules, it must be shown that the claimant and SC formed their relationship at a time when the claimant was in the United Kingdom lawfully and his immigration status was not precarious. This requirement is not mirrored in s.117C(5). Mr Clarke submitted that the claimant could not satisfy the family life-partner exception because he could not satisfy para 399(b)(i) of the Immigration Rules. Ms Bayati relied upon the fact that the requirement in para 399(b)(i) is not mirrored in s.117C(5).

140.    Ms Bayati did not refer me to any authority to support her proposition whereas Mr Clarke relied upon Chege ("is a persistent offender") [2016] UKUT 187 (IAC). In Chege, the Upper Tribunal held that the term "persistent offender" in s.117D(2)(c) of the 2002 Act must mean the same thing as "persistent offender" in paragraph 398(c) of the Immigration Rules.

141.    I agree with Mr Clarke that, by analogy with the reasoning in Chege, s.117C(5) and para 399(b) must be applied consistently. There are numerous judgments of the higher courts in which the requirements in para 399(b) have been applied without it being considered that the family life-partner exception in s.117C(5) sets different and less onerous criteria. To the contrary, the Upper Tribunal considered in Bossade (ss.117A-D: Interrelationship with Rules) [2015] UKUT 415 (IAC) that paras 398-399A set out the substantive requirements whereas s.117A-D set out the statements of principle. This makes sense, especially when one considers that the family-life exception in s.117C(5) does not set out the two-limbed requirement set out at paras 399(b)(ii) and (iii) but only refers to it being necessary to show that the effect of deportation on the partner would be unduly harsh.

142.    I therefore do not accept Ms Bayati's submission. I have therefore concluded that the claimant cannot satisfy the criteria for the family life-partner exception because his relationship with SC was established when he was in the United Kingdom unlawfully.

143.    In any event, although Mr Clarke accepted that it would be unduly harsh for SC to live in Albania, I find that it would not be unduly harsh for SC to remain in the United Kingdom without the claimant. My reasons are as follows:

144.    It is clear from KO (Nigeria) that the threshold for the term "unduly harsh" is an elevated one. At para 23 of its judgment in KO (Nigeria), the Supreme Court said:

"23. ... the expression "unduly harsh" seems clearly intended to introduce a higher hurdle than that of "reasonableness" under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word "unduly" implies an element of comparison. It assumes that there is a "due" level of "harshness", that is a level which may be acceptable or justifiable in the relevant context. "Unduly" implies something going beyond that level.... One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent...."

145.    At para 27, the Supreme Court approved of the guidance given in MK (Sierra Leone) v SSHD [2015] UKUT 223 (IAC) as to the meaning of the phrase " unduly harsh". Para 27 reads:

"27. Authoritative guidance as to the meaning of "unduly harsh" in this context was given by the Upper Tribunal (McCloskey J President and UT Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC), [2015] INLR 563, para 46, a decision given on 15 April 2015. They referred to the "evaluative assessment" required of the tribunal:

"By way of self-direction, we are 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. Furthermore, the addition of the adverb 'unduly' raises an already elevated standard still higher."

146.    I find that SC's circumstances as they have been found to be (I refer to my findings of fact and the preserved findings of Judge Thomas) are not such as to reach the threshold explained in KO (Nigeria) and MK (Sierra Leone), albeit that it might seem harsh, subjectively, to those affected by it. Indeed, even if SC has to give up work completely in order to care for SS and relies upon the benefit system for financial support and even if she does suffer from claustrophobia so that she and SS would be unable to visit the claimant for several years, I find that the threshold of undue harshness is not reached.

(v) Exception 2 - the family life-child exception (s.117C(5) and para 399(a)

147.    Given the preserved findings of Judge Thomas and that Mr Clarke accepted that it would be unduly harsh for SS to live in Albania, the sole issue is whether it would be unduly harsh for SS to remain in the United Kingdom without the claimant.

148.    I again remind myself of all of the evidence in the case, including Mr Shuttleworth's report, and the findings made, including the preserved finding of Judge Thomas that it is in the best interests of SS for her to remain in the United Kingdom in the care of both parents. I see no reason not to accept his opinion that SS " would be quite devastated emotionally" if the claimant were to leave the United Kingdom; and that he " would suggest that this could well have a major effect on her emotional development which is clearly at a crucial stage at her present age".

149.    It is clear from KO (Nigeria) that I must not take into account the public interest but consider SS's circumstances and decide whether it would be unduly harsh for her the remain in the United Kingdom without the claimant. There is nothing in KO (Nigeria) which precludes me from taking into account the best interests of SS as a primary consideration.

150.    Having considered everything in the round and having taken into account the best interests of SS as a primary consideration, I find that it would not be unduly harsh for SS to remain in the United Kingdom without the claimant, given the elevated threshold that applies as explained in KO (Nigeria) and MK (Sierra Leone), albeit that I again acknowledge that this decision might seem harsh, subjectively, to those affected by it.

151.    Accordingly, the family life-child exception does not apply.

(vi) Very compelling circumstances over and above those described in paras 399 and 399A

152.    The Court of Appeal held, in NA (Pakistan) and others v SSHD [2016] EWCA Civ 662, that foreign criminals who have not been sentenced to a period of imprisonment of at least 4 years may also seek to establish that there are very compelling circumstances, over and above those described in Exceptions 1 and 2. The Court of Appeal also held that a deportee could rely, by way of very compelling circumstances, on factual matters falling within the scope of the exceptions and that a person whose circumstances fell exclusively within the exceptions might still be able to demonstrate very compelling circumstances if the factual matters which fell within the exceptions went well beyond what was necessary to make out a bare case under the exceptions.

153.    In other words, a foreign criminal can rely on matters within or outside the scope of the circumstances described in the exceptions, but would need to rely on features which made their Article 8 claim " especially strong" in the case of an offender sentenced to a period imprisonment of less than 4 years but at least 12 months (para 29 of the judgment) and " an especially compelling kind ... going well beyond what would be necessary to make a bare case of the kind described in Exceptions 1 and 2" in the case of an offender sentenced to a period of imprisonment of at least 4 years (para 30 of the judgment).

154.    At paras 33 and 34 of NA (Pakistan), the Court of Appeal said:

"33. Although there is no 'exceptionality' requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient.

34. The best interests of children certainly carry great weight, as identified by Lord Kerr in HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25; [2013] 1 AC 338 at [145]. Nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children. The desirability of children being with both parents is a commonplace of family life. That is not usually a sufficiently compelling circumstance to outweigh the high public interest in deporting foreign criminals. As Rafferty LJ observed in Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488 at [38]:

" Neither the British nationality of the respondent's children nor their likely separation from their father for a long time are exceptional circumstances which outweigh the public interest in his deportation.""

( My emphasis)

155.    The public interest falls to be taken into account at this stage. The claimant was convicted of the offence in October 2006 for which he received a sentence of 12 months' DTO. This goes in his favour because the sentence is at the lowest level that can bring an individual within the S.117C. However, the offence in question was an offence of possession of a false instrument. There is a public interest in deterring people from committing such offences.

156.    The public interest is increased by reason of the fact that the claimant claimed asylum in a false name and with a false date of birth, obtaining DLR because the Secretary of State believed him to be a minor. Furthermore, after he was deported on 10 February 2010, he re-entered the United Kingdom illegally.

157.    I take into account my assessment of the evidence in relation to the private life exception, the family life-partner exception and the family life-child exception.

158.    I accept that, during the claimant's lengthy residence, he will have established private life. However, he has not submitted any evidence to show that there are any strong elements of his private life. Furthermore, any private life established in the period before his true name and date of birth were disclosed to the Secretary of State, was established in the full knowledge that he had deceived the Secretary of State. He has subsequently established his private life in the full knowledge that his immigration status was unlawful. I give little weight to the claimant's private life established in the United Kingdom whilst he has been present unlawfully, pursuant to s.117B(4) of the 2002 Act, although I bear in mind that the "little weight" provisions are not a fixity.

159.    Given the very limited evidence, I find that there are no features of the claimant's private life that are especially strong, notwithstanding the length of his residence in the United Kingdom.

160.    Ms Bayati asked me to take into account the fact that the lapse of time since the claimant committed his offence and that he has not re-offended since. The claimant says in his first witness statement that he deeply regrets his actions, he is extremely remorseful and he has not committed any offence since. NC says in his witness statement that the claimant made errors of judgment. He speaks of the claimant's good character. The close friend (page 14 of bundle A) says the claimant has changed a lot.

161.    However, in Danso v SSHD [2015] EWCA Civ 596, the Court of Appeal said, at para 20, that rehabilitation and the lack of subsequent offending are not uncommon and do not contribute greatly to the existence of very compelling circumstances required to outweigh deportation, although it may amount to an important factor in a few cases. More recently, in Binbuga v SSHD [2019] EWCA Civ 551, the Court of Appeal said that rehabilitation involved no more than returning a person to a place where society expects him to be and that it generally carries no material weight in the proportionality balance.

162.    In my view, there is nothing in the claimant's case which justifies treating the fact that he has not committed any further offences as an important factor or one which contributes in any material way in his favour in my assessment of whether there are very compelling circumstances, over and above the exceptions. This is not one of the few cases in which rehabilitation and the lack of subsequent offending amount to an important factor. He has not produced anything to suggest that these considerations should be regarded as important factors in his particular case.

163.    In his witness statement, the claimant says that his daughter is innocent and should not be punished. This is an empty point. There is no question of SS being punished.

164.    Ms Bayati did not rely upon any factual matters that do not fall within the scope of the exceptions I have considered. Once again, I remind myself of the impact on SC of the claimant's removal including the fact that she may find it difficult to remain in employment and may have to rely upon financial support from her parents and/or on benefits.

165.    I take into account the impact on SS and, in this regard, what Mr Shuttleworth says in his report. I take into account her best interests as a primary consideration.

166.    I take into account the fact that Mr Clarke accepted, on behalf of the Secretary of State, that it would be unduly harsh for SC and SS to live in Albania with the claimant. I take into account that this is a happy family unit that will be fractured for years to come. On the other hand, it is relevant also to bear in mind that deportation does separate families.

167.    I have taken everything into account whether or not specifically referred to. Having taken everything into account and having given such weight as I consider appropriate to the relevant factors, I have concluded that the claimant has failed to show that there are features of his case that make his Article 8 claim especially strong. I am not satisfied that there are very compelling circumstances which would make his deportation a disproportionate interference with his Article 8 rights and those of SC and SS, considering their circumstances individually and collectively.

168.    I therefore re-make the decision on the claimant's appeal by dismissing it.

169.    Finally, as I said earlier, this is not a case in which the assessment of credibility makes a difference to the outcome. Even taking the evidence before me at its highest, including:

(i) that SC is claustrophobic and would not be able to travel to Albania; therefore that this family would be split for several years including during the period whilst SS is growing up without even the possibility of SC and SS visiting the claimant

(ii) that SC would have to give up work entirely in order to look after SS and thereby be forced to rely entirely upon benefits because she would be unable to look to her parents for any financial support

(iii) that SS is very close to the claimant who is her primary carer; she is closer the him than she is to SC; and she would be devastated emotionally if the claimant is removed

(iv) Mr Shuttleworth's opinion that "this could well have a major effect on [SS's] emotional development which is clearly at a crucial stage at her present age"

and taking into account the findings of Judge Thomas, including that the best interests of SS are served with remaining in the United Kingdom in the care of both of her parents, I would have reached the same findings of fact in relation to each exception and whether there are very compelling circumstances over and above those described in paras 399 and 399A.

Decision

The decision of Judge of the First-tier Tribunal D A Thomas involved the making of errors of law sufficient to require it to be set aside. Accordingly, the decision of Judge Thomas to allow the claimant's appeal against the respondent decision on human rights grounds was set aside. I re-make the decision on the claimant's appeal against the Secretary of State's decision by dismissing it on human rights grounds.

 

 

Upper Tribunal Judge Gill Date: 11 August 2019

 


Annex A

 

SS.82 AND 86 OF THE 2002 ACT

 

82 Right of appeal to the Tribunal

(1) A person ("P") may appeal to the Tribunal where-”

(a) the Secretary of State has decided to refuse a protection claim made by P,

(b) the Secretary of State has decided to refuse a human rights claim made by P, or

(c) the Secretary of State has decided to revoke P's protection status.

(2) For the purposes of this Part-”

(a) a "protection claim" is a claim made by a person ("P") that removal of P from the United Kingdom-”

(i) would breach the United Kingdom's obligations under the Refugee Convention, or

(ii) would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;

(b) P's protection claim is refused if the Secretary of State makes one or more of the following decisions-”

(i) that removal of P from the United Kingdom would not breach the United Kingdom's obligations under the Refugee Convention;

(ii) that removal of P from the United Kingdom would not breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;

(c) a person has "protection status" if the person has been granted leave to enter or remain in the United Kingdom as a refugee or as a person eligible for a grant of humanitarian protection;

(d) humanitarian protection" is to be construed in accordance with the immigration rules;

(e) "refugee" has the same meaning as in the Refugee Convention.

(3) ...

86 Determination of appeal

(1) This section applies on an appeal under section 82(1).

(2) The Tribunal must determine-”

(a) any matter raised as a ground of appeal, and

(b) any matter which section 85 requires it to consider

 

SS.117A-D OF THE 2002 ACT

 

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."

 

 

THE IMMIGRATION RULES RELATING TO DEPORTATION

 

A362. 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.'

Revocation of deportation order

390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:

(i) the grounds on which the order was made;

(ii) any representations made in support of revocation;

(iii) the interests of the community, including the maintenance of an effective immigration control;

(iv) the interests of the applicant, including any compassionate circumstances.

390A. Where paragraph 398 applies the Secretary of State will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors.

391. In the case of a person who has been deported following conviction for a criminal offence, the continuation of a deportation order against that person will be the proper course:

(a) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order when, if an application for revocation is received, consideration will be given on a case by case basis to whether the deportation order should be maintained, or

(b) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of at least 4 years, at any time,

unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors.

391A. In other cases, revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.

392. Revocation of a deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office.

396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007.

397. A deportation order will not be made if the person's removal pursuant to the order would be contrary to the UK's obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.

A.398. 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 four 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

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.

 

 

THE IMMIGRATION RULES IN NON-DEPORTATION CASES

 

Para 276ADE of the Immigration Rules:

276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK

 

Appendix FM, Exceptions EX.1 and EX.2

Section EX: Exceptions to certain eligibility requirements for leave to remain as a partner or parent

EX.1. This paragraph applies if

(a)

(i) the applicant has a genuine and subsisting parental relationship with a child who-

(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;

(bb) is in the UK;

(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and

(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK; or

(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.

EX.2. For the purposes of paragraph EX.1.(b) "insurmountable obstacles" means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.

 

 


ANNEX B

 

 

Upper Tribunal

(Immigration and Asylum Chamber)

 

Appeal number: HU /04642/2018

 
the immigration Acts

 

Heard at:

Field House

 

Decision promulgated

On

22 January 2019

 

25 January 2019

 

 

Before

 

Lord Beckett, sitting as an Upper Tribunal Judge

Upper Tribunal Judge Gill

 

 

Between

 

 

The Secretary of State for the Home Department

Appellant

 

And

 

 

A S

(ANONYMITY ORDER MADE)

 

Respondent

 

Anonymity

 

We make an order under r.14(1) 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 original appellant. No report of these proceedings shall directly or indirectly identify him. This direction applies to both the original appellant and to the respondent and all other persons. Failure to comply with this direction could lead to contempt of court proceedings.

We make this anonymity order because the decision refers to the original appellant's minor daughter.

The parties at liberty to apply to discharge this order, with reasons.

 

 

Representation:

For the appellant: Mr D Clarke, Senior Home Office Presenting Officer.

For the respondent: Mr A. Metzer QC, instructed by Appleby Shaw Solicitors.

 

Decision and Directions

1.          The Secretary of State has been granted permission to appeal the decision of Judge of the First-tier Tribunal Thomas (hereafter the "judge") who, in a decision promulgated on 27 September 2018 following a hearing on 16 August 2018, allowed the appeal of Mr A S (hereafter the "claimant"), a national of Albania born on 3 July 1984, against a decision of the respondent of 31 January 2018 to refuse to revoke a deportation order signed on 8 January 2010 (served on 10 February 2010).

2.          In the decision letter, the respondent considered and rejected the claimant's private and family life claim under Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The claimant's family life claim was based on his relationship with his partner ("SC") and his daughter ("SS") by SC born on 26 May 2016.

3.          Deportation proceedings were commenced against the claimant following his conviction at Channel Juvenile Court of an offence of possession of a false instrument. On 17 October 2006, he was sentenced to a 12-month Detention and Training Order ("DTO").

4.          As will be seen, the judge decided that the claimant was not a " foreign criminal" for the purposes of paras 398, 399 and 399A of the Immigration Rules and that section 117C of the Nationality, Immigration and Asylum Act 2002 (the "2002 Act") did not apply.

5.          We have not considered it necessary to set out the full immigration history.

Ambit of the grant of permission

6.          An issue arose before us as to whether the grant of permission by Judge of the First-tier Tribunal Lambert was limited to the issue raised in paras 1-3 of the grounds, i.e. Ground 1 as set out at para 18(i) below, that the judge materially erred in law by failing to treat the claimant as a foreign criminal.

7.          In the section of the standard form document, Judge Lambert stated: " Permission to appeal is GRANTED". Judge Lambert said, under the heading " Reasons for decision", as follows:

"1. ...

2. Paragraphs 1-3 of the grounds take issue with the finding made by the Judge at paragraph 22 that [the claimant's] 12 month detention and training order did not make him a foreign criminal within paragraph 398(b) 'because his sentence falls short of 12 months' imprisonment'. It appears that the judge has misread sub paragraph (b) which refers to a sentence of ' at least 12 months'. The ground is arguable and material.

3. The remaining grounds may amount to no more than a disagreement with the judges's [sic] finding.

4. There is therefore an arguable error of law disclosed by the application."

8.          Mr Metzer submitted that the grant of permission was limited to Ground 1. He accepted that the decision of the President and Upper Tribunal Judge Dawson in Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC) applies. However, he submitted that it was clear from para 3 of Judge Lambert's decision that she did not consider the remaining grounds arguable. Para 4 of Judge Lambert's decision referring to "... an arguable error of law..." shows that she considered that only one ground was arguable.

9.          We decided that the grant of permission was a general grant, as we stated at the hearing. We shall now give our reasons for that decision.

10.       In the first place, we do not consider that the " Reasons" section of Judge Lambert's decision was, on its face, unambiguous. This is because para 3 states that " The remaining grounds may amount to more than a disagreement..." (our emphasis). If she had intended to refuse permission on the remaining grounds, clearer words would have been needed to the effect that the remaining grounds were unarguable, not merely that "[they] may amount to more than a disagreement...". In our view, para 3 is consistent with Judge Lambert merely expressing a view about the merits of the remaining grounds. On the other hand, para 4 casts some ambiguity, in that, it refers in the singular to " an arguable error of law". Where there is some ambiguity, this should be resolved in favour of the applicant, as the Court of Appeal held at para 77 of SSHD v Rodriguez; Mandalia and Patel v SSHD [2014] EWCA Civ 2, referred to at para 22 of Safi and applied by the Tribunal in the Safi decision. The fact that the applicant is the Secretary of State makes no difference, in our view.

11.       We are therefore of the view that para 46 of Safi applies. This reads:

"Henceforth, it is likely to be only in very exceptional circumstances that the Upper Tribunal will be persuaded to entertain a submission that a decision which, on its face, grants permission to appeal without express limitation is to be construed as anything other than a grant of permission on all of the grounds accompanying the application for permission. That is highly likely to be so, regardless of what may be said in the reasons for decision section of the document."

12.       In our judgement, there were no such " very exceptional circumstances" nor did Mr Metzer suggest that there were.

13.       In any event, even if we are wrong in our reasons as given above, we exercised our discretion to entertain the remaining grounds, having taken into account the fact that Mr Metzer said that he was prepared to deal with the remaining grounds, as he had submitted a response to the Secretary of State's grounds which dealt with all of the grounds.

The judge's decision

14.       The judge considered that the claimant was not a " foreign criminal" for the purposes of paras 398, 399 and 399A of the Immigration Rules (para 22 of her decision). In her view, the claimant's sentence fell short of 12 months' imprisonment. She therefore concluded that paras 398, 399 and 399A did not apply to the claimant (para 22 of the judge's decision) and proceeded to consider the claimant's Article 8 claim in line with the approach explained in Razgar [2004] UKHL 27 and Hesham Ali (Iraq) v SSHD [2016] UKSC60, at paras 23-30 of her decision. She found, inter alia, that the claimant enjoyed family life with SC and SS (para 23).

15.       At para 25, in relation to proportionality, the judge considered the care the claimant provides for SS; that SS is a British citizen and entitled to the benefits and entitlements of her nationality; her best interests were to remain in the care of both parents in the United Kingdom; and that deportation would result in a lengthy separation between SS and the claimant which she considered would not be in the best interests of SS. At para 26, the judge considered the fact that the claimant had two offences for using a false instrument, one in the United Kingdom and one in Holland for which he was sentenced to a DTO in the United Kingdom and 14 months' imprisonment in Holland; that these offences were committed between 2006 and 2008; and that there had been no further offending in the past 10 years. In these circumstances, she said that she did not find that the claimant was a "persistent offender" and therefore that s.117C of the 2002 Act does not apply.

16.       At para 27, the judge took into account, in the claimant's favour, the fact that he speaks English and has work skills, which she said would aid integration; and that little weight was to be accorded to his private life and family life with SC because such private life and family life had been established whilst he was in the United Kingdom unlawfully. At para 28, she said that she weighed in the balance the fact that the claimant's deportation is deemed to be conducive to the public good because of his lack of a right of abode, that he had re-entered the United Kingdom illegally in July 2010 and has remained here since; and that he re-entered the United Kingdom in breach of the deportation order. At para 29, she said that she weighed in the balance the length of time that has passed since the claimant's offences in the United Kingdom and in Holland which, in her view, indicated rehabilitation. She noted that the claimant now has a genuine passport. At para 30, she said:

"I have considered all relevant factors, and find (a) the child's best interests and (b) the age of the offence, amount to exceptional circumstances that just tips the balance against the public interest in [the claimant's] removal in this particular case. For these reasons, I find that the decision breaches Article 8 ECHR".

( Our emphasis)

17.       It is therefore plain that the judge did consider, as she said she would, the claimant's Article 8 claim in a free-standing way outside the scheme set out in the Immigration Rules, in particular, paras 398, 399 and 399A.

The grounds and the claimant's written response

18.       Mr Clarke informed us that he did not pursue paras 8 and 9 of the grounds. He pursued the remaining grounds which may be summarised as follows:

(i) (Ground 1, paras 1-3 of the grounds) The judge erred in law by failing to treat the claimant as a foreign criminal as defined in s.117D(2)-(4) of the 2002 Act. She therefore erred in law in failing to apply paras 398, 399 and 399A of the Immigration Rules and s.117C of the 2002 Act.

(ii) (Ground 2, para 5 of the grounds) The judge failed to give adequate reasons why family life could not continue in Albania. SS was only two years old and therefore had not started her education yet. There was no evidence before the judge of the effect that the claimant's deportation would have on SS. There was nothing which would allow the claimant's circumstances to overcome the public interest.

(iii) (Ground 3, para 10 of the grounds) The judge erred in taking into account, in the claimant's favour, the fact that he speaks English because this is neutral factor, as the Court of Appeal held in Rhuppiah [2016] EWCA Civ 803.

(iv) (Ground 4, para 11 of the grounds) The judge failed to take into account the fact that the claimant is not financially independent. This is a reference to s.117B(3) of the 2002 Act.

(v) (Ground 5, final sentence of para 4 of the grounds) The judge failed to consider the question of revocation.

19.       In relation to Ground 1, the claimant's response dated 14 January 2019 under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (hereafter the "Reply") conceded that a 12-month DTO brought the claimant within the definition of " foreign criminal" in s.117D of the 2002, that s.117C therefore applies and that the judge should have considered paras 398 and 399 of the Immigration Rules.

20.       However, it is said, for the reasons given in the Reply, that the judge's error was not material. In summary, the Reply relies upon the evidence of:

(i) SC who said that SS could not move to Albania because of the strong ties to family in the United Kingdom, the patriarchal society in Albania and discrimination that SS would be subjected to as a woman; and that as a result, SC would not permit such relocation;

(ii) Mr Roy Shuttleworth, Clinical Consultant, who stated, in his report dated 27 July 2018, that, although SS was clearly attached to her mother, she is much more attached to her father; that this was demonstrated by a "nice, warm, tactile relationship"; that given SS's age, she would be devastated emotionally if her father were to leave which may have an effect on her emotional development; that, furthermore, separation of a stable family unit would cause major disruption in itself; that SS does not speak Albanian and would find the culture strange; and that medical facilities and appropriate education for SS would also be difficult to find.

21.       The Reply contends (para 23) that the judge had considered all of the evidence and submissions of the parties and had made a finding, at least by clear implication, that it would be unduly harsh on SS for the claimant to be deported. At para 27, the Reply contends that, even if the judge had considered s.117C of the 2002 Act and para 399 of the Immigration Rules, she would have reached the conclusion that it would be unduly harsh on SS if the claimant were to be deported.

22.       In relation to Ground 2, the Reply contends (paras 30 and 33-34) that the judge heard a considerable amount of evidence. She was fully entitled to reach her findings of fact. The effects of the claimant's deportation on SS constituted a major part of the hearing.

23.       In relation to Ground 3, the Reply draws attention to the fact that s.117B(2) clearly emphasises the fact that the English language requirement is in the public interest because persons who are able to speak English are less of a burden on tax-payers and able to integrate into society. In any event, the judge considered the claimant's knowledge of English in the round along with the rest of the evidence.

24.       In relation to Ground 4, the Reply contends, inter alia, that the claimant's family were not a burden on the taxpayer on the evidence before the judge. Although the claimant relied upon SC, he was not financially dependent in the sense of being a burden on the taxpayer.

Submissions

25.       In relation to Ground 1, Mr Clarke submitted that the judge's assessment of the impact on SS of the claimant's deportation was limited to considering her best interests, whereas the test she should have applied pursuant to s.117C(5) is whether the effect of the claimant's deportation on SS would be unduly harsh. The Supreme Court held in KO (Nigeria) and others v SSHD [2018] UKSC 53 that the Upper Tribunal had correctly stated the threshold to be applied in MK (Sierra Leone) v SSHD [2015] UKUT 223. The judge had not even mentioned the threshold in her decision. He submitted that, in the absence of any findings as to whether the effect of the claimant's deportation would be unduly harsh on SS, it was impossible to see how a mere finding as to the best interests of SS was sufficient to show that the judge's error was immaterial.

26.       Mr Clarke submitted that Ground 2 followed from Ground 1. He submitted that, irrespective of whether or not there was any evidence to establish the effect on SS of being separated from the claimant, the fact was that there was no reasoning to explain why the impact on SS of the claimant's deportation would be unduly harsh. There was no mention of the applicable threshold for undue hardship or any applicable case-law.

27.       Mr Clarke continued to rely on Grounds 3 and 4 as explained in the written grounds.

28.       Mr Clarke drew our attention to para 44 of KO (Nigeria) where the Supreme Court held that the Secretary of State's concession in Sanade (British children - Zambrano - Dereci) [2012] UKUT 48, to the effect that a British citizen child could not be expected to relocate outside the United Kingdom, was made in error. He informed us that he was restricted by Home Office guidance to the effect that British citizen children should not be expected to leave the territory of the European Union.

29.       In response, Mr Metzer submitted that the Secretary of State's guidance was nevertheless relevant to proportionality.

30.       In relation to Ground 1, Mr Metzer took us through the report of Mr Shuttleworth. He submitted that it was clear from the report that, as SC is the breadwinner, SS is often with the claimant. The judge summarised the report at para 10 of her decision. Although she did not refer to it subsequently in her assessment of the appeal, Mr Metzer submitted that the report did "find its way" into the judge's findings, as indicated, for example, by the third sentence of para 24 of her decision where she said: " The [claimant] plays a significant role in [SS'] upbringing and is her main carer whilst her mother works"; para 30 where she said " I have considered all relevant factors..."; and her references to the best interests of SS which, he submitted, were based on Mr Shuttleworth's report. Accordingly, Mr Metzer submitted that, even if the judge had considered whether the impact of the claimant's deportation would be unduly harsh on SS, she would have concluded that it was.

31.       In response, Mr Clarke submitted that the judge's decision does not refer to the reasoning advanced by Mr Metzer. He reminded us that the Court of Appeal has held that it would be very rare for the best interests of a child to outweigh the public interest in deportation.

32.       We reserved our decision on the question whether the judge had materially erred in law.

33.       We asked the parties to address us on the appropriate disposal if we were to conclude that the judge had materially erred in law. In such event, both agreed that:

(i) the judge's findings as set out at para 22 of the Reply should stand; and

(ii) the judge's summary of the oral evidence at paras 5-9 of her decision should stand as the record of the oral evidence given at the hearing before the judge.

34.       As to whether the appeal should be remitted to the First-tier Tribunal for the decision on the appeal to be re-made or whether the Upper Tribunal should re-make the decision, we pointed out that the fact that the claimant was successful before the judge may justify remittal. On the other hand, the fact that the issues to be considered were limited and that certain findings were to be preserved suggest that it is appropriate for the Upper Tribunal to re-make the decision.

35.       Mr Metzer agreed that, if a material error of law was found, we should retain this appeal in the Upper Tribunal and that the Upper Tribunal should re-make the decision on the appeal.

Assessment

36.       As will be seen from our summary of the submissions at the hearing, Mr Clarke did not address us on Ground 5 although he said that he relied upon the written grounds and did not say that he withdrew any part of para 4 of the grounds.

37.       Ground 5 states that the judge failed to consider the question of revocation. The decision letter refers to paras 390 and 390A of the Immigration Rules. Ground 5 makes no material difference to our assessment of whether the judge had materially erred in law, given that: (i) Mr Metzer accepted that the claimant fell to be treated as a foreign criminal and therefore that para 398(b) of the Immigration Rules applies; (ii) para 390A of the Immigration Rules provides, in respect of decisions to refuse to revoke a deportation order, that, where para 398 applies, the Secretary of State will consider whether para 399 or 399A applies and, if it does not, it will be only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors; and (iii) the question whether the judge materially erred in law in failing to consider and apply para 399(a) is the subject of Ground 1 which the parties did address at the hearing.

38.       We therefore turn to Ground 1.

39.       Section 117C provides (insofar as relevant to the issues before us, as follows:

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) ...,

(b) ..., and

(c) ....

(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) ...

40.       It is clear from KO (Nigeria) that the general rules in s.117B(1) and (2) have been reflected by the enactment of the categories of " foreign criminal", defined by reference to whether or not their sentences were of four years or more, and two precisely defined exceptions in S.117C, that the two exceptions are free-standing and that the public interest therefore does not fall for further consideration in deciding whether one or both of the exceptions apply. This is not in dispute between the parties.

41.       We pause here to stress that, pursuant to the Supreme Court's judgment in KO (Nigeria), the term " unduly harsh" in s.117C(5) therefore sets the threshold that takes account of the weight of the public interest in deportation cases. In other words, the weight of the public interest is fixed by the creation of the categories of "foreign criminal" and the exceptions in s.117C. There is no room for a judge to give such weight as he or she considers is the appropriate weight to the public interest in the particular circumstances of a case.

42.       It is clear from KO (Nigeria) that the term " unduly harsh" in Exception 2 in s.117C(5) of the 2002 Act sets a high threshold. As the Tribunal said in MK (Sierra Leone):

"'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. Furthermore, the addition of the adverb 'unduly' raises an already elevated standard still higher."

43.       It follows from the above that the judge's failure to apply Exception 2 in s.117C(5) and consider whether the claimant's deportation would be unduly harsh on SS means that she failed to give appropriate weight to the public interest. She made her own decision on the weight to be given to the public interest in a free-standing way which, in our judgment, is simply impermissible in view of the judgment of the Supreme Court in KO (Nigeria). This is a fundamental, and fatal, error of law, in our judgment.

44.       Mr Metzer sought to persuade us that the error was not material, referring in detail to the report of Mr Shuttleworth that was before the judge and the judge's findings. There are several difficulties with his submissions which we concluded are not well-founded, for the following reasons:

45.       In the first place, Mr Metzer's submissions ignore the ratio in KO (Nigeria) (see our paras 40-41 above). The judge's assessment of the claimant's Article 8 claim was wholly uninformed by the weight that is accorded to the public interest in deportation by the scheme in paras 398, 399 and 399A, i.e. the creation of the categories of "foreign criminal" and the two exceptions in s.117C. As we have said, she made her own decision on the weight to be given to the public interest in a free-standing way which, as we have also said, is impermissible following the judgment in KO (Nigeria).

46.       In the second place, Mr Metzer was, in effect, suggesting that the judge's consideration of the best interests of SS was equivalent to a proper consideration of the relevant threshold in deciding whether the claimant's deportation would be unduly harsh on SS. However, the fact is that it is impossible to equate the two. Consideration of the best interests of a child is part of an assessment of whether deportation would be unduly harsh on the child but the fact is that the two are separate considerations. Furthermore, there is an applicable threshold in deciding whether the impact of a parent's deportation will be unduly harsh on a child whereas there is no threshold applicable in deciding what is in the best interests of a child.

47.       Thirdly, given the high threshold applicable in deciding whether the impact on SS of the claimant's deportation would be unduly harsh, it simply cannot be said, on the evidence before her including the evidence of SC and (which we accept the judge did take into account) the report of Mr Shuttleworth that, if the judge had considered whether Exception 2 applied and decided whether deportation would be unduly harsh on SS, she would inevitably have reached the same conclusion. We have to be circumspect in what we say about the content of the evidence of SC and Mr Shuttleworth, given that the decision will be re-made in the Upper Tribunal (see below), less it be said that we have pre-judged their evidence in advance of the resumed hearing. We can and do say, however, that the evidence is such that the judge may or may not have concluded that it would be unduly harsh on SS if the claimant is deported. What is clear is that it is not inevitable that she would have concluded that deportation would be unduly harsh on SS. This is what Mr Metzer would need to establish in order to persuade us that the judge would have reached the same conclusion, which he failed to do.

48.       This is especially so given that, at para 30 of her decision, the judge said that the best interests of SS and the age of the offence amount to " exceptional circumstances that just tips the balance against the public interest in [the claimant's] removal". Not only does this make clear that the threshold she applied was the different one of "exceptional circumstances" applicable in a free-standing consideration of Article 8 outside the Immigration Rules, she concluded that the two factors she mentioned at para 30 (the best interests of SS and the age of the offence) " just tipped the balance..." (our emphasis).

49.       Accordingly, in our judgment, there is no room for any view to be taken of the judge's error in failing to treat the claimant as a foreign criminal other than that it was material, irrespective of Grounds 2, 3 and 4. For the reasons given above, we reject Mr Metzer's submission that the judge made a finding, at least by implication, that it would be unduly harsh on SS if the claimant were to be deported.

50.       Accordingly, it is not necessary, strictly speaking, for us to rely upon Grounds 2, 3 and 4 to set aside the judge's decision.

51.       However, we will proceed to consider Grounds 2-4.

52.       We agree with Mr Clarke that Ground 2 follows from Ground 1. As a consequence of the error she made in relation to Ground 1, which we have decided was material in itself, we are satisfied that the judge materially erred in law by failing to give adequate reasons for her finding that family life could not continue in Albania.

53.       We note that Mr Clarke said that he was restricted in arguing that it would be reasonable for SS to relocate outside the territory of the European Union due to Home Office guidance to the effect that British citizen children should not be expected to leave the territory of the European Union. Mr Metzer submitted that the Home Office guidance was relevant in deciding proportionality. However, we are bound by the judgment of the Supreme Court in KO (Nigeria). At para 44 of KO (Nigeria), the Supreme Court held that the concession in Sanade was made in error. Accordingly, the Secretary of State's guidance cannot bind judges of the First-tier Tribunal and the Upper Tribunal.

54.       Ground 2 is therefore established.

55.       In relation to Ground 3, Mr Metzer's submissions and the submissions in the Reply are misconceived as they ignore the judgment of the Court of Appeal in Rhuppiah to the effect that the fact that a person can speak English is a neutral factor. The judge therefore plainly erred in taking into account in the claimant's favour the fact that he speaks English. On its own, this may not have been material to the outcome, if the judge had considered Exception 2 and not made the material errors she made in relation to Grounds 1 and 2. However, the fact is that she did make those material errors. Her error in relation to Ground 3 simply adds to the already determinative case for setting aside her decision.

56.       We are satisfied that there is no substance in Ground 4 given, as Mr Metzer submitted, there was no evidence before the judge that the claimant and his family were a burden on the taxpayer and that he is dependent on SC.

57.       For all of the above reasons, we set aside the decision of Judge Thomas to allow the appeal on human rights grounds in relation to the claimant's rights under Article 8.

58.       We direct that:

(i) The judge's summary of the evidence she heard at paras 5-9 of her decision shall stand as a record of the evidence given to the First-tier Tribunal.

(ii) The following findings shall also stand as Mr Metzer submitted:

a) at para 23, that the claimant has a genuine and subsisting relationship with SC and SS.

b) at paras 24, the findings made by the judge as follows:

"... Despite her age, [SS] will be familiar with [the claimant] as her father. She has a real relationship with her maternal grandparents who are settled in the UK. As a British citizen she is entitled to the benefits and entitlements of her nationality. Her best interests are served with her remaining in the care of both parents in the UK".

59.       Mr Metzer and Mr Clarke agreed that, in the event that we concluded that the judge had materially erred in law and set aside her decision, the Upper Tribunal should re-make the decision on the appeal. We see no reason why the appeal should be remitted to the First-tier Tribunal.

60.       Since the Upper Tribunal will be re-making the decision on the claimant's appeal, the parties' attention is drawn to the revocation provisions in paras 390-392 which, it would seem, are applicable notwithstanding that the claimant is presently in the United Kingdom, in addition to paras 398, 399 and 399A and the exceptions in s.117C of the 2002 Act. In addition, as stated above, the Upper Tribunal is bound by para 44 of the Supreme Court's judgment in KO (Nigeria).

61.       This appeal will be listed for a further (or resumed) hearing before Upper Tribunal Judge Gill, sitting alone.

DIRECTIONS

At least fourteen calendar days before the hearing date, the claimant to file and serve the following in a paginated and indexed bundle:

i) witness statements of any oral evidence to be called at the hearing, such statements to stand as examination-in-chief;

ii) any other evidence to be relied upon;

iii) skeleton argument identifying all relevant issues and citing relevant authorities.

 

Signed Date: 23 January 2019

Upper Tribunal Judge Gill

 

 



[1] The "Error of law decision" promulgated on 25 January 2019 incorrectly stated (at para 1) that the appeal was against a decision to refuse to revoke a deportation order signed on 8 January 2010


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