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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 >> HU145182019 [2021] UKAITUR HU145182019 (1 October 2021)
URL: http://www.bailii.org/uk/cases/UKAITUR/2021/HU145182019.html
Cite as: [2021] UKAITUR HU145182019

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Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/14518/2019 (V)

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House (by remoted video means)

Decision & Reasons Promulgated

On 26 th July 2021

01 October 2021

 

 

 

Before

 

UPPER TRIBUNAL JUDGE JACKSON

 

 

Between

 

JSJ

(ANONYMITY DIRECTION MADe)

Appellant

And

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Ms D Revill of Counsel, instructed by Ennon & Co solicitors

For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

1.              This has been a remote hearing which has not been objected to by the parties. The form of remote hearing was by video, using Teams. There were no audio or visual difficulties during the course of the hearing. A face to face hearing was not held to take precautions against the spread of Covid-19 and as all issues could be determined by remote means. The file contained some of the papers in hard copy, with the Appellant's bundle and core bundle being available electronically.

2.              The Appellant appeals with permission against the decision of First-tier Tribunal Judge Davey promulgated on 22 October 2020, in which the Appellant's appeal against the decision to refuse his human rights claim in the context of deportation dated 16 August 2019 was dismissed.

3.              The Appellant is a national of Grenada, born on 10 March 1985, who arrived in the United Kingdom at the age of 14 on 20 August 1999 with six months leave to enter. He was subsequently granted indefinite leave to remain in line with his mother on 12 May 2007 following an application made on long residence grounds.

4.              On 3 July 2003, the Appellant was convicted of possessing a Class B drug for which he was fined and ordered to pay costs.

5.              On 26 April 2006, the Appellant was convicted of driving whilst disqualified, using a vehicle whilst uninsured, taking a motor vehicle without consent and possession of a Class C drug. The Appellant was given a community order, unpaid work requirement, order for costs, disqualification and his driving licence was endorsed.

6.              On 19 December 2006 the Appellant was convicted of driving whilst disqualified and of using a vehicle whilst uninsured; for which he was given a suspended prison sentence of 16 weeks, a curfew requirement, an order for costs and he was disqualified from driving for 12 months with his licence being endorsed.

7.              On 5 April 2007, the Appellant was convicted of possession with intent to supply a Class C drug for which he was given a community order and unpaid work requirement.

8.              On 3 May 2007, the Appellant was convicted on two counts of possession of a Class A drug and of a Class C drug, for which he was given a community order, unpaid work and costs.

9.              On 7 August 2007, the Appellant was convicted of possession of a Class C drug for which he was ordered to pay a fine and costs.

10.          On 15 August 2007, the Appellant was convicted for breach of a community order following from his conviction on 3 May 2007.

11.          On 3 October 2007, the Appellant was again convicted for breach of the community order following from his conviction on 3 May 2017.

12.          On 22 September 2008, the Appellant was convicted of possession of a Class A drug and a Class C drug, for which he was fined and ordered to pay costs. On the same date the Appellant was also convicted of driving otherwise than in accordance with a licence and for using a vehicle whilst uninsured; with no separate penalties beyond disqualification and having his driving licence endorsed.

13.          On 30 March 2009, the Appellant was convicted of possession of a Class B drug for which he was fined £100.

14.          On 10 December 2009, the Appellant was convicted of driving a motor vehicle taken without consent; using a vehicle whilst uninsured; driving otherwise than in accordance with a licence and possession of a Class B drug. The Appellant was fined, ordered to pay costs and a victim surcharge and had his driving licence endorsed.

15.          On 24 March 2010, the Appellant was convicted of failing to take reasonable steps to ensure the needs of an animal (2 counts), of failing to take steps to prevent unnecessary suffering of an animal and possessing without exemption a Pit Bull Terrier, Japanese Tosa or other designated fighting dog.

16.          On 26 March 2010, the Appellant was convicted of possession with intent to supply a Class C drug for which he was sentenced to six months' imprisonment, with a further conviction of possession of a Class C drug for which he was sentenced to one month imprisonment to run concurrently.

17.          The Appellant was notified of his liability to deportation on 28 April 2010 and invited to submit representations as to why he should not be deported. The Respondent notified the Appellant reasons for his deportation on 24 June 2010. The Appellant's appeal against that decision was successful in a decision promulgated on 2 November 2010.

18.          On 16 September 2010, the Appellant was convicted of wounding (committed whilst on bail) for which he was sentenced to a suspended sentence of 10 months' imprisonment and subject to a supervision order.

19.          On 29 September 2011, the Appellant was convicted of possession of a controlled Class B drug, for which he was fined and ordered to pay a victim surcharge and costs.

20.          On 17 September 2013, the Appellant was convicted of possession of a controlled Class B drug, for which he was fined and ordered to pay a victim surcharge and costs.

21.          On 6 December 2013, the Appellant was convicted of failing to take reasonable steps to ensure the needs of an animal, further to which he was disqualified from owning or keeping a pet and ordered to pay costs.

22.          On 23 January 2014, the Appellant was convicted of possession of a controlled Class B drug, for which he was made subject to a community order and a curfew requirement and ordered to pay costs and a victim surcharge.

23.          On 21 September 2015, the Appellant was convicted of possession of a controlled Class B drug and also two counts of possession of a Class A drug (committed whilst on bail); for which the Appellant was held on remand and then subject to a community order, curfew requirement and various financial penalties. On the same date the Appellant was disqualified from driving for a period of 28 days for driving without due care and attention.

24.          On 26 January 2016, the Appellant was convicted of two counts of possession of a class A drug (cocaine and MDMA) and of driving without due care and attention; for which he was given a suspended prison sentence of four weeks, an unpaid work requirement, financial penalties and disqualified from driving for 15 months.

25.          On 13 December 2018, the Appellant was convicted at Harrow Crown Court of possession with intent to supply a Class A drug (cocaine), for which he was sentenced to 40 months' imprisonment; with a concurrent five months' imprisonment for possession of a Class C drug.

26.          The Appellant was again notified of his liability to deportation following these latest offences, with submissions made on his behalf on 8 January 2019. In these submissions, the Appellant relied on his relationship with his partner and two children, born in 2007 and 2013; all of whom are British citizens. It is the decision of the Respondent to refuse the Appellant's human rights claim against deportation dated 16 August 2019 which is the subject to of his appeal.

27.          The Respondent refused the application on 16 August 2019 (making a Deportation Order on the same date) on the basis that although the Appellant's relationship with his partner and two children was accepted; it would not be unduly harsh for them to relocate to Grenada with him, nor for them to remain in the United Kingdom if he were deported. Further, the Applicant did not meet the exceptions to deportation on private life grounds because he had not integrated in to the United Kingdom and there would be no very significant obstacles to his reintegration on return to Grenada. Finally, the Respondent did not accept that there were any very compelling circumstances to outweigh the public interest in deportation taking into account the Appellant's criminal history, his family relationships (including the medical evidence and fact that the family did not live together), the Appellant's arrival in the United Kingdom as a child and his ability to integrate on return. The Respondent also referred to the previous First-tier Tribunal decision in 2010.

28.          Judge Davey dismissed the appeal in a decision promulgated on 22 October 2020 on all grounds. In essence, the Appellant's family relationships were accepted and although it was found to be unduly harsh for any of the family members to relocate with the Appellant to Grenada; it would not be unduly harsh for them to remain in the United Kingdom without him. Adverse credibility findings were made against the Appellant and little weight was given to the Appellant's partner's or mother's evidence with the decision highlighting the lack of evidence available on specific issues. Overall, the Tribunal did not find that the Appellant met any of the exceptions to deportation, nor were there very compelling circumstances to outweigh the public interest in deportation.

The appeal

29.          The Appellant appeals on six grounds as follows:

(i)             that the First-tier Tribunal materially erred in law in failing to apply the Court of Appeal's decision in HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176 which is not inconsistent with the Supreme Court decision in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53;

(ii)          that the First-tier Tribunal materially erred in law in failing to have regard to the impact of the Appellant's imprisonment on his daughter's education where there was specific evidence from her school about her being late every day during this time;

(iii)        that the First-tier Tribunal materially erred in law in failing to give any reasons for finding that the Appellant's partner 'played up' her evidence;

(iv)        that the First-tier Tribunal materially erred in law in failing to consider the delay in consideration of the application for indefinite leave to remain, but for which the Appellant would have been lawfully resident in the United Kingdom for more than half of his life and he would have been lawfully resident at the time he commenced his relationship;

(v)          that the First-tier Tribunal materially erred in fact as to the period in which the Appellant had not reoffended, which amounted to a period of 18 months following his arrest on 3 June 2017 from when he was in employment up until he was imprisoned;

(vi)        that the First-tier Tribunal materially erred in law in failing to have regard to all relevant matters when considering whether there were very compelling circumstances to outweigh the public interest in deportation, in particular the Maslov criteria, that the Appellant was a settled migrant, his relationship with his mother and despite the relative seriousness of his offending, that he was sentenced at the bottom end of the range for sentence.

30.          At the oral hearing, Ms Revill adopted and relied upon the written grounds of appeal and the Applicant's reply to the Respondent's rule 24 notice. In relation to the first ground of appeal, it was submitted that it was impossible to tell what test the Tribunal applied when considering whether it would be unduly harsh on the Appellant's children to remain in the United Kingdom without him - it not being clear that KO (Nigeria) has been applied, let alone as interpreted in HA (Iraq), given that the latter was discounted by the Tribunal as being relevant only to an individual child rather than containing any principles of general application. Ms Revill accepted that if the First-tier Tribunal had stated that the test set out in KO (Nigeria) as applied in HA (Iraq) had been expressly stated, then there would be no error of law in the decision as in substance nothing in the decision suggests that the wrong test has been applied. However, it was submitted that there was a clear error in the decision in failing to do so in the context of this appeal given the nature of what was said about HA (Iraq).

31.          In relation to the second ground of appeal, the First-tier Tribunal stated at paragraph 26 of the decision that there was no evidence of any adverse impact on the Appellant's younger child during his period of imprisonment. However, there was evidence from the Appellant's partner about being on her own which led to difficulties getting the older child to school leading to the younger child always or normally being late to school, which had an adverse impact on her behaviour at school and educational progress. This evidence was capable of indicating a tangible adverse impact on the child's development which should have been considered by the Tribunal. Ms Revill submitted that in the rule 24 response, the Respondent sought to dispute the evidence but the Appellant's partner was not cross-examined on this point. Ms Revill accepted that there was a conflict in the evidence as to whether the child was late to school every day or 27 times in the academic year; which was unexplained, but emphasised the point that the First-tier Tribunal simply did not consider any of this at all.

32.          In relation to the third ground of appeal, whilst it was accepted that it may have been open to the First-tier Tribunal to find that the Appellant's partner 'played up' her evidence, it was an error of law for no reasons to be given for that finding in the decision.

33.          In relation to the fourth ground of appeal, Ms Revill emphasised the cumulative assessment required of the factors identified even in circumstances where individually they may not be sufficient. The Appellant relies on the relevance of the delay in the consideration of his application for indefinite leave to remain in reliance on the Court of Appeal's decision in CI (Nigeria) v Secretary of State for the Home Department [2019] EWCA Civ 2027 even though it was accepted that in that case that but for failing to meet that one exception in relation to CI's immigration history, he would otherwise have met the private life exception to deportation and in the present appeal, it was accepted that the Appellant could not demonstrate very significant obstacles to reintegration.

34.          In relation to the fifth ground of appeal, it was submitted that there was no evidence before the First-tier Tribunal of any criminal offending before the Appellant was imprisoned most recently, in the 18 months between being granted bail and being sentenced. This period of good conduct was relevant to the overall assessment to be undertaken by the First-tier Tribunal, but in the decision there is reference only to the period after his release on licence as well as an inference of the Appellant using drugs and being involved in criminality whilst working for his mother; but there was no evidence of any offending whilst the Appellant was on bail.

35.          As to the final ground of appeal, Ms Revill listed a number of matters in the Appellant's favour which were not addressed by the First-tier Tribunal or taken into account in the assessment. These included the fact that the Appellant was a settled migrant; that he enjoyed family life with his mother (even though accepted as not being family life to engage Article 8(1) of the European Convention on Human Rights); and the relative seriousness of the Appellant's criminal offence (whilst there is no dispute that it was a serious offence as reflected in the sentence imposed, it was at the lower end of the sentencing scale). On the latter, Ms Revill submitted that the type of offence a person commits is not relevant to the strength of the public interest in deportation and only the length of sentence can be taken into account as all other matters have been considered by the sentencing Judge.

36.          On behalf of the Respondent, Ms Everett relied on the rule 24 response and made additional oral submissions. The first ground of appeal was said to be without merit in the absence of any indication in the decision that the wrong test had been applied as to whether the Appellant's deportation would be unduly harsh on his children and this was not a case where the First-tier Tribunal had fallen into the trap identified by the Court of Appeal in HA (Iraq).

37.          The second ground of appeal argues that the First-tier Tribunal overlooked certain evidence, however, there was a lack of supporting evidence before the First-tier Tribunal. It is a self-evident point that getting a child to school on time is a practical difficulty that could be overcome and there was nothing to suggest that it was a parent specifically that had to take the child to school. In any event, this would not materially affect the outcome of the appeal as there must be a solution to that practical difficulty or assistance available.

38.          Whilst Ms Everett expressed some sympathy with the third ground of appeal, she submitted it was not made out as adequate reasons had been given as to the assessment of the evidence in the context of this claim and in particular the lack of corroborative evidence.

39.          In circumstances where the Appellant would not face very significant obstacles to his reintegration on return to Grenada, the Respondent's position was that whether or not the Appellant had spent more than half of his life lawfully in the United Kingdom was immaterial and therefore there was no error of law on the fourth ground of appeal.

40.          The evidence in relation to the Appellant's offending, drug use or criminality before the First-tier Tribunal was not entirely clear. It would seem that he had not been arrested or convicted for any further offences but unclear whether he has been involved in drugs or other illegal activity. In any event, whether the Appellant had not offended in this particular period prior to his imprisonment was, it was submitted, unlikely to tip the balance in his favour given his extensive criminal history.

41.          Ms Everett submitted in relation to the final ground of appeal that it is widely accepted and considered by the courts that drugs offences are particularly serious, bringing a particular form of misery and wider adverse impact on society. In relation to the Appellant's relationship with his mother, her evidence was considered by the First-tier Tribunal in paragraph 38 of the decision and it is unclear how it is said her evidence was not understood. The Appellant's offending was during the period in which he was living with his mother. Finally, in relation to the Maslov criteria, whilst there is a typographical mistake in the decision as to length of time the Appellant has been in the United Kingdom, his immigration history was set out elsewhere correctly and even cumulatively, it is difficult to see how all of these factors could have materially affected the outcome of the appeal.

Findings and reasons

42.          The first ground of appeal is based on form over substance and what appears to be a mis-reading of the First-tier Tribunal decision. Ms Revill was unable to identify any points of substance in the decision which either expressly or by inference gave any indication that the wrong test for whether deportation would be unduly harsh on the Appellant's children was in fact applied by the First-tier Tribunal. There are no such indicators to be found anywhere in the decision. In submissions, Ms Revill expressly confirmed that if the First-tier Tribunal had expressly set out the test or had stated that the test was that in KO (Nigeria) as applied in HA (Iraq), that there would be no error of law on this point. This amounts to a criticism of form rather than identifying any arguable error of law.

43.          The First-tier Tribunal set out the relevant test to be applied in paragraph 31 as follows:

"31. In considering this matter I therefore turn to the case law, particularly KO (Nigeria) [2018] UKSC 53 and HA (Iraq) [2020] EWCA Civ 1176. I start from the premise that the decision in KO is the law as it is stated to be and that the later views expressed in the Court of Appeal, which have not apparently been accepted in themselves by the Supreme Court, are the interpretation currently put upon the consideration of what is unduly harsh and to draw away from setting in stone or in some determinative way the factors that may be considered. Rather it seemed to be that the decision in HA (Iraq) essentially concentrated on the individual children, rather than the generality of best interests of children, the children of a foreign criminal. It was pointed out that inevitably in the nature of deportation if it occurred that it will have significant consequences for a deportee's family."

44.          Contrary to the submissions made on behalf of the Appellant, this paragraph does not in any way discount the application of HA (Iraq), fail to apply it or suggest that it is confined to its facts as opposed to being of any wider application. Expressly, the paragraph sets out exactly what Ms Revill submitted should have been done when it states in terms that the law is as stated in KO (Nigeria), with the views expressed in HA (Iraq) being the interpretation currently put upon consideration of what is unduly harsh. There is no error of law in the way that the current authority or test is expressed, with the First-tier Tribunal emphasising that what is required is an assessment of the individual children rather than any general position as to the best interests of children whose parent is facing deportation. The decision as a whole goes on to do so and the First-tier Tribunal has not fallen in to the trap identified in HA (Iraq) of making any comparative assessment with the generality of the best interests of children, instead, it focuses in detail on the Appellant's children.

45.          The second ground of appeal concerns the First-tier Tribunal's assessment of the evidence of the impact of the Appellant's imprisonment and in particular whether it failed to have regard to the impact on his daughter's education due to her being late to school during this period. The sole evidence relied upon by the Appellant in this ground of appeal is a letter from his daughter's school dated 29 October 2019 which included the following:

"This year, [the Appellant's daughter] has been struggling with school and it is becoming increasingly difficult to get her to follow her regular routines. She has been late for school ever day. (I understand it is extremely difficult for mum to get [the Appellant's daughter] to school on time and get her older brother on his bus at the same time). When late, [the Appellant's daughter] is missing important parts of the morning and vital learning. This includes reading, her daily routine log and her sensory group. When missing these elements of her day, she becomes unsettled and difficult to manage. It is so important she is at school on time to attend to these sessions for her to achieve the outcomes set in her Educational Health Care Plan (EHCP)."

46.          This evidence had clearly been considered by the First-tier Tribunal given the references in paragraphs 33 and 34 to the practical problems arising from the Appellant's imprisonment, who had previously taken some part in getting the children to and from school and to the lack of evidence as to how problems in terms of daily arrangements being made could be addressed if needed. These references could only be to the evidence above given that no other specific issues had been identified in the course of the appeal before the First-tier Tribunal or the Upper Tribunal. As identified by the First-tier Tribunal, this was an issue of practicality and the evidence did not suggest that there was any impact from the Appellant specifically not being available or personally assisting with the school runs; just that it was difficult for the Appellant's partner practically to get both children to school herself without some other assistance. There is nothing to suggest that alternative arrangements were considered or would not be appropriate.

47.          Whilst the First-tier Tribunal decision did not expressly refer to this evidence from the school in paragraphs 14, or 20 to 26 of the decision; it did set out in detail the difficulty of the lack of evidence on certain matters and the type and quality of evidence relied upon in relation to the children. The First-tier Tribunal expressly noted the lack of medical evidence or assessment of the impact of the Appellant's imprisonment or likely impact of his deportation on the children. In particular, in paragraph 21 the First-tier Tribunal refers to the lack of any evidence from the school as to the impact of deportation on the children's development, education or emotional circumstances and no assessment in relation to the Appellant's son of any potential impact on his development if the Appellant were deported. The First-tier Tribunal also gave detailed consideration to the witness evidence on this point and noted that it was lacking in detail as to the likely impact on the children.

48.          It is also of note that whilst the letter dated 29 October 2019 referred to the Appellant's daughter being late every day, no reference period for that was given and it is clear from her school report for the previous academic year that she was late a total of 27 times in the year (which whilst not insignificant, was very far from every day). The Appellant was in prison from December 2018 and therefore for over two thirds of that academic year, without it seems the same practical impact on the children or his daughter in particular.

49.          In all of these circumstances, I do not find that that the First-tier Tribunal erred in finding that there was a lack of evidence of any harm to the Appellant's children during his imprisonment. Whilst there was clearly a recognised impact on them an the family generally and in terms of the practical daily arrangements, the evidence went no further than this. In any event, there is no challenge to the First-tier Tribunal's findings as to the lack of evidence of the likely impact of the Appellant's deportation on the children (see in particular paragraph 28 of the decision) and the particular difficulty identified in the evidence from the school is dealt with at paragraphs 33 and 34 of the decision with the conclusion that such matters were not of such weight to be determinative (in the absence of any other evidence) in the Appellant's favour as to whether deportation would be unduly harsh on his children remaining in the United Kingdom. For these reasons, particularly reading the decision as whole, there is no material error of law on the second ground of appeal.

50.          The third ground of appeal concerns the First-tier Tribunal's adequacy of reasons for finding that the Appellant's partner 'played up' her evidence in paragraph 38 of the decision, which included the following: "I did not find, other than the understandable concern that [the Appellant's partner] now has, that she was a particularly useful witness on the generality of difficulties that she faced and rather those matters it seemed to me were somewhat played up because of her genuine concern about the impact for her and the children of the Appellant's removal."

51.          This finding in paragraph 38 does not as such make any adverse credibility finding against the Appellant's partner and simply draws together the matters raised repeatedly in previous paragraphs in the decision as to the lack of detail the Appellant's partner's evidence and the almost complete lack of any supporting evidence or assessment. When read as a whole, adequate reasons are given by the First-tier Tribunal for the overall assessment of the usefulness of the Appellant's partner's evidence which did not need to be repeated again in the concluding remarks on this in paragraph 38. In any event, it is very difficult to see how any lack of reasoning on this point could have had any material bearing on the outcome of the appeal; the reasons for which are clearly conveyed to the Appellant in the decision read as a whole.

52.          The fourth ground of appeal concerns the First-tier Tribunal's assessment of the period between 2001 and 2007 before the Appellant was granted indefinite leave to remain in the United Kingdom and in particular whether the delay in leave being granted should have been taken into account given that, but for the delay, the Appellant could have satisfied the requirement to have been lawfully resident in the United Kingdom for more than half of his life (therefore meeting paragraph 399A(a) of the Immigration Rules and section 117C(4)(a) of the Nationality, Immigration and Asylum Act 2002; one of the three requirements of the private life exception to deportation). There is no dispute that in any event, the Appellant could not meet the private life exception to deportation given the unchallenged findings that he would not face very significant obstacles to reintegration on return to Grenada. However, the Appellant relies on this point, together with the weight to be attached to his relationship which, if granted leave sooner would have been given more weight (as it would have commenced when he was here lawfully), in relation to the overall assessment of whether there were very exceptional circumstances to outweigh the public interest in deportation.

53.          The Appellant specifically relies on the Court of Appeal's decision in CI (Nigeria) as to matters which are relevant. However, the circumstances in that case are materially different to the present one given that in CI (Nigeria) the Appellant would have met the exception to deportation on private life grounds but for the length of his lawful leave to remain in the United Kingdom which was determined by matters beyond his control as a child. In the present case, it is accepted that the Appellant could not meet this exception and therefore on any view, the potential weight that could be applied to any delay would be much less than the potential relevance of such a factor on the facts in CI (Nigeria).

54.          The First-tier Tribunal in paragraph 35 found that the late grant of indefinite leave to remain in 2007 was not material to the overall assessment undertaken and little weight was given to this factor; in particular because the delay had no bearing at all on the Appellant's conduct in the United Kingdom. The lack of lawful status here or delay in decision making had no claimed relevance to the Appellant's offending.

55.          The First-tier Tribunal did therefore consider the issue of delay but simply attached little weight to it. Although there is no further or express consideration in the final balancing exercise undertaken by the First-tier Tribunal of whether the delay in granting indefinite leave to remain to the Appellant up to 2007 should add to the factors in the Appellant's favour or reduce the weight to be attached to the public interest in deportation and it is difficult to see how it could do either in any material or substantive way. This is particularly so in circumstances where the Appellant could not in any event meet the private life exception to deportation; where the Appellant's immigration history and length of residence in the United Kingdom is expressly set out (albeit with one typographical error in relation to this) and where the focus in the appeal was on the Appellant's children rather than on his relationship with his partner (and no reduction in the weight to be attached to that appears to have been made on the basis that the relationship commenced at a time when the Appellant had no leave to remain, even though it should have been in accordance with section 117B(4)(b) of the Nationality, Immigration and Asylum Act 2002).

56.          In these circumstances, there is no material error of law on the fourth ground of appeal. The weight to be attached to a particular matter is primarily for the First-tier Tribunal; it was not irrational to attach little weight to this aspect of the claim and even if it was an error of law for the First-tier Tribunal not to attach greater weight to it; the relevance of this part of the claim within the appeal as a whole is at best very marginal and could not have made any material difference to the outcome.

57.          On the fifth ground of appeal, the First-tier Tribunal did not err in fact as to the period in which the Appellant had not reoffended. There was no finding that he had reoffended whilst on bail following his arrest, nor that he had only not reoffended since August 2020. In the bail period, the First-tier Tribunal only found that he was at the same time still pursuing his use and involvement with drugs or criminality generally (paragraph 39 of the decision). There is no evidence that the Appellant was not still involved with and taking drugs during this period (to the contrary, the sentencing remarks in 2018 refer to the Appellant's cannabis habit) and that involves criminality generally whether or not the Appellant was convicted of any offence during this period. That finding was open to the First-tier Tribunal to make on the evidence before it and it does not amount to an error of fact as to the period in which the Appellant had not re-offended. This paragraph addresses a slightly different issue.

58.          The First-tier Tribunal referred to being unable to form a view that the Appellant had changed his ways since his release from prison in August 2020 given the shortage of time since then and the previous opportunities to change not being taken. Again, this is a slightly different point to the period over which the Appellant has not reoffended. The findings at paragraph 36 are not indicative that the First-tier Tribunal only took this period since August 2020 into account as a short period without reoffending, particularly in the context of the decision setting out in detail the Appellant's criminal history and circumstances, including assessment of the period of bail between June 2017 and December 2018.

59.          In light of the Appellant's significant history of criminal offending, including offences committed whilst on bail, breach of community orders and continued offending following his successful appeal against deportation in 2010; it is difficult to see in any event how a relatively short period without reoffending whilst on bail since June 2017 even combined with the period following release from prison in August 2020 could be given anything other than little weight in the Appellant's favour in the final balancing exercise. The First-tier Tribunal expresses this in paragraph 41 when it is said that account has been taken of when the last offences were actually committed, but this took the Appellant's claim little further in light of the identified criminality and conduct of the Appellant. For these reasons, there is no material error of law on the fifth ground of appeal.

60.          The final ground of appeal is that the First-tier Tribunal failed to have regard to all relevant matters when conducting the final assessment of whether there were very compelling circumstances to outweigh the public interest in deportation. There is no doubt in this case that there is a very strong public interest in deporting this particular Appellant given his extensive criminal record and the seriousness of the index offence - even if sentencing was at the lower end of the scale, there is no dispute it was a serious offence and even if no account is taken of the particular seriousness of drugs offences and their adverse impact on society.

61.          The only matter identified by the Appellant within this final ground of appeal that was not expressly considered within the First-tier Tribunal's decision was the fact that the index offence resulted in a sentence at the lower end of the sentencing guidelines. The Maslov criteria were in substance all considered, including the nature and seriousness of the offences committed; the Appellant's length of residence in the United Kingdom (including the period of lawful residence following the grant of indefinite leave to remain in 2007); the relatively short period of time since the last offence and conduct during it; and the Appellant's relative ties in the United Kingdom and Grenada. These in particular included his family relationships with his partner and children, as well as his relationship with his mother and the Appellant's age on arrival in the United Kingdom. Following consideration of all of these matters, it was clearly open to the First-tier Tribunal to conclude that there were no very exceptional circumstances to outweigh the public interest in deportation. Even if the First-tier Tribunal expressly considered the relative duration of sentence at the lower end of the scale, that does not detract from the index offence being a serious one which followed a significant history of offences and in the overall scheme, the point is a very minor and marginal one which could not, even cumulatively with all other factors, have rationally led to any other conclusion by the First-tier Tribunal. For these reasons, there is no material error of law on the final ground of appeal.

 

 

Notice of Decision

 

The making of the decision of the First-tier Tribunal did not involve the making of a material error of law. As such it is not necessary to set aside the decision.

 

The decision to dismiss the appeal is therefore confirmed.

 

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

 

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

 

 

 

Signed G Jackson Date 21 st September 2021

 

Upper Tribunal Judge Jackson

 


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