Upper Tribunal (Immigration and asylum chamber), 2016-01-07, DA/01695/2014
|Resolution Date:||January 07, 2016|
|Issuing Organization:||Upper Tribunal (Immigration and Asylum Chamber)|
Appeal Number: DA/01695/2014
(Immigration and Asylum Chamber) Appeal Number da/01695/2014
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 30th November 2015
On 7th January 2016
UPPER TRIBUNAL JUDGE HEMINGWAY
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
mr Shaddai Shalom Smith
(anonymity direction not made)
For the Appellant: Mr S Whitwell (Home Office Presenting Officer)
For the Respondent: Mr E Anyene (Counsel)
DECISION AND DIRECTIONS
The Secretary of State has appealed, with permission, against a decision of a Judge of the First-tier Tribunal (Immigration and Asylum Chamber) (hereinafter the “judge” unless otherwise stated) promulgated on 21st January 2015, following a hearing on 6th January 2015, by which he allowed the appeal of Mr Shaddai Shalom Smith (hereinafter the “claimant”) against a decision of the Secretary of State of 20th August 2014 to make a deportation order by virtue of Section 3(5)(a) of the Immigration Act 1971. The decision followed the claimant’s conviction at Wood Green Crown Court on 22nd December 2010 for an offence of robbery in respect of which he was sentenced to a period of three years’ custody in a young offenders’ institute.
The claimant was also convicted at Havering Magistrates’ Court, on 8th August 2008, on two counts of attempting/making false representations in order to make a gain for himself or another. He was sentenced to a community order in respect of that. In June 2009 he was cautioned in respect of an offence of criminal damage to a car window.
Immigration History and Background Facts
The claimant is a national of Barbados. He was born on 7th March 1990. It has been variously suggested, in the documentation before me, that he first arrived in the UK in 2001 as a visitor (see paragraph 10 of the judge’s determination) or that he first arrived on 26th July 2002 as the dependent child of a work permit holder (see paragraph 7 of the Respondent’s “notice of decision”) In any event nothing turns on the precise date of his arrival and it is clear that he had come to the UK to join his mother who had herself arrived in the UK as a work permit holder having divorced his father.
On 2nd October 2004 the claimant received a grant of leave to remain as a dependent child until 31st October 2007. There followed a further grant, on the same basis, until 7th December 2012.
The claimant formed a relationship with one Miss President (according to her oral evidence the relationship had started in 2007) a dental nurse and British citizen. On 4th June 2011, she gave birth to the couple’s daughter who is, of course, also a British citizen.
The claimant served what he was required to serve of his custodial sentence and was released on 20th January 2012. He rejoined his mother’s household. He has a younger brother, Nathan, who also lives in that household. He did not go to live with Miss President and had not been living with her prior to his incarceration. She lives with the couple’s child. There is evidence that he has maintained contact with the child.
On 6th November 2012 the claimant applied for indefinite leave to remain in the UK on the basis of “long residence”. However, that application was rejected because the correct fee had not been paid. Shortly after, on 20th December 2012, he made a further application for indefinite leave to remain which was again rejected, this time on 23rd January 2013, as the correct fee had not been paid. On 22nd February 2013 a similar application was made but rejected for, essentially, similar reasons. On 14th October 2013 he made another application for indefinite leave to remain outside the Immigration Rules. That application has been considered along with the matters relating to his deportation. Indeed, on 17th June 2014 he was informed of his liability to deportation and the decision to make a deportation order followed on 20th August 2014. He appealed and has, throughout the appeal process, sought to rely upon Article 8 of the European Convention on Human Rights (ECHR) in resisting deportation and in seeking leave.
Relevant Legal Provisions
The relevant legal provisions are Section 117B to D of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) and paragraphs 398, 399 and 399A of the Immigration Rules.
Section 117A to D of the 2002 Act, which came into effect on 28th July 2004, provides as follows:
“117A Application of this Part
(1) This Part applies where a court or Tribunal is required to determine whether a decision made under the Immigration Acts –
(a) breaches a person’s right to respect for private and family life under Article 8 and
(b) As a result would be unlawful under Section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or Tribunal must (in particular) have regard –
(a) in all cases, to the considerations listed in Section 117B and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in Section 117C.
(3) In sub-Section (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.
(4) Little weight should be given to –
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established 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,
(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.
(7) The considerations in sub-Sections (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) is settled in the United Kingdom (within the meaning of the Immigration Act 1971 – see Section 33(2)A 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,
(c) who –
(i) has been sentenced to a period of imprisonment of at least twelve months, or
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.”
It is also necessary to set out the contents of paragraph 398, 399 and 399A of the Immigration Rules. Since both the decision under appeal and the subsequent hearing before the judge took place after 28th July 2014 it is beyond dispute that the Rules in the form that they were from that date are the ones which apply. The relevant parts, in the context of this claimant’s circumstances, read as follows;
“398. Where a person...
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