Upper Tribunal (Immigration and asylum chamber), 2019-03-08, HU/06132/2018
| Jurisdiction | UK Non-devolved |
| Date | 08 March 2019 |
| Published date | 18 April 2019 |
| Hearing Date | 15 February 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/06132/2018 |
Appeal Number: HU/06132/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06132/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 15 February 2019 |
On 08 March 2019 |
Before:
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE GILL
Between
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Appellant |
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And
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Mr H A (ANONYMITY ORDER MADE) |
Respondent |
Representation:
For the Appellant: In person.
For the Respondent: Mr Z Malik, of Counsel, instructed by the Government Legal Department.
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 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.
We make this order in order to protect the identities of the appellant's minor children.
The parties at liberty to apply to discharge this order, with reasons.
DECISION AND REASONS
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This is the re-making of the decision on the appeal of Mr H A who, for convenience, we will refer to hereafter as the "appellant". The appellant is a national of Iraq born on 2 April 1980. His appeal against a decision of the Secretary of State (who we shall hereafter refer to as the "respondent") of 26 February 2018 (hereafter the "February 2018 Decision Letter") to refuse his human rights claim lodged on 23 January 2018 and therefore to maintain a deportation order signed against him on 31 May 2017 was allowed by Judge of the First-tier Tribunal Gurung-Thapa on human rights grounds in a determination promulgated on 1 October 2018 following a hearing on 13 August 2018. Permission to appeal to the Upper Tribunal was granted by the Upper Tribunal in a decision dated 11 December 2018.
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At a hearing on 15 January 2019 before Lane J (President) and Upper Tribunal Judge Coker, the Upper Tribunal decided that Judge Gurung-Thapa had materially erred in law in reaching her decision to allow the appellant's appeal on human rights grounds (Article 8). The Upper Tribunal decided to set aside the judge's decision.
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This appeal was then re-listed for hearing on 13 February 2019 and 15 February 2019 in a list comprising three other appeals (including MS (Philippines) (PA/09214/2017)) which raised issues that required consideration of the judgment of the Supreme Court in KO (Nigeria) and others v SSHD [2018] UKSC 53.
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The appellant's family life claim is based in his relationship with his partner, Ms NT, a British citizen born on 22 October 1985, and their three children born, respectively, on 17 October 2011, 6 May 2014 and 8 November 2016. The appellant also has a step-daughter (born on 21 April 2004) who is his partner's child. The step-daughter does not live with the appellant and his partner. She lives with his partner’s mother who lives nearby. The step-daughter visits the appellant and his partner and also stays with them at weekends. The appellant’s private life claim is based on private life developed since he first entered the United Kingdom on 7 July 2000 and difficulties he says he will experience on reintegration in Iraq.
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The respondent made the deportation order following the appellant's conviction on 15 March 2010 at Chelmsford Crown Court of two offences of assisting unlawful immigration and possessing an improperly obtained identity card and one offence of failing to surrender to custody at the appointed time, for which he received a total sentence of 16 months' imprisonment. According to the judge's sentencing remarks, the appellant was trying to arrange the illegal entry into the United Kingdom of his mother and brother.
Applicable provisions
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Given that the appellant received a sentence of at least 12 months, he falls within the definition of "foreign criminal" in s.117D(2) of the Nationality, Immigration and Asylum Act 2002 (the "2002 Act"). As a consequence, s.117C of the 2002 Act is applicable.
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Furthermore, given that this appeal is an appeal against the respondent's decision in the February 2018 Decision Letter to refuse the applicant's application for leave to remain on human rights grounds and to maintain the deportation order made against him on 31 May 2017, paras 390, 390A and 391A of the Immigration Rules apply. Para 390 provides that an application for revocation will be considered in the light of all of the circumstances including: (i) the grounds upon which it was made; (ii) any representations made in support of the revocation; (iii) the interests of the community, including the maintenance of effective immigration control; and (iv) the interests of the applicant including any compassionate circumstances.
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Para 390A states 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 in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors.
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As can be seen from the relevant provisions, which are set out in the Appendix to this decision, s.117C makes provision for two exceptions which are available in cases where a foreign criminal has not been sentenced to a period of imprisonment of 4 years or more. Exception 1 as set out in s.117C(4) is the private life exception and Exception 2 as set out in s.117C(5) is the family life exception. Para 399A of the Immigration Rules sets out in more detail the criteria to be satisfied in relation to Exception 1. Para 399(a) and (b) set out in more detail the criteria to be satisfied in relation to Exception 2.
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Section 117C(6) provides that, in the case of a foreign criminal who has been sentenced to a period of imprisonment of at least 4 years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. Para 398 makes a similar provision.
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However, 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 issues
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The respondent accepts that the appellant's partner and his children are British citizens.
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In relation to Exception 2, the respondent accepted in the February 2018 Decision Letter that the appellant has a genuine and subsisting relationship with his partner and his children and that it would be unduly harsh for the partner and the children to relocate to Iraq.
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The respondent did not accept that the appellant satisfied any of the criteria for Exception 1 to apply, nor did he accept that there were very compelling circumstances, over and above Exceptions 1 and 2.
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Accordingly, the issues before us are as follows:
i) In relation to Exception 2, whether it would be unduly harsh for the appellant's partner and/or his children to remain in the United Kingdom without him.
ii) Whether Exception 1 applies.
iii) If Exceptions 1 and 2 do not apply, whether there are very compelling circumstances, over and above the exceptions.
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The appellant is entitled to succeed in his appeal if he satisfies any one of (i)-(iii) above.
Immigration history
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The appellant entered the United Kingdom clandestinely on 7 July 2000. He claimed asylum on the same day. His asylum claim was refused on 15 August 2003. His appeal against the decision was dismissed on 19 January 2004. He exhausted his appeal rights on 5 February 2004.
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Both before and after his convictions of 15 March 2010, representations were made to the Secretary of State on his behalf. Following his convictions in May 2010, he was notified of his liability to deportation, the first such notice being dated 29 April 2010. Eventually, on 31 May 2017, a deportation order was signed against him. By a decision dated 1 June 2017 (hereafter the "June 2017 Decision Letter"), his further claim to fear persecution and his human rights claim were refused....
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