Upper Tribunal (Immigration and asylum chamber), 2019-04-11, HU/08516/2017
| Jurisdiction | UK Non-devolved |
| Date | 11 April 2019 |
| Published date | 03 June 2019 |
| Hearing Date | 11 March 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/08516/2017 |
Appeal Number: HU/08516/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08516/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 11th March 2019 |
On 11th April 2019 |
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Before
UPPER TRIBUNAL JUDGE JACKSON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
CC
(ANONYMITY DIRECTION MADe)
Respondent
Representation:
For the Appellant: Mr Tufan, Senior Home Office Presenting Officer
For the Respondent: Ms A Nnamani of Counsel instructed by Samuel Louis Solicitors
DECISION AND REASONS
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CC appeals against the decision of First-tier Tribunal Judge Davey promulgated on 5 October 2018 in which his appeal against the decision to refuse his human rights claim dated 26 July 2017, (in the context of a deportation order made on 25 July 2017, pursuant to section 33 of the UK Borders Act 2007), was allowed. For ease I continue to refer to the parties as they were before the First-tier Tribunal, with CC as the Appellant and the Secretary of State as the Respondent.
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For the reasons set out in the decision annexed, I found an error of law in the decision of the First-tier Tribunal, set the decision aside and listed a further hearing for the re-make of the Appellant’s appeal which came before me on 11 March 2019. The error of law decision sets out the factual and procedural background to this appeal which will not be repeated herein save as where relevant or necessary.
The appeal
Applicable law
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The requirements where a person claims that their deportation would be contrary to the United Kingdom’s obligations under Article 8 of the European convention on Human rights in so far as they are set out in the Immigration Rules and relate to this appeal are:
“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
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…
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the deportation of the person from the UK is conducive to the public good 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
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… 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 –
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the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
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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
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it would be unduly harsh for the child to live in the country to which the person is to be deported; and
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it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
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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
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the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
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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
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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 –
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the person has been lawfully resident in the UK for most of his life; and
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he is socially and culturally integrated in the UK; and
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there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”
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By virtue of section 117A of the Nationality, Immigration and Asylum Act 2002, Part V of that Act applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches Article 8 of the European Convention on Human Rights and as a result would be unlawful under section 6 of the Human Rights Act 1998.
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Section 117A applies to the public interest considerations in all cases and section 117C applies additional considerations to cases involving foreign criminals. So far as relevant to this appeal, section 117B sets out factors to be considered in all cases and the additional consideration in cases involving foreign criminals provides as follows:
“117C. Article 8: additional considerations in cases involving foreign criminals
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The deportation of foreign criminals is in the public interest.
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The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
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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.
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Exception 1 applies where –
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C has been lawfully resident in the United Kingdom for most of C’s life,
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C is socially and culturally integrated in the United Kingdom, and
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there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
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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.”
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In KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, the Supreme Court considered the test for and factors to be taken into account when assessing the meaning of ‘unduly harsh’ in paragraph 399A of the Immigration Rules and section 117C(5) of the Nationality, Immigration and Asylum Act 2002. In paragraph 23, Lord Carnworth held as follows:
“On the other hand 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. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. 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. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of the relative levels of severity of the parent’s offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932, [2017] 1 WLR 240, paras 55, 64) can it be equated with the requirement to show “very compelling reasons”. That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more.”
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Within the Supreme Court’s consideration of the specific appeal in KO, further reference is made to the authoritative guidance on the meaning of unduly harsh given in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC), which held in paragraph 46:
“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 more severe, or bleak. It is the antithesis of pleasant and comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.”
Respondent’s reasons for refusal
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The Respondent refused the Appellant’s human rights claim on the basis that none of the exceptions to deportation applied in his case and he was subject to the automatic the provisions in section 32(5) of the UK Borders Act 2007 following his conviction for theft for which he was sentenced to 2 years’ imprisonment. The Respondent accepted that the Appellant had a genuine and subsisting relationship with his wife and children in the United Kingdom, but did not accept that it would be unduly harsh either for the family to relocate to Nigeria (the children were young enough to adapt, English is spoken there and the children could continue in education, and medical treatment was available) or for the Appellant’s wife and children to remain in...
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