Upper Tribunal (Immigration and asylum chamber), 2019-04-15, HU/10151/2017
| Jurisdiction | UK Non-devolved |
| Date | 15 April 2019 |
| Published date | 05 June 2019 |
| Hearing Date | 20 March 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/10151/2017 |
Appeal Number: HU/10151/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10151/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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Heard on 20 March 2019 |
On 15 April 2019 |
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Prepared on 3 April 2019 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT
Between
MR ANTHONY GRANT
(Anonymity order not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Aslam, Counsel
For the Respondent: Ms J Isherwood, Home Office Presenting Officer
DECISION AND REASONS
The Appellant
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The Appellant is a citizen of Jamaica born on 2 September 1970. He appealed against a decision of the Respondent dated 21 April 2017 to make a deportation order against him and a decision dated 30 August 2017 to refuse a human rights claim and maintain the decision to deport. His appeal was allowed at first instance by Judge of the First-tier Tribunal Atreya and the Respondent appeals with leave against her decision. For the reasons which I set out in more detail below, I have set that determination of the First-tier Tribunal aside and I have proceeded to remake the decision in this determination. Although the matter came before me initially as an appeal by the Respondent as I have redetermined the appeal I will continue to refer to the parties as they were known at first instance.
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The Appellant entered the United Kingdom on 10 September 2000 as a visitor and was then granted leave to remain as a student until 31 January 2002. He had no further leave thereafter (save as referred to below) although he applied unsuccessfully for leave as a spouse in 2008. The Appellant had a number of criminal convictions dating back to 2002 including a conviction for drug dealing for which he was sentenced to 42 months by Snaresbrook Crown Court (having been found guilty after a not guilty plea) on 15 April 2002. He was notified of his liability for deportation in 2009 and a decision to deport him was made on 2 February 2011. The Appellant successfully appealed against the 2011 deportation decision and was granted 3 years discretionary leave following this appeal.
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However, the Appellant’s offending did not stop after succeeding in his first deportation appeal. He received a conditional discharge for possessing cannabis in 2013 and a fine in March 2015 for an offence of attempting to pervert the course of justice and possession of cannabis and a further fine in May 2015 for another offence of possession of cannabis. The Appellant accepted that he was addicted to cannabis. On 21 April 2017 the Respondent made a second deportation order against the Appellant and subsequently refused the Appellant’s human rights claim based on his private and family life. The Appellant’s appeal against the Respondent’s decisions has given rise to these proceedings.
The Appellant’s Case
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The Appellant contested the second deportation on Article 8 grounds. He has three adult children and five children under the age of 18. He was found by the Judge at first instance to be actively involved and present in the lives of all his children although he did not live with any of them. He had separated from his wife Juliet who suffered from depression. His youngest child T was born after the 2nd Home Office decision to deport the Appellant. At the time of his first deportation appeal in 2011 Judge Monro in allowing the appeal stated that the Appellant had made a fresh start in life and made a positive contribution to the lives of his children and other people.
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In the second appeal the Appellant told Judge Atreya that he had been working since he came out of prison and financially supporting his wife and children producing bank statements on his mobile phone as confirmation. He accompanied his wife to hospital appointments which concerned the children and he was the first point of contact at the secondary school. The Appellant’s present partner [ML] stated that while she did not live with the Appellant he was at her house every day. The Appellant supported her 14-year-old son which she had had by another relationship. The Judge also heard evidence from friends of the Appellant and his daughter [SB] who had made a statement for the appeal dated 9 June 2018 in which she described the Appellant as “the rock of my stability”.
The Decision at First Instance
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Judge Atreya found the Appellant to be a truthful witness who had a genuine and subsisting relationship with his three adult children and five under 18’s. He was in a committed and serious relationship with [ML]. There was a significant public interest in the Appellant’s deportation, but the Judge found the Appellant had addressed his drug addiction and had not been to prison since the previous deportation appeal. At [73] of the determination the Judge found on the balance of probabilities that it would be unduly harsh for the under 18 children to remain in the United Kingdom without the Appellant. He was in a position to give continued love and support and guidance which could not be given meaningfully on a reduced basis for example by Skype. Visits were unlikely to happen because of the cost.
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At [74] the Judge stated that the Appellant fell within the exception to Paragraph 399(a) because he had been involved with his children all their lives and continued to play a significant role in their everyday lives. Even if he did not come within the exception, there were very compelling circumstances which outweighed the public interest in deportation. These were that the Appellant was a constant and involved parent and addressing his cannabis addiction and contributing to society through work. The children were vulnerable because of their age and depended on the Appellant emotionally and financially and risked losing a parent permanently.
The Onward Appeal
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The Respondent appealed against this decision arguing that the Judge had failed to correctly apply the test of unduly harshness as identified in MM Uganda [2016] EWCA Civ 450. The Judge failed to give the requisite weight to the strong public interest, as identified by Parliament, in the Appellant’s deportation given the serious nature of the offence involving drugs and the Appellant’s continual offending. The Judge failed to give clear reasons what the unduly harsh consequences of separation would be if the Appellant was deported and the partner and children remained in the United Kingdom. In order to satisfy the rigorous test of undue harshness it was necessary to identify factors that went beyond being a supportive parent providing moral and emotional support or normal father-child interactions. There was no finding that the Appellant partner [I assume this reference also includes the Appellant’s ex-wife] would be unable to support the children or provide for them. The Judge had failed to give clear reasons how the public interest in deportation was outweighed by the Appellant’s family life relied upon.
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The application for permission to appeal came on the papers before Judge of the First-tier Tribunal Lambert on 12 December 2018. In granting permission to appeal she referred to the relatively brief content of [73] of the determination (see paragraph 6 above) which had displayed an arguable lack of adequate reasoning consistent with case law. There was no Rule 24 response from the Appellant to the grant of permission.
The Error of Law Stage
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In consequence of the grant of permission to appeal the matter came before me to determine in the first place whether there was a material error of law in the determination such that it fell to be set aside. If there was not, then the decision of the First-tier Tribunal would stand. If there was then I would give directions for the rehearing of the appeal.
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For the Respondent the Presenting Officer argued that there was a material error of law in the determination and she relied on the grounds provided. The Appellant had to show that there was something beyond the ordinary in the connection between him and his family, but he could not do this. He did not live with his family he only picked the children up from school. The Respondent relied on the Supreme Court decision of KO [2018] UKSC 53 which confirmed that undue harshness implied an element of comparison. The facts of KO involved British citizen children. The Appellant had spent more time in the United Kingdom without leave then with it as the Judge acknowledged at [50] when she referred to the Appellant having four years lawful leave out of a total time spent in the United Kingdom of ten years.
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The Judge had not properly considered that whilst the Appellant had contact with his children he had nevertheless committed offences. [73] of the determination did not properly address the issue of undue harshness. The Appellant was not the primary carer and so it was difficult to see what was out of the ordinary in the current arrangements which the Appellant had. Even if the Appellant did see the children every day their mother was the primary carer. There had not been a full consideration of all the facts.
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In reply counsel indicated he...
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