United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-002775
	First-tier Tribunal No: HU/01841/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 20 ^th of February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

ERROL PATRICK BROWN

(N o anonymity order made )

Respondent

Representation :

For the Appellant: Mr Thompson a Senior Home Office Presenting Officer

For the Respondent: Mr Hussain of Counsel

 

Heard at Phoenix House (Bradford) by CVP on 17 February 2025

 

DECISION AND REASONS

 

 

1.       For consistency with the decision in the First-tier Tribunal I will hereafter refer to Mr Brown as the Appellant and the Secretary of State as the Respondent.

 

2.       The Appellant was born on 1 May 1951. He is a citizen of the United States of America. He appealed against the decision of the Respondent dated 14 March 2022, refusing his application for leave to remain on the basis of his family life with his partner Sally Ann Hayward ("the Sponsor"). The Respondent appeals against the decision of First-tier Tribunal Judge Thomas allowing the appeal.

 

 

Permission to appeal

 

3.       Permission was granted by Judge Lawrence on 4 June 2024 who stated:

 

"3. It is arguable that Judge Thomas materially erred in law by failing to consider the public interest question defined in section 117A(3) of the Nationality, Immigration and Asylum Act 2002 to have regard to the considerations listed in section 117C of that Act."

 

The First-tier Tribunal decision of 5 February 2024

 

4.       Judge Thomas made the following findings relevant to this hearing:

 

"37. The public interest in this case is strong. The Appellant cannot meet the Rules. He is a person who has been convicted in the UK of offences and been sentenced for one of those offences for 5 years. Further, in the period the Tribunal are considering, other than leave to enter as a visitor, he has never had any other regularised immigration status in the UK.

38. On the contrary, I return to my previous findings first, that the relationship is a genuine and subsisting relationship. Although I accept that that relationship has developed whilst the Appellant's immigration status was that of a visitor, or latterly precarious nevertheless, I have found both the Appellant and the Sponsor truthful witnesses and I am satisfied that it was never their intention to flout immigration law. I accept their evidence that they genuinely thought they could make an application in country. Secondly, I return to my finding that it would be unjustifiably harsh for the Sponsor to have to leave the UK in light of her care responsibilities. In relation to the convictions, I attach weight to the fact, that they are historical convictions, over 20 years ago. I also attach weight to the fact that on release from prison no steps were taken to deport the Appellant. He left the UK of his own violation, despite having indefinite leave to remain. I also attach weight to the fact that if he returned to the USA to make an application, entry clearance may never be granted ( Mansoor v SSHD [2011] EWHC 832).

39. In conclusion, although I find the public interest in removal to be strong nevertheless, I find that it is sufficiently diminished on the basis of the Appellant's, Sponsor's, and the Sponsor's mother's circumstances when considered cumulatively in the round ( Beoku-Betts v SSHD [2008] UKHL 39). I find the Appellant's circumstances to be compelling and as such, when carrying out the proportionality balancing exercise the refusal of leave to remain to be disproportionate in light of my finding that the Sponsor and the Appellant are in a genuine and subsisting relationship, that if I had been considering their circumstances through the lens of EX.1., that I would have found there were insurmountable obstacles to family life outside the UK. Further, following release from prison, the Appellant was not deported, and if removed to make an application for entry clearance, it would be refused.

40. In summary, I find the public interest is outweighed on the facts of this case and as such, it would be unjustifiably harsh, and therefore disproportionate under Article 8 of the ECHR, to refuse the Appellant's leave to remain. "

 

The Respondent's grounds to seeking permission to appeal

 

5.       The grounds dated 8 February 2024 asserted that (emphasis included):

 

" Background

1.               On 27/05/99 at Isleworth Crown Court the appellant was convicted of a number of offences, the most serious being BURGLARY AND THEFT - DWELLING resulting in a sentence of five years' imprisonment.

Ground one: Making a material misdirection of law

2.               At [40] the FTTJ finds that 'the public interest is outweighed on the facts of this case and as such, it would be unjustifiably harsh, and therefore disproportionate under Article 8 of the ECHR, to refuse the Appellant's leave to remain.'

3.               It is submitted that the FTTJ has erred in failing to take into account that the appellant is a 'foreign criminal' as defined by Section 117D of the Nationality, Immigration and Asylum Act 2002, as amended.

(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, and

(c)who-”

(i)has been sentenced to a period of imprisonment of at least 12 months,

(ii)has been convicted of an offence that has caused serious harm, or

(iii)is a persistent offender.

4.               In light of the appellant's UK conviction resulting in a five year prison sentence he is a foreign criminal to whom Section 117C of the NIAA 2002 applies. The FTTJ has failed to have regard to this fact.

5.               The FTTJ makes much of the fact of that the appellant claims to have left of his own volition and seemingly disregards the conviction on the basis that it is historical [38]. However, neither of these factors negates the statutory requirement to consider the high public interest in deporting foreign criminals, as set out at s.117C of the NIAA.

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.

(6)In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7)The considerations in subsections (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.

6.               Given the fact that the appellant was sentenced to five years' imprisonment he cannot benefit from either Exception to s.117C in any event.

7.               Furthermore, the FTTJ fails to have regard to Chapter 13 of the Immigration Rules

Section 1: Grounds for deportation

13.1.1. A foreign national, who is not an Irish citizen, is liable for deportation where:

(a) they have been convicted of a criminal offence for which they have received a custodial sentence of at least 12 months; or

Section 2: Article 8 ECHR exceptions to deportation

13.2.2. A foreign national, who has received a custodial sentence of at least 4 years, must show very compelling circumstances over and above the exception in paragraph 13.2.3. or 13.2.4 for deportation to be a breach of Article 8 of the Human Rights Convention.

8.               It is submitted that the FTTJ has failed to have regard to the fact that the appellant is a person whose deportation is required by the public interest, as defined by statute, whether or not such a decision has been made by the SSHD, therefore the appellant must show that there are 'very compelling circumstances' over and above the exceptions contained at Chapter 13 of the Immigration Rules. The FTTJ has failed to make such a finding, they have made a finding instead in respect to 'unjustifiably harsh' consequences which is the threshold relevant to EX.1. of Appendix FM, where there is no liability to deportation."

 

The Respondent's position

 

6.       The 24 notice asserted that:

 

"1. At paragraph 18 of the determination of IJ MM Thomas findings there is a clear recognition of A' criminal history and therefore any further findings are in recognition of that history.

2. The IJ also accurately makes mention at Paragraph 18 that "the Appellant left the UK of his own volition, he was not deported nor due to be deported, and that he lost his previous indefinite leave because of his prolonged absence from the UK. The latter is not challenged by the Respondent. "

3. Whilst the IJ did not specifically make mention of section 117C of the Nationality, Immigration and Asylum Act 2002 it is submitted that the determination takes full consideration of this.

4. It should be noted that this Act and article were not in existence at the time of A's crime. He has then had a period of over 25 years with no further criminal activity.

5. It is submitted that Article 117C is particularly relevant in the public interest in deportation of a foreign criminal. A's criminal activity dates back to 1999 and he meets the Rehabilitation Period of 7 years in accordance to the Rehabilitation of Offenders Act 1974.

6. After 25 years of A committing a crime and even in the event that he was deported he would at this point be in a position to apply for the revocation of a deportation and the public interest would be diminished with the passage of time and no further criminal activity.

7. It is therefore submitted that the IJ has applied the correct balance in his determination and has indeed considered the relevant exceptions in article 117 C as below,

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.

8. At paragraph 22 and 32 of the determination he has made findings that A and his partner are in a genuine and subsisting relationship.

9. At paragraph 36 onwards the IJ gives considerable reasoning to his findings on why the exceptional circumstances outweigh public interest. Whilst the IJ may not have used the wording "unduly harsh" he has made a finding in relation to A and his partners circumstances that would indeed lead to unduly harsh consequences.

10. In actuality the respondent is not considering deportation of A, and therefore the exact wording is not necessary.

11. At paragraph 39 the IJ after provided adequate reasoning that the public interest in A's removal is diminished and that A's circumstances are compelling.

12. At paragraph 40 the IJ does make a finding in relation to the unduly harsh consequences of removal using the term unjustifiably harsh.

13. It is therefore submitted that the IJ has given due consideration to 117C."

 

Oral submissions

 

7.       Mr Thompson submitted additionally tha t the Judgment is devoid of reference to S117C. It is accepted that the Appellant was not deported. That does not negate the need of the Judge to apply the correct framework. It was mandatory for S117C to be considered. S117B cannot be met. It is accepted that there are no subsequent convictions. There are only 2 references to compelling circumstances. The circumstances have to go beyond the EX1 and EX2 exceptions. The Judgement does not say that.

 

8.       Mr Hussain submitted additionally that the Judge directed himself correctly and went through the competing factors. This was not a deportation appeal. There were competing public interest. It is a detailed determination. There was no clear error. The decision is sound and can be upheld.

 

9.       Mr Thompson made no further submissions in response.

 

Discussion

 

10.   In assessing the Grounds, I acknowledge the need for appropriate restraint by interfering with the decision of the First-tier Tribunal Judge bearing in mind its task as a primary fact finder on the evidence before it and the allocation of weight to relevant factors and the overall evaluation of the appeal. Decisions are to be read sensibly and holistically; perfection might be an aspiration but not a necessity and there is no requirement of reasons for reasons. I am concerned with whether the Appellant can identify errors of law which could have had a material effect on the outcome and have been properly raised in these proceedings.

 

11.   This is not a deportation appeal. It was an application for leave to remain. The Appellant is a foreign criminal as defined in S117D of the 2002 Act. The Rehabilitation of Offenders Act 1974 is not relevant to whether that test was met. As his deportation is in the public interest as made clear in S117C(1) of the 2002 Act, that is a relevant factor in determining whether his Article 8 rights would be reached by his removal. As he was sentenced to over 4 years, very compelling circumstances have to be shown above those factors described in Exceptions 1 and 2 as set out in S117C(6).

 

12.   At [8] the Judge said;

 

"In summary, what must be determined is whether the Appellant's circumstances are so compelling that his Article 8 claim would outweigh the public interest requirements in removal."

 

13.   When considering the various factors, namely the length of time since his prison sentence, his subsequent lack of offending, his genuine and subsisting relationship with Mrs Hayward, her caring responsibilities, and the lack of intention to flout immigration laws, no further reference is made to the elevated test set out in S117C(6), and the Judge has not set out how these factors individually or cumulatively reach that elevated threshold. The Judge states at [39] " I find the Appellant's circumstances to be compelling" which is not the correct test and not the question he directed himself to at [8]. I am therefore satisfied that the Judge materially erred.

 

14.   I agree with the representatives that the appeal needs to be remitted to the First-tier Tribunal as it is a year since the hearing before Judge Thomas, and the Appellant should have the opportunity to file up to date evidence if he so wishes. Specific direction and a timetable are at the discretion of the First-tier Tribunal.

 

Notice of Decision

 

15.   The Judge made a material error of law. I set aside the decision.

16.   I remit the appeal with the findings regarding the length of time since his prison sentence, his subsequent lack of offending, his genuine and subsisting relationship with Mrs Hayward, her caring responsibilities, and the lack of intention to flout immigration laws being retained.

 

17.   The appeal shall not be listed before Judge Thomas.

 

 

Laurence Saffer

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

18 February 2025