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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-005465
	First-tier Tribunal No: PA/56198/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 18 February 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE OWENS

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

 

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

PJ

(ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: Mrs R Arif, Senior Home Office Presenting Officer

For the Respondent: Mr F Aziz of The UK Law Firm

 

Heard at Field House on 11 February 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

 

1. We make an anonymity direction because this appeal arises from the appellant's protection claim.

2. The Secretary of State for the Home Department brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal.

3. This is an appeal by the Respondent against the decision of First-tier Tribunal Judge McQuillan, promulgated on 14/10/2024, which allowed the Appellant's appeal.

 

Background

4. The Appellant is an Iraqi national. He entered the UK in 2008 and claimed asylum. The respondent refused the appellant's claim, and the appellant appealed the respondent's decision unsuccessfully. His appeal rights were exhausted on 19/01/2009. The appellant made further representations which were rejected.

5. On 25/03/2015 the appellant was convicted of wounding with intent to do grievous bodily harm and sentenced to two years imprisonment. On 14/09/2015 a deportation order was signed.

6. Because of the decision in Kiare & Byndloss v SSHD [2017] UKSC 42 the Respondent withdrew the deportation order dated 14//09/2015 and issued a fresh decision (with a right of appeal) on 18/10/2017. The appellant appealed unsuccessfully, and his appeal rights were exhausted on 23/11/2018.

7. The appellant's fresh protection claim was made 01/07/2022. The respondent refused the appellant's renewed protection claim on 23/08/2023.

The Judge's Decision

8. The Appellant appealed to the First-tier Tribunal. On 14/10/2024, First-tier Tribunal Judge McQuillan ("the Judge") dismissed the protection and Article 3 ECHR claims but allowed the appeal on Article 8 ECHR grounds.

9. The Respondent lodged grounds of appeal, and, on 28/11/2024, Tribunal Judge Elliott granted permission to appeal. He said

 

3. In considering the public interest question in the deportation of the appellant as foreign criminal the judge found that the appellant failed to meet exceptions to deportation contained in sections 117C(4) and (5) the nationality immigration and Asylum act 2002. The judge decided that she had to then carry out a balancing exercise as required by section 117B of that act failed to consider whether, under section 117C(6), failing to meet the exceptions, the appellant had demonstrated that very compelling circumstances over and above those exceptions applied. That required to judge consider the very high threshold that entailed. It is arguable that the judge considered only the notion of the best interests of the appellants children without considering whether those interests in themselves amounted to very compelling circumstances.

 

4. The Judge accepted the opinion of a social worker as to the impact on the appellants children of his deportation but does not consider how those consequences, which are arguably the normal effects of deportation on family life, satisfy the high threshold required demonstrating very compelling circumstances.

 

5. Permission to appeal is therefore granted on all grounds argued.

 

10. There was no rule 24 response, and the appellant did not assert that the Judge had erred in law in dismissing the protection aspect of the appeal.

The Hearing

11. For the respondent, Mrs Arif moved the grounds of appeal. She told us that the Judge had misdirected himself in law because, although he had considered the two exceptions to deportation in section 117C of the Nationality, Immigration and Asylum Act 2002, he had not then gone on to consider whether or not there are very compelling circumstances over and above consideration of those two exceptions. Mrs Arif told us that the Judge failed to follow the guidance given in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22.

 

12. Mrs Arif moved to the second ground of appeal and told us that the Judge gives insufficient reasons for his findings about the appellant's two children. She referred to an independent social worker's report relied on by the appellant but told us that the Judge did not provide details of how that independent social worker's report identifies long-lasting effects on the children which would affect their well-being.

 

13. Mrs Arif told us that the Judge does not provide adequate reasons for central findings. She told us that the decision contains material errors of law and asked us to set the decision aside and remit this case to the First-tier Tribunal.

 

14. For the appellant, Mr Aziz resisted the appeal. He said that even if there is some substance in the first ground of appeal it amounts to no more than an error of law and is not material. He urged us to remember that the appellant's wife and children are Iraqi nationals who have been granted leave to remain as refugees, so they cannot return to Iraq. Deportation will therefore result in separation.

 

15. Mr Aziz took us to [13] of the decision and said that the Judge clearly takes account of section 117B and section 117C of the 2002 Act. There, he said, the Judge takes correct guidance in law. He explained that the Judge found that family and private life within the meaning of Article 8 exist. Mr Aziz then took us to [37] to [39] of the decision.

 

16. Mr Aziz told us that the Judge considers the content of the independent social worker's report at [37] and takes note of the close relationship between the appellant and his two children. He told us that at [37] and [38] the Judge does not use the words " compelling circumstances", but (he said) the Judge clearly makes findings of fact which amount to compelling circumstances. He told us that at [39] the Judge carries out a flawless proportionality balancing exercise, factoring into it his findings at [37] and [38].

 

17. Mr Aziz asked us to dismiss the appeal and allow the decision to stand.

Analysis

18. In NA (Pakistan) v SSHD [2016] EWCA Civ 662 , the Court of Appeal corrected the drafting error in section 117C(3) of the Nationality, Immigration and Asylum Act 2002 and ruled that foreign criminal 'medium offenders' (those with sentences of between one and four years' imprisonment) have the same fall back protection as 'serious offenders' (those sentenced to four years or more) when seeking to resist deportation by reliance on Article 8 of the European Convention on Human Rights. The same words that appear in s117C(6) needs to be read into section 117C(3) to properly reflect Parliament's true meaning that where medium offenders do not fall within a private or family life exception, they can still resist deportation where there are "very compelling circumstances over and above" those exceptions.

19. In HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 it was held that the very compelling circumstances test requires all the relevant circumstances of the case to be considered and weighed against the very strong public interest in deportation. Relevant factors will include those identified by the European Court of Human Rights as being relevant to the article 8 proportionality assessment, although the weight to be given to the factors falls within the margin of appreciation of national authorities. The statutory scheme explicitly requires the court to consider the seriousness of the offence in the proportionality assessment.

20. Between [15] and [25] the Judge considers whether or not the appellant has a well-founded fear of persecution for a convention reason, and (relying on Devaseelan) finds that he does not.

21. At [26] the Judge turns to Article 8 ECHR grounds of appeal. He correctly considers the exceptions in section 117C of the 2002 Act between [28] and [35].

22. It is at [36] that the Judge materially misdirects himself in law. There, he says that, because neither of the two exceptions in section 117C of the 2002 Act apply, his next step is to go to section 117B of the 2002 Act. That is wrong.

23. After considering the two exceptions to section 117C, the next step that the Judge should have taken was to consider whether or not there are very compelling circumstances over and above consideration of the two exceptions in section 117C. He did not do that.

24. Mr Aziz was correct when he said that the Judge does not use the words " very compelling circumstances over and above..." anywhere in his decision.

25. [37] and [38] are not easy to understand because they start as if they are a rehearsal of the submissions Mr Aziz made to the First-tier Tribunal, but some of what is said there might be a partial analysis of some of the evidence. It is difficult to discern whether or not there are findings of fact contained in [37] and [38].

26. The Judge's Article 8 balancing exercise is restricted to [39]. Reading [37] to [39] as a whole, there is no consideration of very compelling circumstances over and above the two exceptions in section 117C. That is a material error of law.

27. Because the decision contains a material error of law, we set aside that part of the decision allowing the appeal pursuant to Article 8 ECHR.

28. Although not argued as part of this appeal, we note that the respondent's section 72 certificate was not dealt with by the Judge in the decision.

 

29. A fresh hearing in the First-tier Tribunal in respect of Article 8 ECHR is necessary. This is because there were few factual findings in the decision and approximately six months have elapsed since the date of the appeal hearing and there will need to be a fresh evaluation of the best interests of the children.

Remittal to First-Tier Tribunal

30. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25 ^th of September 2012 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:

(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or

 

(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.

31. The Article 8 ECHR assessment is incomplete. A new fact-finding exercise is required in respect of Article 8 ECHR. None of the findings of fact in relation to this issue are to stand. Those findings in respect of the appellant's protection and Article 3 ECHR claim (i.e. the findings contained in [16] to [25] of the Judge's decision) are preserved.

32. We remit the matter to the First-tier Tribunal sitting at Manchester to be heard before any First-tier Judge other than Judge McQuillan. A Kurdish Sorani interpreter will be required.

Decision

The decision of the First-tier Tribunal errs materially in law.

The Judge's decision dated 14 October 2024 allowing the appeal pursuant to Article 8 ECHR is set aside . The decision dismissing the appeal under the Refugee Convention and Article 3 ECHR is upheld.

The appeal is remitted to the First-tier Tribunal for the Article 8 ECHR appeal to be determined of new.

 

 

S igned Paul Doyle Date 13 February 2025

Deputy Upper Tribunal Judge Doyle