England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		5 October 2016

1. MR JUSTICE MITTING: This is an unusual application for permission to apply for judicial review of the decision of the Upper Tribunal refusing permission to appeal. It is unusual because as a Cart application it is being dealt with orally. It is being dealt with orally because the judge who considered the application on the papers considered that it would benefit from oral argument. I have heard helpful oral argument from both sides today.
2. The claimant is a man of Jamaican origin and nationality who has resided in the United Kingdom since the age of six. As a young man, he has become involved in a small number of criminal offences, two of them serious. One was a robbery as a schoolboy, for which he was dealt with by the Juvenile Court, and the second and more recent offence an offence of blackmail. He was tried by the jury and convicted on 29 March 2011. The offence was committed jointly with others. In his sentencing remarks the trial judge said the following:

"You were found guilty, quite rightly, by the jury of knowingly supplying a phone to your brother. Your phone was used for a very limited amount of time. I am prepared to proceed on the basis that the fact that you retrieved your phone some way after something like half an hour and after four demand calls may well indicate that that was to your belief the limit of the demands that were made. As we all know, the demand calls went on for much longer and gained in seriousness and violence as the hours went by."

3. Thus, the basis upon which the trial judge sentenced him following the jury's guilty verdict was that he had played a knowing part in the earlier stages of what became an extremely unpleasant attempt to blackmail the victim, but did so in circumstances when his phone was lent to his brother for about half an hour during which approximately four calls were made, which were at the lower end of seriousness and violence of demand.
4. The judge sentenced him to 21 months' imprisonment, which had the effect, after allowing for time spent on remand, of securing his immediate release. That conviction and sentence made him liable for automatic deportation. The appeal against decision concentrates upon that and, in due course, he advanced the argument that, because he had been in the United Kingdom since the age of six, he was socially and culturally integrated into the United Kingdom. He had a two and three-quarter year old child. Although he did not live with her, he saw her daily and his removal to Jamaica would make continued personal contact with her at best infrequent.
5. He gave evidence about his participation in the events of blackmail to the effect that he was not guilty of it. The judge, unsurprisingly, disbelieved that evidence. In paragraph 133 of his determination, he observed, correctly, that he was convicted of a joint enterprise to blackmail the victim and noted, again correctly, that the judge had said that he had been convicted knowingly of being involved in the blackmail in conjunction with others. He then went on to ask himself the following question:

"It has to be asked of the appellant actually how much more of the offences that took place on the day he lent his phone that was used to make at least some of the threatening menacing phone calls did the appellant know about what was going on. Whilst the appellant was only charged with the offence of blackmail arising out of the incident, I have considerable doubts that the appellant was not more fully aware of the circumstances of the offences against D than he has been prepared to admit. In my view, the appellant's criminal behaviour has been really serious indeed."

6. Mr O Ceallaigh submits that that demonstrates a clear error of law. In Secretary of State for the Home Department v HK [2010] EWCA Civ 583 Sir Scott Baker in the leading judgment of the court at paragraph 28 observed that:

"... tribunals ... should be careful not to make findings or draw inferences that are inconsistent with anything said by the judge who presided over the trial."

7. Those observation were agreed to by Sedley LJ who observed in paragraph 34 that it was not for "the Tribunal to reappraise the offending behaviour so as either to inflate or diminish the judicial evaluation of it." Mr O Ceallaigh submits that by expressing himself as he did in paragraph 133 in the passage that I have cited, the First-tier Tribunal judge clearly did what the Court of Appeal said that he should not do. I agree that he did. By expressing himself as he did, the First-tier Tribunal judge gave the clear impression that he regarded the claimant's participation in the offence of blackmail as more extensive and more serious than the basis upon which he had been sentenced by the sentencing judge. It was not open to him to do that.
8. Mr O Ceallaigh submits that that in turn went on to infect not just the assessment of proportionality on which the judge was conducting at the stage when he made those remarks, but also the assessment of whether or not the claimant had been socially and culturally integrated in the United Kingdom. In paragraph 115, he said:

"He cannot be said to be socially and culturally integrated in the United Kingdom on the basis that he has led a criminal lifestyle, having been convicted of the charge of robbery and blackmail."

9. That observational finding seems to me to be at best highly questionable, but is not for the present purposes the subject of this application. Mr O Ceallaigh does not contend that that finding raises an important point of principle or practice, at least freestanding. He relies on it only to demonstrate that the findings in paragraph 133, had a significant impact on the reason which led to the dismissal of the appeal. When Judge Plimmer in the Upper Tribunal came to consider the application for permission to appeal to that tribunal, she noted that the First-tier Tribunal had adequately considered the relevant rules, paragraph 399 in particular and also paragraph 399A(c). There is for present purposes no change to those conclusions. As regards the claimed error in paragraph 133, she said the following:

"Even if there was an error in the FTT's approach to the index offence, it was not material because the FTT did not weigh the seriousness of the offence when considering 399 in accordance with MAB USA [2015] UKUT 435 and there was an absence of 'very compelling circumstances' on the FTT's actual findings."

10. In other words, Judge Plimmer found that although there may well have been an error in paragraph 133, nevertheless the findings were sustainable independently of it and the error had no material bearing upon the overall conclusion.
11. In considering the Cart claim, I first of all have to consider whether there is a material error of law in the First-tier Tribunal's reasoning and, if so, whether it raises an important point of principle or practise. On the facts that I have recited, I am not satisfied that it is arguable that there was a material error of law in the First-tier Tribunal's determination and reasons.
12. The relevant paragraphs of the Immigration Rules 399 and 399A were addressed accurately and comprehensively by the First-tier Tribunal judge. 399A, in particular, required him to reach conclusions on whether or not the claimant had been socially and culturally integrated in the United Kingdom. His conclusion on that may be open to question, but his conclusion on the remaining issue as set out in 399A(c), "there will be very significant obstacles to his integration into the country to which it is proposed he be deported," was not impeachable. It was not affected by any error in relation to the earlier question about social and cultural integration in the United Kingdom. Given that the requirements are cumulative, his unimpeachable conclusion on 399A(c) must stand.
13. Under 398, the Secretary of State and Tribunal were required to consider whether the public interest in removal would be outweighed by, "very compelling circumstances over and above those described in paragraphs 399 and 399A." The First-tier Tribunal's reasoning on that issue is also unimpeachable.
14. As to 399, it is accepted that the claimant had a child with whom there was a subsisting relationship, although not as part of a single family unit, and that again the First-tier Tribunal judge reached unimpeachable conclusions about whether or not it would be unduly harsh for the child to remain in the United Kingdom without the claimant on the basis that his mother was a frequent traveller to Jamaica, to which he would be deported, and could well bring his daughter with her when she visited.
15. In those circumstances, it seems to me that Judge Plimmer's decision to refuse permission to appeal was open to her and justified. In those circumstances, the question whether or not the error of approach which I have identified in paragraph 133 of the First-tier Tribunal's decision raised an important point of principle or practice simply does not arise. Even on a pre-Cart basis, this would be a case in which I would have refused permission to apply for judicial review. It follows that I must do so now.