(Immigration and Asylum Chamber) Appeal Number: DA/00114/2009
THE IMMIGRATION ACTS
Heard at Field House
On 11 June 2013
On 4 July 2013
UPPER TRIBUNAL JUDGE MOULDEN
MR S B
(Anonymity direction made)
SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: the appellant appeared in person and was not represented
For the Respondent: Mr P Nath a Senior Home Office Presenting Officer
DETERMINATION AND REASONS
17. The decision of the original panel was found to be flawed and a "de novo" hearing was ordered. The subsequent decision of the Immigration Judge was quashed by the Court of Appeal. In the circumstances no findings of credibility or fact are preserved from either decision and I cannot treat them as my starting point applying Devaseelan principles. However I can, with caution, look at the records of evidence given on those occasions as they are set out in the determinations. This is necessary and helpful because of the limitations in the evidence submitted to me by an unrepresented appellant. In 2009 the appellant was represented and the evidence given then helps establish the position at that time.
30. I have letters from C, A, B and Ms Y. I have addressed the evidence of B and Ms Y, who gave oral evidence. C and A ask that the appellant should not be sent back to Jamaica. They speak of him as a caring and attentive father figure. A says that the appellant supports and encourages him at his cricket club.
31. Section 32 (1) of the UK Borders Act 2007 ("the 2007 Act") defines a foreign criminal as a person who is not a British citizen who has been convicted in the United Kingdom of an offence and, as in this case (Condition 1), has been sentenced to a period of imprisonment of at least 12 months. Under section 35 (4) of the 2007 Act, for the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good. In these circumstances the Secretary of State must make a deportation order subject to Section 33 of the 2007 Act which sets out statutory exceptions one of which is whether the removal of the appellant in pursuance of the deportation order would breach his Convention rights. The appellant claims that his removal would infringe his Article 8 human rights and those of his wife, children and family.
32. I have considered whether I should apply the new Immigration Rules (HC 194) introduced on 9 July 2012. In the light of the determination in MF (Article 8 - new rules) Nigeria  UKUT 393 (IAC) and in particular paragraphs 58 to 60 I conclude that the application of the new rules is not retrospective. The respondent's decision in this case was taken as long ago as 12 January 2009. I am not persuaded that the new rules applied to the decision under appeal in this case. In the circumstances I consider the Article 8 grounds in the light of the established jurisprudence and follow the framework set out in Razgar  UKHL 27.
33. I find that the appellant has established a private and family life in this country. Applying the tests set out by Lord Bingham in Razgar his removal would be an interference by a public authority with the exercise of his right to respect for his private and family life. The threshold is not a high one and I find that such interference would have consequences of such gravity as potentially to engage the operation of Article 8. The interference would be in accordance with the law and necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In this case the primary factor is the prevention of disorder or crime. The final conclusion turns on whether such interference is proportionate to the legitimate public end sought to be achieved.
34. I turn first to the interests of the appellant's children and treat them as a primary consideration. By this I mean not just the first to be considered but also as a matter of substantial importance. I treat as the appellant's children not only his natural children but those who have to a greater or lesser extent regarded him as a father figure. They are B, C, A, D and E. I have no reports from a social worker or the children’s schools except a brief letter from the head teacher of C's school which confirms her attendance and states that the appellant "takes a keen interest in all of the activities at ........ (school) and attends all parent evenings". E lives in Jamaica and does not have a family life with the appellant in this country. If the appellant were to return to Jamaica it is probable that they would see more of each other. The other children either live with the appellant or see him regularly. They get on well together. The appellant is attached to them and they to him. He helps with sport and schoolwork. They do not want him to leave the country and would miss him a great deal if he left. Only two of the children live with him all the time and all but E had to deal with his absence whilst he was in prison. I have no objective evidence as to how the children coped whilst the appellant was in prison or any assessment of the consequences for their well-being if he had to leave the country. All of them appear to enjoy good health. The appellant has some family life with Ms Y but wholly related to their son A.
35. Because she did not attend the hearing and did not provide a witness statement the current relationship between the appellant and his wife is not clear. They have been together since 2000 but there have been serious disagreements and periods of separation, the longest whilst he was in prison. The appellant's wife has recurring health problems and depression although the regularity and seriousness of these are not clear. It is not clear to what extent she has been aware of the appellant’s immigration status. However, she is a British citizen as are her children and although she has been to Jamaica on holiday she has not lived there. Her close family are in this country and I conclude that it would not be reasonable to expect her or her children go and live in Jamaica. It would not be reasonable to expect the other children living in this country to go and live in Jamaica.
36. I have been provided with very little information about the appellant's private life in this country although I accept that he has one. In the proportionality balance it adds a little to the greater weight to be attached to family life.
37. At times the appellant has worked the immigration system in his favour. He has been an overstayer. His attendance record as a student is not impressive. In order to remain in this country he made an asylum claim which he dropped as soon as he was able to apply to stay on the basis of his marriage. However, he has had leave to remain in this country for most of the 14 years he has been here. He has one caution and three convictions for using cannabis and did not heed his wife's strong objections to his use of cannabis which he did not hide from her. He has been convicted of driving without insurance. His conviction for dealing in cocaine is a very serious offence for which he was sentenced to 40 months imprisonment. He was convicted following a plea of not guilty. Since then he has been convicted of drink-driving. The difficulties he has encountered in finding work could increase the risk of further drug dealing. The appellant does not appear to have had any concern for the effect on his children at the time of the offence which led to his conviction for dealing in cocaine.
38. The appellant's deportation would render it unlawful for him to return to this country whilst the deportation order remains in force. As a consequence his deportation would be likely to result in him being separated from his family for a considerable period of time except for visits they could make to him if they could afford to do so and modern means of communication.
39. I have had regard to what is said in SS (Nigeria) v SSHD  EWCA Civ 550 and I attach considerable weight to the fact that Parliament has provided in primary legislation "a well justified imperative for the protection of the public and to reflect the public's proper condemnation of serious wrongdoers". The 2007 Act gives great weight to the deportation of foreign criminals. The appellant was convicted of a serious offence of selling class A drugs. There is no independent evidence of the risk of reoffending but I take into account his attitude to the criminal law shown by the caution and convictions for using cannabis and motoring offences including drink-driving. There is no indication that further evidence about the children, for example from an independent social worker, might make any difference. There is no suggestion of existing problems which might require further investigation.
40. I have made an anonymity direction in order to protect the interests of the children.
41. I find that the appellant’s case under Article 8 and especially the interests of his children is not sufficiently strong to prevail over the extremely pressing public interest in his deportation. I dismiss the appellant’s appeal.
Direction regarding anonymity
Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Signed Date 2 July 2013
Upper Tribunal Judge Moulden