(Immigration and Asylum Chamber) Appeal Number: DA/00835/2012
THE IMMIGRATION ACTS
Heard at Manchester
On 11 June 2013
On 9 July 2013
UPPER TRIBUNAL JUDGE RINTOUL
CHEICK HAMED TIDIANE SANOUSSY
For the Appellant: Mr J Nicholson, Counsel, instructed by
For the Respondent: Ms S Marsh Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant appeals with permission against the determination of the First-tier Tribunal (First-tier Tribunal judge De Haney and Mr A Armitage) dismissing his appeal against the decision of the respondent to make a deportation order against him pursuant to section 32(5) of the UK Borders Act 2007.
2. The appellant is a citizen of Côte d’Ivoire, born on 21 December 1978. He arrived in the United Kingdom on 29 April 1999 and claimed asylum. That application was refused by the respondent on 29 September 2000 and his appeal against that decision was refused on 20 June 2001. The appellant remained in the United Kingdom and on 5 May 2011 he made further submissions in respect of his asylum claim. Although not accepting that he is a refugee, the respondent granted the appellant Indefinite Leave to Remain exceptionally outside the rules.
3. On 2 March 2012 the appellant was arrested at Dover trying to travel to France using a false French Passport. He was later on 19 April 2012 convicted in the Crown Court at Canterbury of possession/control of identity documents with intent, and was sentenced to 12 months’ imprisonment and on 26 September 2012 a decision was made to deport him. The reasons given by the respondent for doing so are set out in the refusal letter dated 26 September 2012.
4. The appellant’s case is that to remove him from the United Kingdom would be in breach of his right to respect for his private and family life, and thus contrary to this country’s obligations pursuant to article 8 of the Human Rights Convention, given the length of time he has spent here; the nature and content of his ties to the United Kingdom, as he had established a family life with Ms Naoelle Amar-Bensaber, a French citizen; and, that their relationship was a “durable relationship” for the purposes of regulation 8 (5) of the Immigration (European Economic Area) Regulations 2006. It is no longer claimed that his removal would be contrary to the United Kingdom’s obligations pursuant to the Refugee Convention or article 3 of the Human Rights Convention.
5. The First-tier Tribunal heard evidence from the appellant and Ms Amar-Bensaber. They dismissed the appeal concluding:
i. That neither the appellant or Ms Amar-Bensaber were credible witnesses  and that despite being in the United Kingdom for almost 14 years, there was a surprising lack of evidence of what the appellant had done in this period and very little corroborate his claim to have worked or attended courses ;
ii. That the appellant and Ms Amar-Bensaber were not in a durable relationship, or that they have been in such a relationship and living together since 2008 , given the inconsistencies identified in their evidence  and in the documents adduced ; the absence of any photographs of the couple ; the failure of the appellant to mention Ms Amar-Bensaber or their relationship in his submission to the respondent as to why he should not be deported ; the lack of visits by Ms Amar-Bensaber to the appellant while in prison ; the lack of correspondence between the couple ; and, that it was not credible that if they were living together he would not have told her that he was intending to travel to Paris  (the journey during which he was apprehended);
iii. That the relationship between the couple did not constitute a family relationship for the purposes of Article 8 ;
iv. That there was a presumption that the appellant’s deportation was conducive to the public good , that provision having been enacted by parliament and that due deference was to be given to the respondent’s clear intentions ; and, that his deportation was proportionate
6. The appellant sought permission to appeal against that decision. That was rejected by First-tier Tribunal Judge Plumptre on 26 March 2013. The renewed application repeated the initial grounds, and submit that:
i. That the panel had not addressed the submissions made to it, although recording them , and was harsh in their rejection of the relationship between the appellant and his partner , arguably erring introducing an error by raising the issue of photographs which had not been raised in the hearing, the principal submission was that the panel had erred in their assessment under article 8, given the appellant’s long residence, the short sentence imposed, and the unlikelihood of reoffending ;
ii. That the panel had failed to take into account  that the appellant was not a threat to the United Kingdom (recognised by the sentencing judge), there was no recommendation for deportation and it is not appropriate to use deportation as a deterrent; that the judge sentenced the appellant to the shortest imprisonment possible, just reaching the threshold for deportation; the length of the sentence and the circumstances of the offence; that the offence was one of stupidity, and involved using false documents to leave the country and was not a serious crime; that there was no risk of reoffending; that this was contrary to the approach commended in MK (deportation - foreign criminal - public interest)  UKUT 281 (IAC); that the new immigration rules are contrary to the correct approach to article 8 and that too much weight had been attached thereto, contrary to Izuazu ( Article 8 - new rules)  UKUT 45 (IAC) and Ogundimu (Article 8 - new rules) Nigeria  UKUT 60 (IAC) ;
iii. That the panel failed to take into account positive factors in the appellant’s favour  or to take into account his relationship with Ms Amar-Bensaber in the evaluation of his private life;
iv. That the panel failed properly to address the appellant’s private life including the 14 years spent here;
v. That the panel gave more than deference to the Secretary of State  and that in the circumstances, deportation was an additional punishment 
7. On 18 April 2013 I granted permission to appeal for the following reasons:
I do not consider that it is properly arguable that, as it appears to be put in the original grounds , the panel reached findings of fact which were not open to them. I consider that the panel has given adequate reasons for their findings of fact for sustainable reasons.
It is arguable that the First-tier Tribunal erred in failing to give adequate reasons for concluding that the appellant’s deportation was a proportionate interference with his protected private life and I grant permission to appeal on that basis.
8. The respondent, in her letter of 2 May 2013, pursuant to rule 24 submits that the panel directed itself appropriately, and that although succinct, its findings were sustainable.
Does the determination of the First-tier Tribunal involve the making of an error of law?
9. I heard submissions from both representatives. Mr Nicholson relied on his grounds of appeal, submitting that the panel had given insufficient attention to the judge’s sentencing remarks, the shortness of the sentence, the fact that this was a sole conviction, the lack of reoffending; and, had failed to give proper or any consideration to either Ogundimu (Article 8 - new rules) Nigeria  UKUT 60 (IAC) or MF (Article 8 - new rules) Nigeria  UKUT 393(IAC). He submitted also that SS Nigeria v SSHD  EWCA Civ 550 could be distinguished, given the very serious index offences committed by the appellant in that matter.
10. Ms Marsh submitted that there was no error of law, bearing in mind the limited content of the appellant’s private life, the strong public interest in deporting criminals as shown by parliament’s enactment of the automatic deportation provisions in the UK Borders Act 2007. She submitted also that absent evidence of a strong private life, the balance was topped in favour of deportation, and that the sentence imposed was to deter others.
11. While the renewed grounds of appeal to the Upper Tribunal incorporate the original grounds, they do not make any further challenge to the finding by the Firs-tier Panel that the appellant and Ms Amar-Bensaber had not established a family life together.
12. Mr Nicholson made no substantial submissions with regard to the findings of fact made by the panel. I note that it is averred in the grounds of appeal  that submissions made had not been taken into account, but the submissions particularised  relate primarily to the assessment of proportionality. The panel set out in their determination [23-25] the submissions made on the factual issues, and set out [36 -42] their reasons for concluding that neither the appellant nor M Amar-Bensaber were credible witnesses.
13. While it may be correct that the issue of lack of photographs was not put to the appellant, it is not clear that this formed any significant part of the panel’s reasoning. The panel sets out elsewhere in sufficient detail specific reasons for rejecting the evidence of the appellant and Ms Amar-Bensaber, noting in particular  that the appellant had not mentioned in his submissions dated 12 May 2012 to the respondent that he was in a relationship with Ms Amar-Bensaber despite it being his case that they had been living together for some time, and accordingly it is not a material error capable of affecting the outcome of the appeal.
14. I do not consider that the description of the findings as harsh discloses any error of law. I consider that the findings of fact were open to the panel and that they have given, in their determination, adequate reasons which were open to them for concluding that the appellant had not established a family life with his partner.
15. I do, however, consider that the determination fails to disclose what factors they considered in the appellant’s favour and which fell to be considered. The appellant had been here for 14 years, had indefinite leave to remain, and was in a relationship with Ms Amar-Bensaber, albeit one which was not sufficiently strong to constitute family life or a durable relationship. There is no sufficient indication that the judge’s sentencing remarks, or that propensity to re-offend was taken into account. While in light of the decision of the Court of Appeal in SS (Nigeria ) it is clear that there is a very strong public interest in deporting foreign criminals, it is not inevitable that, had the panel taken the factors in the appellant’s interest into account that the outcome would have been the same.
16. As indicated at the hearing, I therefore set aside the determination of the First-tier Tribunal which has to be remade. I am, however, satisfied that, as I also indicated at the hearing, it is not necessary to remake any findings of fact as I am satisfied that these were not infected by any error of law.
Remaking the determination
17. In assessing whether the appellant’s deportation is proportionate, I bear in mind the new rules introduced with effect from 7 July 2012. I note that it is not submitted that the appellant meets the requirements of immigration rules and on the facts of this case he does not fall within the provisions of paragraphs 399 or 399A. Following MF, Izuazu and Ogundimu I proceed to consider the case in line with the principles established in the case law.
18. I am satisfied that the appellant has established a private life in this country, and that, given the length of time he has spent here, some 14 years, a substantial part of his adult life, that his deportation to Cote d’Ivoire would engage article 8 of the Human Rights convention. I accept that this is in accordance with law, and has the legitimate aim of the prevention of crime and disorder.
19. In the appellant’s favour, I note that he has no previous convictions, and while the greater part of his time in this country was without permission, the respondent nonetheless chose to grant him indefinite leave to remain outside the rules, and thus as a matter of discretion. Consequently, less weight falls to be attached to his remaining here unlawfully.
20. The length of the appellant’s residence here is a significant factor in his favour, albeit that there is limited evidence of what he has done during that period. That is perhaps inevitable, given that his status here was for the greater part of that time precarious and he would have been able to work lawfully or study.
21. The appellant’s relationship with his partner is evidently stable; its existence is accepted. I am satisfied that the appellant’s deportation would interfere with that relationship, but there is insufficient evidence to show that it would be severed entirely. Nonetheless, it is a factor in his favour.
22. Turning to the index offence, the sentencing remarks from Judge O’Mahony do state the sentence passed is the least that could be imposed, but, importantly, taking into account the guidelines. He was, evidently, not satisfied that he should depart from them and impose a lower sentence than indicated by the guidelines. There is no evidence before me of any successful appeal against that sentence.
23. That said, the judge did say that the appellant was not a threat to the security of the United Kingdom, but that is not determinative of whether it is proportionate to deport him. As Mr Nicholson submitted, the appellant’s crime is not a particularly serious crime, as indicated by the sentence imposed. The appellant did plead guilty and has shown remorse for his actions. There is little or no indication that the appellant would re-offend. I accept also that there was not indication that the passport was obtained in an attempt to gain financially and I note, also in the appellant’s favour, that this was an isolated offence.
24. That said, it would have been obvious to the appellant that he was not entitled to use the passport in question. His actions in doing so show an element of disregard for the law and he deliberately chose his course of action.
25. The appellant will, I accept, be deported to a country where he has not lived for some 14 years but there has been little evidence of the difficulties he may face. It is, nonetheless, a factor which I take into account.
26. In SS (Nigeria) the Court of Appeal considered in particular [53-54 the weight to be attached to the public interest in deporting those to whom section 32 of the UK Borders Act 2007 applies.
27. Mr Nicholson seeks to distinguish SS (Nigeria) on the basis of the significantly more serious offending by the appellant in that case who had been sentenced to three concurrent terms of 3 years’ imprisonment for dealing in drugs. There is some merit in that submission; it is not suggested in SS (Nigeria) that the relative seriousness of an offence is not a factor, but what cannot be disregarded is the parliament has clearly expressed that the imposition of a sentence of one year’s imprisonment is such that the public interest is injured if the individual (if a foreign national) is not deported.
28. There is little merit in the submission that the sentencing judge did not recommend deportation; I am satisfied that he would have been aware of the automatic deportation provisions of the 2007 Act and the consequences of imposing a sentence of 12 months’ duration. Similarly, there is little merit in the submission that deportation is in effect double punishment or that it should not be used as a deterrent.
29. While I note that the appellant in SS(Nigeria) had lived in the United Kingdom for a shorter period than this appellant, in that case, family life was in issue, but it is not in issue here.
30. I consider that in this case, there is a significant public interest in deporting the appellant. He has been sentenced to a term of imprisonment of 12 months, and I consider that, notwithstanding the facts of his offending, that, in light of the pressing public interest in deporting foreign criminals, considerable weight is to be attached to that factor. I consider that, balancing that with the factors in his favour which are set out above, and taking into account all the submission and evidence put forward on his behalf, that the respondent has satisfied me that deporting the appellant to his home country would be a proportionate interference with his rights under article 8 of the Human Rights Convention. I therefore dismiss his appeal.
SUMMARY OF DECISIONS
1. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I set aside that decision
2. I remake the decision in the appeal by dismissing it
Signed Date 9th July 2013
J K H Rintoul
Judge of the Upper Tribunal