(Immigration and Asylum Chamber) Appeal Number: IA/14383/2012
THE IMMIGRATION ACTS
Heard at Field House
On 15th November 2013
On 25th November 2013
upper tribunal JUDGE RENTON
Isaac Paul Laing
(ANONYMITY ORDER NOT MADE)
For the Appellant: Mr B Lams, Counsel instructed by Scudamores Solicitors
For the Respondent: Mr G Saunders, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant is a male citizen of Jamaica born on 2nd February 1977. He first arrived in the UK on 31st October 1998 when he was given leave to enter as a visitor. The Appellant then overstayed, but eventually he was granted exceptional leave to remain as a spouse until 22nd July 2005. On 7th October 2005, the Appellant was sentenced to a term of four and a half years’ imprisonment for the offence of possession of a class A controlled drug with intent to supply namely crack cocaine to which the Appellant had pleaded guilty. He was released from prison in August 2007.
2. On 25th April 2007, the Respondent decided to deport the Appellant on the basis that to do so would be conducive to the public good. After a series of appeals which were ultimately unsuccessful, a Deportation Order was signed against the Appellant on 5th June 2008. The Appellant made further representations to the Respondent in August 2008 which were treated as an application to revoke the Deportation Order. After a series of legal manoeuvres, the Respondent eventually refused that application for the reasons given in a letter of 18th June 2012. The Appellant appealed that decision, and his appeal was heard by a panel chaired by First-tier Tribunal Judge Malone (the Panel) sitting at Taylor House on 15th July 2013. The Panel decided to allow the appeal under the Immigration Rules and on human rights grounds for the reasons given in its Determination of 18th July 2013. The Respondent sought leave to appeal that decision and on 9th October 2013 such permission was granted.
Error of Law
3. I must first decide if the Panel made an error on a point of law so that its decision should be set aside.
4. The findings of fact made by the Panel and upon which it based its decision are that the Appellant entered the UK on 31st October 1998 as a visitor and then overstayed until he was granted leave to remain as a spouse in 2001. On 9th December 2000 the Appellant married his wife known as Ms Laing. She is a British citizen born and raised in the UK where she has lived all her life. Ms Laing had a child from a previous relationship named Lavell born on 7th June 1996. He lived mostly with his father but visited his mother at weekends and stayed with her during holidays. The Appellant and Ms Laing had four children namely Natalia born on 24th February 2000, Tia born on 1st April 2003, Reko born on 30th June 2004 and Nashane born on 22nd December 2009. Ms Laing was expecting a further child due to be born in August 2013. The Appellant and Ms Laing have lived together since 1999 except for the period when the Appellant was imprisoned. In October 2005, upon his plea of guilty, the Appellant was sentenced to four and a half years’ imprisonment for the offence of possessing a class A drug with intent to supply namely crack cocaine. There was an incident of domestic violence between the Appellant and Ms Laing some time in 2009. The Appellant was remorseful for his crime, and had been a model prisoner. He has not used drugs since February 2005. The Appellant was a loving, dutiful, and “hands-on” father. Lavell considered him to be a second father. Based upon the evidence of Mr Horricks, an Independent Social Worker, the Panel found that the Appellant’s deportation would result in emotional turmoil for his wife and children and the collapse of the family. It was likely that the children would have to be taken into care. This was because Ms Laing suffered from depression and would not be able to cope by herself. The Appellant was the children’s main carer.
5. Finally, the Panel found on the basis of an assessment by a Parole Board that the risk of the Appellant reoffending was low and that the risk of harm to the public was also low. If the Appellant was deported to Jamaica, no meaningful family life could be adequately carried on from such a distance. Ms Laing and her children would not be able to afford to travel to Jamaica to visit the Appellant.
6. On the basis of these findings, the Panel allowed the appeal because it found the decision to refuse to revoke the Deportation Order to be disproportionate. The Panel considered the Appellant’s offending to be very serious, but following the decision in Sanade and Others (British children - Zambrano - Dereci)  UKUT 48 (IAC) the Appellant’s wife and children, who were British citizens, could not be expected to live in Jamaica with the Appellant as Jamaica was outside the European Union. Treating the best interests of the children as a primary consideration, the public interest was outweighed by other factors.
7. At the hearing, Mr Saunders argued that the Panel had erred in law in coming to this conclusion. He referred to the grounds of application and declined the opportunity to expand upon them.
8. In response, Mr Lams referred to the Skeleton Argument considered by the Panel and submitted that it had not made any error of law. The Panel had correctly interpreted the decision in Ruiz Zambrano Case C-34/09 as explained in Sanade. The Panel had carried out a proportionality assessment as required by the decision of the Court of Appeal in MF (Nigeria) v SSHD  EWCA Civ 1192. The Panel had attached the appropriate weight to the public interest but had been entitled to conclude that other factors carried more weight.
9. At the end of the hearing I found that there was no error of law in the decision of the Panel. I now give my reasons for that conclusion.
10. I find that I am in agreement with the submissions of Mr Lams. The Panel’s decision is based upon a proportionality assessment which it was bound to make. In carrying out that assessment, it is apparent from what is written at paragraphs 66 and 98 of the Determination that the Panel properly took into account the public interest and attached due weight to it. However, on the facts of this case it was open to the Panel to find that other factors carried a greater weight. There is no error of law in the Panel’s decision that Ms Laing and the children of the family could not be expected to settle in Jamaica with the Appellant. It was not perverse of the Panel to conclude that meaningful family life could not be conducted from a distance, and that the Appellant’s deportation would have a catastrophic effect upon this family probably resulting in the children going into care. The best interests of the children are a primary consideration and it was not perverse of the panel to find that the weight to be attached to them was greater than the weight to be attached to the public interest bearing in mind the facts that the Appellant had not offended since 2005; he had been free from drugs since February of that year; and that he was of a low risk of reoffending and of being a harm to the public.
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision.
The First-tier Tribunal did not make an order pursuant to Rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I am not persuaded that one is necessary.
Upper Tribunal Judge Renton