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

IAC-FH-AR-V1

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: DA/00246/2014

 

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 28 th August, 2015	On 7 th September, 2015

 

Before

 

Upper Tribunal Judge Chalkley

 

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

kervine kavuala

(ANONYMITY DIRECTION NOT MADE )

Respondent

 

 

Representation :

For the Appellant: Miss E Savage, Home Office Presenting Officer

For the Respondent: Mr E Kanu, League for Human Rights

 

 

DECISION AND REASONS

1. In this determination the Secretary of State for the Home Department is the appellant and to avoid confusion, I shall refer to her as "the claimant".

2. The respondent is a citizen of the Democratic Republic of Congo who was born on 24 ^th June, 1984, and is now 31 years of age.

3. On 29 ^th April, 2013, the claimant decided to take a deportation order against the respondent by virtue of Section 5(1) of the Immigration Act 1971, as amended "the 1971 Act". The respondent gave notice of appeal and his appeal was heard by First-tier Tribunal Keane, at a hearing conducted at Taylor House on 14 ^th June, 2015. Judge Keane's determination was promulgated on 19 ^th June, 2015. Judge Keane concluded that the claimant had discharged the burden of proving to the balance of probabilities that the respondent's circumstances fall to be considered under paragraph 398(c) of Statement of Changes in Immigration Rules, HC 395, as amended ("the immigration rules"). He went on to find that the respondent had discharged burden of proving to the standard of " probabilities" (I believe he meant balance of probabilities) that paragraph 399(a) and (b) and paragraph 399A of the immigration rules applied to the appeal. He found that the claimant's decision to make a deportation order would be contrary to the immigration rules and allowed the respondent's appeal.

4. The claimant, dissatisfied with the judge's decision, sought to challenge the judge's decision and the grounds upon which the claimant relied are set out at Appendix A of this determination. Upper Tribunal Judge Deans granted permission to appeal on 18 ^th July last. A copy of his grant of permission is set out in Appendix B of this determination.

5. In his determination, Judge Keane found that the claimant had discharged the burden of proving to the balance of probabilities that the gravamen of paragraph 398(c). He found that the respondent's offending had caused serious harm and that the respondent is a persistent offender who shows a particular disregard for the law. In paragraphs 17, 18, 19 and 20 of the determination he found that the four police officers who gave evidence to him were truthful. At paragraph 21 the judge made findings of fact, " wholly in line with the witness statements and oral evidence of PC Yeung, SMPO Hasse, PS Braithwaite and DS Turner". He also made findings of fact, " wholly in line with the CRIS Reports to which PC Yeung referred after each case summary in his witness statement".

6. The judge went on to find that the respondent did not tell the truth in respect of the same matters. He found that the respondent was not a refugee and did not have a profile or political profile in Congo and that nobody would remotely recall him upon his return to Congo. He found that the respondent had a generalised fear of conditions in the country of origin which he would rather not experience. However, the judge found that the respondent would be no more at risk of losing his life than any other member of the indigenous Congolese population. The judge dismissed both the refugee and Article 3 appeals. The judge went on to find at paragraph 22 of the determination, that paragraph 399A of the immigration rules applied to the appeal and he noted the concessions made by the Secretary of State which he recorded at paragraphs 22, 23 and 24 of the determination.

7. At paragraph 28 of the determination the judge found that it would be unduly harsh for the respondent's son to live in the Congo and noted that he was a British citizen by birth and had only ever lived in the United Kingdom. The judge also found that it would be unduly harsh for the respondent's son to remain in the United Kingdom without the respondent. The respondent has had a continuous connection with his son since his birth and plays a role, " and quite probably an important role" in the everyday life of his son. The judge found that paragraph 399B applied to the appeal.

8. At paragraph 30 the judge found that it would be unduly harsh for Miss Simpson, the respondent's partner, to go and live in the Congo, because of compelling circumstances over and above those described in paragraph EX2 of Appendix FM. Miss Simpson was born in the United Kingdom, had lived continuously in the United Kingdom and was a British citizen. Her child was a British citizen, her ties and connections lie exclusively within the United Kingdom and she lives in a property in London with her mother and sister. She has never been to Congo and lacks ties with Congo.

9. At paragraph 31 of the determination the respondent found that paragraph 399A of the immigration rules applied and, despite his earlier findings, found that the respondent is socially and culturally integrated into the United Kingdom for reasons which he sets out.

10. At the hearing before me, Miss Savage relied on the grounds. She suggested that the reasons for the judge's findings were wholly inadequate. . She told me that there was no independent evidence at all to support the Tribunal's findings that it would be unduly harsh for the respondent's child to remain in the United Kingdom without him or for his child to leave the United Kingdom.

11. She suggested, the judge had simply not applied BM and Others (Returnees - criminals and non-criminals) CG [2015] UKUT 293 (IAC).

12. She also suggested that there were no findings as to the respondent's credibility and the judge had erred by failing to consider whether the respondent's partner could remain in the United Kingdom without him. Whilst the judge found that the respondent was not truthful about his offending, the judge has made no findings as to the respondent's overall credibility. The claimant believes that the respondent has misled the judge in respect of his involvement in the life of his son, but even if his involvement was as he claimed, then the respondent has simply failed to demonstrate that his removal would lead to unduly harsh consequences for his son. The child's mother has been the primary carer for the child since birth and the Tribunal have failed to identify what effects there would be on the respondent's child were he to remain in the United Kingdom with his mother. Similarly the Tribunal's findings as to whether or not it is unduly harsh for the child to leave the United Kingdom are inadequate. Even though the appellant's child is a British citizen, that fact would not prevent him from relocating to Congo. He is not yet of school age and the judge failed to adequately identify any factors that would meet the high threshold that would make it unduly harsh for his child to leave the United Kingdom.

13. Similarly, the judge erred in his assessment of paragraph 399(b) by failing to make any findings as to whether it would be unduly harsh on the respondent's partner to remain in the United Kingdom without him in accordance with paragraph 399(b)(iii). By failing to identify factors that would make it unduly harsh for Miss Simpson to remain in the United Kingdom the Tribunal had erred.

14. The Tribunal had further erred, she submitted, because the factors identified by the Tribunal at paragraph 31 of the determination do not meet the high threshold necessary to show that there would be significant obstacles to the respondent's integration in Congo in accordance with paragraph 399A(c). They failed to take into account the fact that the appellant speaks French, that he was 30 years of age at the time of the determination and that his family in the United Kingdom would be in a position to provide him with support and temporarily help him if they chose to do so. The respondent had failed to prove that there would be very significant obstacles to his integration.

15. Mr Khan, responding on behalf of the respondent, suggested that there was no material error and that the judge had very carefully looked at all the evidence. It was not in dispute that the respondent had a son and partner who were both British subjects. He submitted that the deportation order itself was illegal.

16. He submitted that the Secretary of State was wrong to make a deportation order because a deportation order may not be made under paragraph 3(5) against someone who has leave to remain in the United Kingdom. I pointed out that paragraph 3(5) applied to anyone who was not a British citizen.

17. Mr Khan suggested that the decision was illegal because the judge took into account matters where the appellant had been either not charged with any offence, or been acquitted of the offence. I drew his attention to paragraphs 16 to 21 inclusive.

18. Mr Khan suggested that at paragraph 32 of the determination the judge had found the respondent to be credible. So far as the allegations of the judge misconstrued the meaning of "unduly harsh" are concerned, he again referred me to paragraph 32.

19. Miss Savage referred me to paragraph 80 of MAB (paragraph 399; "unduly harsh") USA [2015] UKUT 435 where the Tribunal discussed the meaning of "unduly harsh":-

"In our judgment, Judge Holder erred in law by failing to give adequate reasons and in reaching an irrational conclusion that the impact upon the appellant's children of remaining in the UK was 'unduly harsh'. Further, in our judgment, the evidence did not establish that the consequence of his deportation for them remaining in the UK was 'unduly harsh'. Applying the meaning of 'unduly harsh' set out in MK that it does not equate with 'uncomfortable, inconvenient, undesirable or merely difficult' circumstances, we have no doubt that the circumstances identified by the judge could not be equated to 'unduly harsh' consequences for the children. It could not properly be established that the effect on them of the appellant's deportation was excessive, inordinate or severe. The only proper finding, and one we make, is that the effect on the children has not been established to be 'unduly harsh'."

20. She submitted that the judge had erred by failing to consider and apply the correct test.

21. As to the respondent's partner, the decision in Agyarko v Secretary of State for the Home Department [2015] EWCA Civ 440 provides assistance. At paragraphs 21 to 24 the Court of Appeal said this:-

"21. The phrase 'insurmountable obstacles' as used in this paragraph of the Rules clearly imposes a high hurdle to be overcome by an applicant for leave to remain under the Rules. The test is significantly more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the United Kingdom .

22. This interpretation is in line with the relevant Strasbourg jurisprudence. The phrase "'insurmountable obstacles' has its origin in the Strasbourg jurisprudence in relation to immigration cases in a family context, where it is mentioned as one factor among others to be taken into account in determining whether any right under Article 8 exists for family members to be granted leave to remain or leave to enter a Contracting State: see e.g. Rodrigues da Silva and Hoogkamer v Netherlands (2007) 44 EHRR 34 , para. [39] ('... whether there are insurmountable obstacles in the way of the family living together in the country of origin of one or more of them ...'). The phrase as used in the Rules is intended to have the same meaning as in the Strasbourg jurisprudence. It is clear that the ECtHR regards it as a formulation imposing a stringent test in respect of that factor, as is illustrated by Jeunesse v Netherlands (see para. [117]: there were no insurmountable obstacles to the family settling in Suriname, even though the applicant and her family would experience hard ship if forced to do so).

23. For clarity, two points should be made about the 'insurmountable obstacles' criterion. First, although it involves a stringent test, it is obviously intended in both the case-law and the Rules to be interpreted in a sensible and practical rather than a purely literal way: see, e.g., the way in which the Grand Chamber approached that criterion in Jeunesse v Netherlands at para. [117]; also the observation by this court in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 ; [2014] 1 WLR 544, at [49] (although it should be noted that the passage in the judgment of the Upper Tribunal in Izuazu v Secretary of State for the Home Department [2013] UKUT 45 (IAC); [2013] Imm AR 453 there referred to, at paras. [53]-[59], was making a rather different point, namely that explained in para. [24] below regarding the significance of the criterion in the context of an Article 8 assessment).

24. Secondly, the 'insurmountable obstacles' criterion is used in the Rules to define one of the preconditions set out in section EX.1(b) which need to be satisfied before an applicant can claim to be entitled to be granted leave to remain under the Rules. In that context, it is not simply a factor to be taken into account. However, in the context of making a wider Article 8 assessment outside the Rules, it is a factor to be taken into account, not an absolute requirement which has to be satisfied in every single case across the whole range of cases covered by Article 8: see paras. [29]-[30] below ."

22. The findings made by the judge do not, Miss Savage suggested, meet paragraph EX1 of Appendix FM.

23. Mr Kanu referred me to paragraphs 22, 23, 24 and 25 of the judge's determination. He submitted that this undermined the claimant's claims. The Secretary of State had plainly acted illegally by relying on evidence alleging criminal activity on the part of the respondent, without there being any criminal conviction and in one case an acquittal. The respondent's child and partner could not possibly go to Congo. It would be unduly harsh for the respondent to go there in all the circumstances. He asked me to dismiss the appeal.

24. At paragraph 28 of the determination the judge noted that Chey'von, the respondent's son, was born a British citizen and had only ever lived in the United Kingdom. He was born on 21 ^st April, 2012 and resides with his mother, Miss Simpson, his grandmother and Miss Simpson's sister, Chey'von's aunt. The judge noted that the family unit was settled and if Chey'von were to be removed to Congo, he would be separated from a large part of it. At the age of 3 he does not know Congo and bearing in mind the evidence of his mother, the judge found that it would be unduly harsh for them to go and live in Congo. He also found that it would be unduly harsh for Chey'von to remain in the United Kingdom without the respondent because the respondent is the natural biological father of Chey'von and has had a continuous connection with him since his birth. The judge noted that the respondent played a role in the day-to-day life of Chey'von and as the judge put it, "quite probably an important role".

25. Neither representative drew it to my attention the MAB was decided after this appeal was heard.

26. I have concluded that the First-tier Tribunal Judge did err in law in his determination. IDI, Chapter 13: Criminality Guidance in Article 8 ECHR cases at paragraph 2.5.2 and 2.5.3 says this:

"When considering the public interest statements, words must be given their ordinary meaning. The Oxford English Dictionary defines 'unduly' as 'excessively' and 'harsh' as 'severe, cruel'".

27. Paragraph 2.5.3 says this:

"The effect of deportation on a qualifying partner or qualifying child must be considered in the context of the foreign criminal's immigration and criminal history. The greater the public interest in deportation, the stronger the countervailing factors need to be to succeed. The impact of deportation on a partner or child can be harsh, even very harsh, without begin unduly harsh, depending on the extent of the public interest in deportation and of the family life affected."

28. At paragraph 2.5.4 the IDI says this:-

"For example, it would usually be more difficult for a foreign criminal who has been sentenced more than once to a period of imprisonment for at least twelve months but less than four years to demonstrate that the effect of deportation would be unduly harsh than for a criminal who has been convicted of a single offence, because repeat offending increases the public interest in deportation and so requires a stronger claim to respect for family life in order to outweigh it."

29. And at paragraph 3.5.2 the IDI says:-

"When considering whether the effect on a child of deporting a foreign criminal is unduly harsh, the strength of the family life claim, including the best interests of the child, must be balanced against the public interest in deportation. As a general principle, the greater the public interest in deporting the foreign criminal, the more harsh the effect of deportation must be on the child before it is considered unduly harsh."

30. In MK (Section 55 - Tribunal options) Sierra Leone [2015] UKUT 223 (IAC) the Tribunal said in relation to "unduly harsh":-

" The determination of the two questions which we have posed in [44](d) above requires an evaluative assessment on the part of the Tribunal. This is to be contrasted with a fact finding exercise. By way of self-direction, we are mindful that 'unduly harsh' does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. 'Harsh' in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb 'unduly' raises an already elevated standard still higher."

31. Whilst the judge could not have been referred to the decision of the Tribunal in MAB since it had not been promulgated at the date of the hearing before the First-tier Tribunal, I believe he did err by failing to appreciate properly its meaning.

32. I believe that the judge also erred in paragraph 31 by failing to show that there were "very significant obstacles" under paragraph 399A to the appellant's integration in Congo. The judge notes that it was not suggested to him that he has any family in Congo who might assist or support him on his return but fails to recognise that there was no evidence that he did not have any family members still in Congo. He also erred by failing to consider whether family members in the United Kingdom might be in a position to provide, at least temporary assistance while the appellant finds accommodation and employment on his return to Congo. The judge fails to take account of the fact that the appellant is a 30 year old male who is fit and healthy.

33. Bearing in mind paragraph 7 of the Senior President's Practice Direction I have concluded that I must remit this appeal to be heard by a First-tier Tribunal Judge other than Judge Keane.

34. The findings at paragraphs 16 to 25 are to stand. The issues for the Tribunal are whether, given the correct meaning of the "unduly harsh" test it would be unduly harsh for the appellant's partner and child were the appellant to be removed while they remain in the United Kingdom and to decide whether there are very significant obstacles under paragraph 399A(c) to the appellant's integration in Congo were he to be removed.

 

 

Richard Chalkley

Upper Tribunal Judge Chalkley                             3^rd September, 2015

Appendix A referred to

Appendix B referred to

Richard Chalkley

Upper Tribunal Judge Chalkley                             3^rd September, 2015