(Immigration and Asylum Chamber) Appeal Number: HU/09534/2017
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 22 nd January 2019
On 1 st February 2019
LORD BECKETT SITTING AS AN UPPER TRIBUNAL JUDGE
UPPER TRIBUNAL JUDGE GILL
(ANONYMITY DIRECTION made)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Whilst no anonymity direction was made earlier in the proceedings, we now make an anonymity direction because the case involves a child. 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 his 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.
The parties at liberty to apply to discharge this order, with reasons.
For the Appellant: Mr Bazini, Counsel, instructed by Karis Solicitors Ltd.
For the Respondent: Mr Clarke, Senior Home Office Presenting Officer
DECISION AND REASONS
• A complaint that the FtT judge had applied the higher test under section 117C(6) of the 2002 Act when the appropriate test was that contained in section 117C(5);
• The FtTJ had failed adequately to address the best interests of his daughter whose interests were a paramount consideration.
"In KO, the Court held that the "unduly harsh" test was to be determined without regard to the criminality of that parent, the severity of the relevant offences or indeed the criminal's immigration history.
That being the case, the FTTJ's decision contained material errors of law rendering the decision unlawful and unsafe. The FTTJ plainly adopts the approach of MM Uganda (see para 102 and 106 etc) which was held to be wrong in KO.
It is plain that in his deliberations which effectively take place from paras 106 onwards, that the FTTJ has firmly and mostly in his mind the criminality and immigration history of the appellant. Indeed this makes up the bulk of his consideration (see paras 1060108 and 110-112). Even if the FTTJ had made a clear finding on the unduly harsh test it would be clear that in doing so he had fallen foul of the lawful approach identified in KO. "
Submissions for the Secretary of State
Submissions for the appellant
The facts of the case
• In para 102, he referred to MM (Uganda) at paras 24 and 26, and noted how the Court of Appeal had interpreted the meaning of unduly harsh;
• In para 104 he noted observations of the Court of Appeal in AJ (Zimbabwe) at para 17 to the effect that whilst it will almost always be in the best interests of a child for their relationship with their father to continue without interruption, that cannot ordinarily outweigh the public interest in deportation. Lord Elias had concluded that paragraph of his judgement by stating:
"In order to establish a very compelling justification overriding the high public interest in deportation, there must be some additional feature or features affecting the nature or quality of the relationship which take the case out of the ordinary."
• In para 105 he noted that in Olarewaju the court had found that for an appellant who could not fall within the exceptions, there were not compelling circumstances over and above the scope of the exceptions.
"112. As to whether it is unduly harsh for the appellant to be deported whilst his daughter remains in this country, in my view of the evidence overall, I do not find that to be so. The public interest here I find very strongly falls to be struck in favour of the Respondent and that is the position with respect to my assessment of proportionality. I do not find that very compelling circumstances have been established or that the Appellant brings himself within the exceptions set out in either the Immigration rules or within the 2002 Act."
"...Further the word "unduly" implies an element of comparison. It assumes that there is a "due" level of "harshness", that is a level which may be acceptable or justifiable in the relevant context. "Unduly" implies something going beyond that level. The relevant context is that set by section 117C (1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent's offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence...."
33. For the reasons we have given, we set aside the decision of the judge to dismiss the appellant's appeal.
34. Whilst there were some positive findings made by the judge in the appellant's favour, Mr Bazzini accepted that the appeal should be heard afresh. We agree that this is the appropriate course of action, given that the judge did not assess the credibility of the evidence before him.
35. However, we direct that paras 30-71 of the judge's decision shall stand as the record of the evidence given before him.
"(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal."
38. In our judgment, such is the extent of the credibility assessment and fact-finding that is required to be carried out, given the considerable amount of evidence that was before the judge and the fact that the judge had not assessed credibility, that this case falls within para 7.2 (b). We therefore agree with the parties that this appeal should be remitted to the First-tier Tribunal on the merits on all issues.
Notice of Decision
The decision of Judge of the First-tier Tribunal Buckwell involved the making of errors on points of law such that his decision to dismiss the appeal is set aside.
This appeal is remitted to the First-tier Tribunal for fresh hearing on the merits on all issues by a judge other than Judge of the First-tier Tribunal Buckwell.
An anonymity direction is made.
Lord Beckett sitting as an Upper Tribunal Judge.