The appellant in the case, first arrived in the United Kingdom lawfully in 1991, when he was 6 years old to live with his Father, who lived and was settled in the United Kingdom. He was since granted ILR in 1999, and has lived in this country for the last 21 years.
From 1999 to 2009, the appellant persistently offended, committing mainly driving or drug possession offences.
On April 2010, the Secretary of State decided to deport the applicant on the grounds of being a persistent offender.
Appellant appealed to the first-tier tribunal, on the grounds of his long residence and on the basis of being the father of, and maintaining strong relations with, a child who is a British citizen.
In June 2010 the appeal was heard, and dismissed. Appellant tried to draft own grounds of appeal, but appeal refused by First-tier tribunal, and was not renewed to the upper-tribunal within the time-limit.
Deportation order signed in July 2011. Appellant’s legal representation applied for Deportation order to be revoked, this was dismissed by the Secretary of State, and the deportation order was certified under section 94 NIA (Nationality, Immigration Asylum Act 2002), which also removed the Appellant’s right to appeal in country.
Removal directions were set for February 2012, the Appellant applied for judicial review on the day he was to be removed; the Secretary of state deferred the removal directions.
In March 2012, the appellant’s new legal team applied made an out of time application to the Upper Tribunal against the decision of the first-tier tribunal. In June 2010.The application was granted by an Upper Tribunal judge in March 2012.
The Grant of Permission to Appeal:
– Error of Law: The Upper Tribunal judge expressed concern that there was no reason attached to the decision in the First-Tier tribunal not attach any weight to a letter which was written by the mother of the Appellant’s child, a British Citizen, confirming that the Appellant had and was maintaining a healthy relationship with his daughter.
– Out of time Application: The principle reason given in the out of time application for the Appellant’s failure to submit an in-time appeal in 2010 after the decision was given by the first-tier tribunal, was that the Appellant had been given the wrong advice by his previous legal team.
Revised SSHD Decision Letter:
In response to the grant of Appeal the SSHD provided a new letter maintaining that the SSHD was correct in its decision to deport the Appellant, by virtue of 399(a), 399(b) and 399A of the Immigrations Rules.
Within these provisions the SSHD concluded; that the Appellant was not in a subsisting relationship with his son (JT); that (JT) was being looked after by his Mother (CT); that the Appellant had not proved that there were insurmountable obstacles to his family and private life with (JD), his partner; that he failed to prove that he was in a genuine and subsisting relationship with his partner; that he failed to prove that he had no ties in Nigeria
In addition the Secretary of State concluded that the Appellant 30 Offences triggered the application of paragraph 398(c) of the Immigration Rules which warranted the deportation of the Appellant as he was a persistent offender and therefore it was conducive to the public good to deport him.
Relevant Law:
Sections 3(5) 3(6) of the Immigration Act1971 set out three circumstances in which a person is liable for deportation, one of which was relevant in this case; where deportation is conducive to the public good.
Immigration Rules as amended by HC 194 changed the rules on the grounds of deportation:
“A362. Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 9 July 2012 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.
362. A deportation order requires the subject to leave the United Kingdom and authorises his detention until he is removed. It also prohibits him from re-entering the country for as long as it is in force and invalidates any leave to enter or remain in the United Kingdom given him before the Order is made or while it is in force.
363. The circumstances in which a person is liable to deportation include:
(i) where the Secretary of State deems the person’s deportation to be conducive to the public good;
…
397. A deportation order will not be made if the person’s removal pursuant to the order would be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.
398. Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, t
The Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.
399. This paragraph applies where paragraph 398 (b) or (c) applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would not be reasonable to expect the child to leave the UK; and (b) there is no other family member who is able to care for the child in the UK; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and
(i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision
(discounting any period of imprisonment); and
(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK.
399A. This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or
(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.”
Relevance if new Immigration Rules to the decision:
SSHD argued that the new immigration rules were determinative on the issue of Article 8, in their assessment of engagement and proportionality.
The Upper Tribunal quoted the decision in MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC), where the tribunal in that case concluded that the new immigration rules were not conclusive of the Article 8 issue. Instead, to be conclusive of the Article 8 issue two questions had be satisfied (i) whether the decision is in accordance with the Rules and (ii) whether it is accordance with the law as interpreted by the senior courts whose decisions are binding.
Whether the decision was in accordance with the new Immigration Rules:
The Upper Tribunal accepted the counsel for the Appellant’s submission that under the Immigration rules the Appellant qualified for deportation under para 398 (C) for being a persistent offender, however the deportation of the Appellant would not go ahead if he met the requirements set in para 399(a) or para 399(b).
The Upper Tribunal were concerned as to whether this rule should be read literally so as to limit or diminish any appellants’ and their childrens’ Article 8 right to private and family life, in the context of where the Appellant had a subsisting relationship with a child who is a British citizen present and settled in the UK, but that this factor would weigh less heavily if there was any person able to care for the child. Furthermore the assessment of the appellant and the appellant’s child’s Article 8 rights were focused solely on whether there was another person able to care for the child, irrespective of whether the child’s welfare and best interests required regular contact with the parent who faced removal. Therefore the implications of such an interpretation by the Immigration rules would result in the severe diminishment of the Appellant and his child’s Article 8 rights, if there were another person able to care for the child, and also because of the Immigration Rules abandonment as to the best interests and welfare of the child; therefore severely reducing the weight of the Appellant’s Article 8 factors in the overall assessment of proportionality.
To this extent the Upper Tribunal asked the Secretary of State for further instruction as regards this issue.
The SSHD replied:
ii. As to Paragraph 399(a)(i)(b), “[a]ssessing whether a parent’s involvement is ‘needed’, whilst appropriate in family law proceedings, would create a new and inappropriate test for determining Article 8 considerations in deportation cases… The person facing deportation can succeed under these rules where they can show no alternative family member is able to [provide adequate] care for the child… the rules…reflect the possibility that…separation [between parent and child] may not be in the child’s best interest. ”
The Tribunal noted that this Immigration Rule did not recognize the welfare and best interests of the child and did not consider that it might be very important to the child to maintain a relationship with his/her birth parent even if cared for another person. Furthermore the Immigration Rule did not reflect the best interests of the child as enshrined in Article 3 UN Convention on the Rights of the Child 1989, which has since been imported into Article 8 considerations through case-law notably ZH Tanzania [2011] UKSC 4, as well as section 55 of the Borders, Citizenship and Immigration Act 2009.
Therefore the Upper Tribunal gave little consideration of this Immigration Rule in the overall assessment of Article 8.
As regards the Immigration Rule 399 (b), the Upper Tribunal rejected the assertions made by the counsel for the Secretary of State, that the Appellant was not in a subsisting relationship with JD, that the evidence given should be dismissed on credibility grounds as the dates given by the Appellant were inconsistent, despite JD submitting a witness statement and submitting herself for cross examination, and the witness statement of the Appellant’s Father, also confirming the existence of the subsisting relationship between the Appellant and JD.
The Upper Tribunal examined the Immigration Rule 399 (b)(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK.
The Upper Tribunal quoted the decision in Sanade and others (British children – Zambrano – Dereci) [2012] UKUT 48 (IAC), where it was conceded by the Assistant Director UKBA and Head of European Operation Policy. That where a third country national could not reside in the host country on Article 8 grounds, that if there dependents were British citizens, that they cannot be relied to leave the UK as a matter of law, therefore causing the existence of an ‘insurmountable obstacle’ to the family unit. This has been enforced by Izuazu [2013] UKUT 45 (IAC).
Therefore the Upper Tribunal did not accept the Counsel for Secretary of State’s original assessment that there were no insurmountable obstacles facing the Appellant in returning to Nigeria, as it cannot be expected for the Appellant’s child and his current partner (JD) to relocate outside the UK.
Furthermore in the larger Article 8 assessment, as defined by established case-law, the Upper tribunal, which did not give much consideration to Immigration rules para 399 (a), ruled that the severity of the interference to the Appellant’s clearly established private and family life was not proportionate to the public need for a practicable, working immigration system.
Conclusion:
The following grounds were challenged by the Upper Tribunal:
– That the Immigration rules were determinative of Article 8 issues, therefore even if the deportation was in accordance with Immigration Rules, it may still be in accordance with established case-law.
– Para 399 (a) – that this immigration rule did not accurately reflect established case-law and primary statutory legislation.
– Para 399 (b)(ii) – that insurmountable obstacles did exist.
– That after a general Article 8 assessment, the severity of interference to the lives of the Appellant and the Appellant’s partner, and child, was not proportionate to the public good need for a practicable, working immigration system.
Therefore the Upper Tribunal concluded that the deportation would be unlawful under section 6 Human Rights Act 1998 and accordingly not in accordance with the law within the meaning of the Nationality, Asylum and Immigration Act 2002.
What’s going on with Article 8 