Secretary of State for the Home Department v AB

The Secretary of State has appealed with permission granted by the Upper Tribunal on 8 June 2015 against the decision of a Judge of the First-tier Tribunal (Immigration and Asylum Chamber) (hereafter the “judge” unless otherwise stated) promulgated on 30 January 2015, following a hearing on 15 December 2014, by which he allowed the appeal of Mr A B (hereafter the “claimant”) under the Immigration Rules (hereafter the “IRs”) against a decision of the Secretary of State of 15 May 2014 (served on 21 May 2014) to make a deportation order by virtue of s.3(5)(a) of the Immigration Act 1971. The decision followed the claimant's conviction at Snaresbrook Crown Court on 10 July 2006 of three counts of having a false instrument with intent and one count of handling of stolen goods in respect of which he was sentenced on 8 September 2006 to 12 month’s imprisonment for each count, to run concurrently.

The claimant has other convictions as described at [6]-[8] below and a caution for the offence described at [17] below.

The claimant is a national of Algeria. He first arrived in the UK on 23 May 1997 from France with his brother who had leave to remain in the UK. The claimant used a false French passport. He was interviewed. He said he had in his possession a visa to enter Italy which he had obtained personally by attending the Italian Embassy in Algeria. He also said he held a Turkish visa to travel to Istanbul which was also obtained in Algeria. He said that his brother and sister had financed his travel to London. During the interview he stated that he did not claim asylum in Italy as he thought that London was better than Italy. Following the interview he was refused entry to the UK and returned to Genoa.

The claimant arrived for the second time in the UK on 25 August 1997. He did not claim asylum until 10 November 1998. His asylum claim was refused on 29 August 2001. His appeal against the refusal was dismissed on 7 March 2003 and his appeal rights were exhausted on 26 March 2003.

The claimant claims to have met his partner, Ms L P (hereafter “Ms P”), a Colombian national, in 2002. She entered the UK on a student visa valid until 30 November 2003. They married on 17 December 2003 at a time when neither had any valid leave to remain in the UK. The marriage certificate gives the claimant's false French name and identity.

On 18 July 2003 at City of London Magistrates’ Court, the claimant was convicted of fraudulently using a vehicle licence and using a vehicle whilst uninsured. He also failed to surrender to custody at the appointed time. His licence was endorsed with six points and he was fined a total of £335 plus costs.

On 28 October 2003 at Cambridge Magistrates’ Court he was convicted of shoplifting for which he received a twelve month conditional discharge and ordered to pay costs.

On 19 December 2003 at Highbury Corner Magistrates’ Court he was convicted of driving an unlicensed taxi and using a vehicle whilst uninsured for which he was fined £250, disqualified from driving for nine months and his licence was endorsed.

On 7 June 2004, the claimant and his wife had a daughter (hereafter “S”). S was 9 years old at the date of refusal letter dated 15 May 2014 and 10 ½ years old at the date of the hearing before the judge. In line with her mother, she is a Colombian national. She has since been naturalised as a British citizen (the judge’s decision inconsistently states both that she is a British citizen and that she is not). S’s name on her birth certificate is that of the claimant’s alias.

It is not known at what date the claimant and his wife left the UK but they both re-entered from Spain on 18 September 2005. The French passport that the claimant used on arrival at Heathrow was found to be forged. He and his wife were both stopped by Immigration Officers. They were both refused leave to enter. They were removed to Spain the same day. At the time it was unclear where S was living.

It is known that the claimant left Spain alone. He travelled to France. He obtained a false document for his wife. He subsequently mailed it to her in Spain. His wife then re-entered the UK on 20 October 2005 travelling on a false French passport. They were both arrested on 3 February 2006 for handling stolen goods. As a result of the forged documents the leave that Ms P had fraudulently obtained as the spouse of a claimed EEA national was cancelled and she was served with illegal entry papers. During the interview the wife stated that she and the claimant had parted ways when the claimant returned to Spain and claimed that the claimant left Spain for France. It is not known on what date the claimant re-entered the UK.

On 10 July 2006 at Snaresbrook Crown Court the claimant was convicted of offences described at [1] above in respect of which, on 8 September 2006, he received the sentence of twelve months’ imprisonment referred to at [1] above.

On 14 January 2008, the claimant's second daughter (hereafter “A”) was born. At the date of the refusal letter, she was 6 years old and, at the date of the hearing before the judge, she was nearly 7 years old. She is a Colombian national. She has no leave or status to remain in the UK. A’s name on her birth certificate is that of the claimant’s alias.

On 17 August 2009, the claimant applied for leave under the Secretary of State’s so-called “legacy programme”. His case was subject to investigation by the Case Resolution Directorate. The Home Office was alerted to the claimant's previous criminal convictions and his case was transferred to the Criminal Casework in Liverpool where deportation was considered.

On 13 June 2012, the claimant was informed of his liability for deportation. In a letter dated 28 June 2012 reference was made to the reasons why he should not be deported from the UK. A decision to make a deportation order was made on 18 August 2012. The appellant appealed against that decision. Due to deficiencies in the refusal letter the claimant's case was withdrawn at appeal for reconsideration by the Home Office.

In a letter dated 30 April 2013, the claimant’s representatives submitted a further letter stating reasons why he should not be deported from the UK. As part of the temporary admission he was required to report monthly to Becket House Reporting Centre. The records indicate that he failed to report on 12 December 2013.

On 22 December 2013 the claimant was arrested by Kent Police for shoplifting. He had removed all the tags but the stolen items were recovered. He was cautioned. When arrested he provided false details stating that he was known by another name with another date of birth and another nationality (French). It was only after Livescan results were received that his true identity came to light.

The relevant legal provisions are ss.117B-D of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) and paras 398, 399 and 399A of the IRs.

Ss.117A-D of the 2002 Act, which came into effect on 28 July 2014, provide as follows:

Given that an issue which arises in this case is whether the judge applied the correct version of the IRs, it is necessary to note that HC 352 amended paras 398, 399 and 399A of the IRs with effect from 28 July 2014. The words added by HC 352 are in bold below and the words deleted are crossed and in square brackets. As at the date of the Secretary of State's decision on 15 May 2014, the rules that applied were the same as those in force on 27 July 2014, i.e. immediately prior to HC 352 coming into effect.

The judge did not consider para 399A in terms, although he said (at [73]) that Exception 1 referred to at s.117C(4) does not apply because (he said) “It cannot be said that “very significant obstacles” exist to the integration of the [claimant] in Algeria ”. Given that he did not make any reference to para 399A in his decision, it is not known whether, if he had considered para 399A, he would have applied the version of para 399A that was in force as at 27 July 2014 which provided for the requirement that the individual “ 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 the “ very significant obstacles ” criterion in the version of para 399A that came into force on 28 July 2014. The significance of this will become apparent from my assessment later on in this decision.

As for para 399(a), the judge did not carry out an assessment of whether it was unduly harsh for the children to leave the UK or remain in the UK without the claimant, although he considered whether it would be unreasonable to expect the claimant's children to leave the UK. At [69], the judge said that he was satisfied that “[ Ms P] can remain to look after the two girls but the damage to the family life of the two girls with the [claimant] and the [claimant] with the two girl [sic] satisfie[d] [him] that the claimant’s right to family life outweighs the public interest in seeing him deported” . In his concluding paragraph ([74]), he said that he found that “ it would be unduly harsh on the two children to deport the [claimant]”.

As for para 399(b), the judge said (at [70]) that he considered whether there would be insurmountable obstacles to family life between the claimant and his wife continuing outside the UK. He did not make a clear finding in this respect and did not carry out an assessment as to whether it would be unduly harsh for Ms P to leave the UK or remain in the UK without the claimant. However, in his concluding paragraph ([74]), he said that he found that “it would be unduly harsh on [Ms P] if [the claimant] was to be deported”.

I shall now quote [61]-[74] of the judge's decision:

There are three grounds. At the commencement of the hearing before me, the parties agreed that ground 3 commences at para 8 of the grounds, not para 13.

The three grounds may be summarised as follows:

Mr Farhat submitted that, given that the First-tier Tribunal (“FtT”) had refused permission, the grounds before me were limited to those specifically mentioned in the decision of Upper Tribunal Judge McWilliam dated 8 June 2015 granting permission. Accordingly, he submitted that ground 3 was not before me.

Judge McWilliam's decision reads as follows:

I ruled that, as Judge McWilliam had not said that she refused permission on those grounds that were not referred to at [2] of her decision, all of the grounds were before me. My reasons are as follows:

Mr Avery relied upon the grounds and addressed me briefly to elaborate them. Mr Farhat submitted a skeleton argument at the commencement of his submissions in reply. I took issue with the fact that the skeleton argument was submitted so late, the important point being that Mr Avery had completed his opening submissions but had not had the opportunity to even see the skeleton argument. It was not possible for me, without putting at risk my ability to complete my list, for me adjourn the hearing for a short while in order to enable Mr Avery and me to read the skeleton argument. If the skeleton argument had been handed to Mr Avery and to my clerk before the time listed for the hearing to begin (10 am), the difficulty could have been avoided. As I did not consider it fair to the appellants in the other cases to risk my not being able to reach their cases, I informed Mr Farhat that if, upon my reading his skeleton argument in my own time, I find I have questions on the basis of the material before me, I will resolve those issues on such material as is before me and bearing in mind the potential prejudice to Mr Avery who had not had an opportunity to see the skeleton argument.

I shall first deal with ground 1 beginning with the argument summarised at 26.i) c) above which I can dispose of in brief terms. The judge did not allow the appeal outside the IRs. He made it clear in the single sentence under the heading “ Notice of Decision ” at the end of [74] of his decision that the appeal was allowed under the IRs. Accordingly, ground 1 c) is misconceived.

The remainder of ground 1, in particular ground 1.a) is important. Mr Farhat’s skeleton argument does not deal with it, as the position taken in the skeleton argument is that the grounds before me were limited to those specifically mentioned by Judge McWilliam, a submission which I rejected at the hearing, as stated above. Nor did Mr Farhat address me on ground 1 at the hearing. Nevertheless, the claimant has had ample notice of the Secretary of State's grounds.

Before turning to deal with ground 1.a), it is appropriate to deal with head note 3 of Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 00060 (IAC) upon which Mr Farhat relied albeit in the context of ground 2. Head note 3 of Ogundimu reads:

Mr Farhat submitted that the judge did not err in his consideration of para 399(a). He was entitled to place little weight on para 399(a) given the guidance in head note 3 of Ogundimu to which he specifically referred.

However, it is clear from [80] of the determination in Ogundimu that the Tribunal in that case was considering the version of para 399(a) that was in force prior to 28 July 2014. There are two paragraphs in the determination in Ogundimu which provide the context in which the head note 3 of Ogundimu was formulated. These are [95]-[96] which read (the emphasis is mine):

The underlined text, in particular, the final sentence of [96] of Ogundimu, shows that head note 3 arose from the Tribunal's concern about the requirement in the now deleted para 399(a)(b), that “ there is no other family member who is able to care for the child in the UK”. Head note 3 of Ogundimu cannot apply to the current version of paragraph 399(a) given not only that this criterion was deleted with effect from 28 July 2014 but also that the phrase “ unduly harsh ” in the version of para 399(a) that came into effect from 28 July 2014 can accommodate consideration of the best interests of a child pursuant to the Secretary of State's duty under Article 3 of the UN Convention on the Rights of the Child 1989.

As stated above, the amendments to the IRs that are shown at [20] above came into effect on 28 July 2014, i.e. between the date of the Secretary of State's decision of 15 May 2014 and the date of the hearing on 15 December 2015. The judge should therefore have applied the version of the IRs that came into force on 28 July 2014.

However, an analysis of the judge's reasoning from [61]-[74] of his decision shows that he in fact applied the wrong version of para 399. My reasons are given at [39]-[46] below.

The only paragraph in which the judge mentioned the phrase “ unduly harsh ” is at [74] where he said that Exception 2 in s.117C(5) applies. It is clear therefore that he was aware that Exception 2 required consideration of the issue of undue hardship as regards the impact on the claimant’s wife and on his children of his being deported. However, there is no mention of the phrase “ unduly harsh ” at [61]-[72] where he assessed whether the claimant’s could meet the requirements of paras 399(a) and (b). One would have expected specific engagement with the criteria of “undue hardship” if the judge had considered the correct version of para 399(a) and (b) at [61]-[72].

Instead, in his assessment of paras 399(a) and (b), the judge considered:

These are the requirements in the previous version of the IRs. The criteria of whether it is reasonable for children to leave the UK and whether there are insurmountable obstacles to family life continuing between a claimant and his/her partner do not apply in the version of para 399(a) and (b) that came into force on 28 July 2014.

Accordingly, read as a whole, it is abundantly clear that the judge applied the version of para 399(a) and (b) that was in force as at 27 July 2014 and not the version of para 399(a) and (b) that came into force on 28 July 2014. This explains why he considered the reasonableness of S and A leaving the UK, whether Ms P could remain in the UK to look after the children and whether there were insurmountable obstacles to family life between the claimant and his wife continuing outside the UK. It explains why he applied head note 3 of Ogundimu .

Although the judge was aware that Exception 2 of s.117C required consideration of whether the effect of deportation on the claimant's wife and the two children would be unduly harsh, he was completely unaware of the fact that the new para 399(a) and (b) dovetails with Exception 2 of s.117C(5) by providing that undue hardship is to be decided by considering whether it would be unduly harsh for the partner/child or children to live in the country to which the deportee is to be deported and whether it would be unduly harsh for the partner/child or children to live in the UK without the deportee. This explains why he failed to consider the specific questions of whether it was unduly harsh for the claimant's children and his wife to remain in the UK without him, questions that he would have had to engage with if he had applied the correct version of para 399(a) and (b).

The only paragraphs in which the judge considered the possibility of the claimant's wife and children remaining in the UK without the claimant are [69]-[70]. However, it is clear that he did not contemplate at all the possibility of the family being separated. It is plain that he considered that separation was sufficient in itself to outweigh the state's interests. This was because he applied head note 3 of Ogundimu . He referred to this guidance in Ogundimu in terms at [69].

Finally, I noted that the judge failed to consider whether the claimant satisfied the requirement in para 399(b)(i), i.e. whether the relationship between the claimant and Ms P was formed at a time when the deportee was in the UK lawfully and their immigration status was not precarious. If the judge had applied the correct version of para 399(b), he would have had to engage with para 399(b)(i). If he had done so, he would have had to have found that the claimant could not satisfy para 399(b)(i) and therefore that he could not satisfy para 399(b) because t he requirements in para 399(b) are conjunctive and the relationship between the claimant and Ms P was plainly formed at a time when their immigration status was not only precarious but unlawful.

Such were the number and nature of difficulties with the judge's assessment of para 399, as explained above, that I am driven to the conclusion that he did apply the wrong version of para 399.

I am fortified in my view that the judge applied the wrong version of para 399 by reason of the fact that he referred to the guidance in head note 3 of Ogundimu not only at [69] of his decision but also, in summarising the submissions made on behalf of the claimant at [51] where he said:

It is plain that head note 3 of Ogundimu can only apply to the version of para 399(a) that was in force as at 27 July 2014. It cannot apply to the version of para 399(a) that was in force from 28 July 2014 because para 399(a)(b) was amended in a way as to make the guidance in head note 3 inapplicable. If the judge had applied the version of para 399(a) that came into force on 28 July 2014, as he should have done, he would have realised that head note 3 of Ogundimu could not apply.

I am therefore satisfied that the judge erred in law by applying the wrong version of para 399(a) and (b) of the IRs, as contended in ground 1.a).

I am further satisfied that this error is material even taken on its own. The judge’s application of the wrong version of para 399(a) and (b) is sufficient in itself for his decision on the claimant's appeal to be set aside in its entirety, whatever may be said about grounds 2 and 3. This is because of the clear and material differences between the requirements as set out in the versions of paras 399(a) and (b) that were in force as at 27 July 2014 and the versions that came into force on 28 July 2014.

Although ground 1.b) appears to suggest that the Secretary of State detracted from her earlier argument that the judge had applied an incorrect version of the IRs, I am satisfied that this is not the case. Properly examined, I am satisfied that ground 1.b was advanced in the alternative to ground 1.a). My treatment of ground 1.b) is subsumed within my treatment of ground 3.

Before turning to grounds 2 and 3, it is necessary to deal with the Upper Tribunal’s conflicting guidance on the interpretation of the phrase “ unduly harsh ” in the version of para 399(a) and (b) that came into force on 28 July 2014. This may be summarised as follows:

In reaching his decision, Judge Southern considered and dealt with (at [8]-[25]) the reasoning of the panel in MAB in reaching its conclusion.

Neither MAB nor KMO is binding upon me. Although of course I take account of the need for judicial comity, this is not necessarily determinative. In any event, given the clear conflict between the two decisions, it is not possible for me to follow both.

Mr Farhat mentioned MAB at the hearing in response to which I mentioned KMO . He did not address me on which of the two decisions I should follow and why. His skeleton argument refers to MAB . It is noticeable for its complete failure to mention KMO .

I take into account the fact that, whilst the decision in MAB was reached by a panel, the decision in KMO was made by a single Upper Tribunal Judge. Nevertheless, I am entirely persuaded by the reasoning at [8]-[25] of KMO . I prefer to follow KMO .

I will now deal with ground 3 before turning to ground 2.

At [69] of his decision, the judge said that, in reaching his conclusion that “ the damage to the family life of the two girls with [the claimant] and [the claimant] with the two girls satisfies [him] that the [claimant’s] right to family life outweighs the public interest in seeing him deported ”, he had borne in mind “ as per Ogundimu v SSHD that little weight should be attached to paragraph 399(a) if there exists a clear conflict with the consideration of the best interests of the two children ”. Given that head note 3 of Ogundimu did not apply to the version of para 399(a) that the judge should have applied, I am satisfied that he took into account an irrelevant consideration in reaching his conclusion that the public interest was outweighed. It also shows that he effectively discounted the public interest.

Pursuant to KMO, the judge was obliged to take into account the weight that should be given to the public interest in deportation in reaching his findings on para 399(a) and (b). The judge's failure to apply the correct version of para 399 (a) and (b) may be part of the reason why he failed to attach any, or sufficient, weight to the public interest in deportation.

However, the fact is that the judge failed to recognise that the scales were very heavily weighted in favour of deportation. I agree with Mr Avery that he approached the appeal from a neutral starting point.

I am also satisfied that the judge failed to consider the different facets of the public interest, namely, the deterrence of others, the expression of society's revulsion at such offences and the need to maintain public confidence in the system.

I agree that the judge also erred in failing to take into account all of the factors summarised at my [26.iii)d)] and which I do not need to repeat here. Even after the decision that was the subject of the appeal before the judge, the claimant committed another offence when, again, he gave false identity details. This should have led the judge to increase the weight to be attached to the public interest. Instead, he impermissibly minimised its significance, by referring to this subsequent offence as “ one blemish ” on his record for the period following his committal for trial in May 2006, saying that “[ he] was not free of criticism” . Instead of this increasing the weight to be attached to the public interest, he minimised the public interest. He was wrong to say at [72] that the claimant was not cautioned for the offence in December 2013. As he said at [16] of his decision, the claimant was cautioned for this offence. He would not have had a caution administered to him if he had not accepted the offence.

The judge mentioned the public interest in the final sentence of [70] and at [71] and [72]. In the final sentence of [70], it is clear, as I have said above, that the judge simply considered that the mere fact of separation was sufficient in itself to outweigh the public interest. That is clearly an incorrect approach. The mere fact that deportation of an individual will effectively lead to permanent separation does not automatically mean that the deportation will be disproportionate, as the judge appeared to assume.

I agree with Mr Avery that, at [71], the judge was selective in what he quoted from the sentencing remarks. He chose to focus on comments by the sentencing judge which minimised the seriousness of the offence without also taking into account what the sentencing judge had said about the seriousness of the offences themselves.

In relation to [72] of the judge's decision, the grounds state (see [26.f] above) that there is no evidence that the Secretary of State was aware of the claimant until 2010 when checks were made following his request to be considered under the legacy programme. I am satisfied that the judge erred when he took into account, against the public interest in deportation, a delay of 5 years 9 months. The period of 5 years 9 months is the period from the date of the sentence (8 September 2006) until 13 June 2012, the date on which the claimant was informed of his liability to deport. However, it is clear from the sentencing remarks of the sentencing judge that the claimant was charged of the offences for which he was sentenced on that occasion in his false identity. This fact supports the Secretary of State's contention that she was not aware of the claimant until checks were made following his application made on 17 August 2009 for leave under the legacy programme. Given that the claimant's immigration history showed that he was an individual who had used a false identity on more than one occasion, the judge ought to have given reasons why he considered that, notwithstanding the use by the claimant of such false identities and notwithstanding the fact that he was charged in his false identity in relation to the offences for which he was sentenced on 8 September 2006, the Secretary of State could nevertheless be reasonably expected to have become aware of the claimant and commenced deportation proceedings as early as September 2006. In the absence of such an explanation, he was not entitled to take this period of 5 year 9 months into account against the public interest. In doing so, he erred by assuming that the Secretary of State was aware of the claimant to enable her to commence deportation action as early as September 2006.

Indeed, when [70]-[72] are read as a whole, it is plain not only that the judge paid lip service to the public interest but he mentioned it not as a means to explain the weight that he considered should be attached to the public interest but as a means to minimise the public interest and tip the scales in the claimant's favour.

Mr Farhat drew my attention to the fact that the first decision to make a deportation order of 18 August 2012 was withdrawn due to deficiencies in the refusal letter. This is irrelevant. The period the judge took into account was from the date of the sentence being imposed on 8 September 2006 to the date that deportation proceedings were commenced on 13 June 2012. Given that deportation proceedings had commenced, he rightly did not take into account the period between the making of the first decision to deport and the decision that was the subject of the appeal before him.

For all of these reasons, I am satisfied that ground 3 is also established. I am satisfied that this is also, in itself a material error of law.

I turn to ground 2.

I am satisfied that the judge failed to give adequate reasons for finding that the claimant satisfied the requirements in paragraph 399(a) and (b), in that, for the reasons given above:

Ground 2 is therefore also established. Again, this error is also material, even taken on its own. Indeed, the judge’s failure to consider whether it would be unduly harsh for the claimant’s wife and children to remain in the UK without the claimant was itself material, even leaving aside the other failings at [69] above.

Finally, I should say that Mr Farhat submitted, in reliance upon head note 3 of Ogundimu , that, if a course of action is not in a child's best interests, then it would be unduly harsh to follow that course of action. In other words, if deportation of the parent of a child is not in the child’s best interests, then the impact of the deportation on the child would be unduly harsh. Although he did not accept that this meant that the child’s best interests were to be regarded as a trump card, the reality is that his submission, if accepted, would mean exactly that. I have no hesitation in rejecting his submission. Depending on the seriousness of the offences in question and the circumstances of the case, deportation can be proportionate even if it effectively results in the permanent separation of a child from one of its parents.

I have found that, with the exception of the argument described at [26.i)c)] above, all three grounds are established. Except for this argument, the judge materially erred in law as contended in each of the grounds. Each error justifies my setting aside the judge's decision. I set aside his decision in its entirety. None of his findings stand.

Mr Farhat drew my attention to the fact that the claimant's convictions of July 2006 have been spent. My attention was not drawn to any evidence to show that those convictions have been spent. In any event, even if the convictions are spent, it is plain that the judge did not rely upon that fact and, furthermore, I cannot see how that fact is capable of rendering the errors of law I have identified immaterial on any legitimate view.

Given that the claimant succeeded in the appeal before the FFT and that there are children involved in this appeal and having regard to para 7 of the Practice Statements and the Court of Appeal’s judgment in JD (Congo) & Others [2012] EWCA Civ 327, I am of the view that in this case Practice Statement 7.2(b) applies. I therefore remit this case to the FtT with the direction that it be heard by another judge of the FtT.