Category Archives: Deportation

Unduly harsh test is met: FTT Judge allows appeal of a potential deportee he describes as a “ persistent, prolific offender, an unreformed offender”

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The First Tier Tribunal Judge had two options in this appeal– to allow the Appellant’s appeal despite his criminal record and high likelihood of further offending or his family (and essentially his children) having to remain in the UK without their father.

A history of offending spanning over nearly 20years:

ZY entered the UK in 2002 from Zimbabwe on a visit visa valid for 6months. He remained in the UK without leave to remain however over the yeas sought unsuccessfully to advance an application for asylum including several human rights claims.

As regards ZY’s lengthy history  of offending, in summary, the following applies:

Between 2003 and 2011, ZY amassed several convictions for almost each year(bar 2005 and 2006).The convictions related to mostly driving offences but including convictions for assault and fraud.

Excluding the years 2015, 2016 and 2018, between 2012 and 2019, ZY continued to accrue criminal convictions.

Whilst an application to revoke the deportation order submitted in 2019 was pending to be decided and then with the period between 2020 and 2022 relating to the waiting period during which his appeal against the refusal of the human right application was pending to be heard, he had been in and out of prison twice.

At the time of his human rights appeal hearing in January 2022, ZY was on bail for an offence of driving while disqualified alleged to have been committed  in 2021. He was next due to appear at a Magistrates’ Court in March 2022.

Despite there being no conviction related to the alleged offence of 2021, at the time his appeal was heard in 2022, I encouraged ZY to prepare a supplementary statement so as to clarify the position to the Tribunal. Had he not done so, the Home Office Presenting Officer would almost certainly have brought up the issues on the day of the hearing.

Qualifying children:

ZY lives in the UK with his three British children  were born between 2007 and 2016 in the UK. He lives with the mother of his children, a Zimbabwean national who holds refugee status on a permanent basis.

A summary of the basis of the refusal decision:

The core parts of the refusal decision of 2020 included the following:

  • It was accepted ZY had a genuine and subsisting parental relationship with his children
  • The children’s best interests were however outweighed by the desirability of deporting foreign criminals. The children’s mother could provide suitable care for the children in ZY’s absence
  • It would not be ‘unduly harsh’ for his children if ZY was deported
  • The children would continue to have the advantage of the education, health and support services provided in the UK
  • ZY had extended family in the UK, who can help support the children
  • None of the children are financially reliant on ZY
  • Contact with the children would be maintained by modern means of communication
  • ZY did not meet the requirements for the exception to deportation on the basis of family life with his children
  • In relation to whether there were very compelling circumstances, there was a significant public interest in ZY’s deportation, given his criminal history and a deportation order was signed in 2011.

What was argued on behalf of ZY:

Submissions were as follows before the Tribunal Judge:

  • It was recognised the high degree of public interest in ZY’s deportation.
  • It was acknowledged that little reliance could be placed on ZY’s evidence.
  • It was only the effect that his deportation might have on others that could be weighed in the balance. In a case with two bad outcomes, the balance might just be in ZY’s favour.
  • Pointed out were the difficulties that ZY’s partner had in managing the children during ZY’s absence.
  • However imperfect he might be, ZY was part of the structure that kept the family together.
  • That was the background, against which the Independent Social Worker’s report must be viewed. That report had identified the negative impact of his incarceration on the family. Although the appellant may not merit any sympathy, his children do.
  • It was acknowledged that the risk of the appellant reoffending was high, but prayed in aid was the effect ZY’s deportation would have on his children as the only realistic ground he could have for avoiding deportation.

The Judge ‘s views in relation to ZY’s offending:

The Judge made the following stinging observations regarding ZY’s offending:

  • It was important to analyse ZY’s behaviour to identify the strength of the public interest in his deportation. It was apparent from the recitation of his criminal history, that he falls within the definition of ‘foreign criminal’ (section 117D(2) of the 2002 Act) because he is not a British citizen; has been convicted in the UK of an offence; and has been sentenced to a term of imprisonment of at least 12 months. That he is a ‘persistent offender’ is also plain.
  • ZY’s offending history largely speaks for itself, but in assessing the level of public interest in the appellant’s deportation, ZY was not just a persistent offender, he was prolific.
  • Not only did his offending continue, it escalated to serious sophisticated frauds.
  • Despite continuing to offend, ZY made the current application to revoke the deportation order in 2019.
  • The appellant’s attitude to offending and public safety is apparent from the criminal record. He is a prolific offender. He has serious offences involving sophisticated frauds, committed over many years; he has countless offences of driving while disqualified and with excess alcohol; he has an offence of assault. He has been sentenced to terms of imprisonment, immediate and suspended, community sentences, and an alcohol rehabilitation course. Nothing within the criminal justice setting has stopped him offending and re-offending.
  • It might be expected that involvement in immigration proceedings would encourage ZY to cease offending, knowing how continuing to offend was likely to be viewed by the Secretary of State and the Tribunals. It has not.
  • He has for many years been involved in immigration appeals while simultaneously profusely offending.
  • Factors that would very often end offending behaviour, such as an enduring relationship and family commitments have left the rate of offending unabated.
  • He has committed serious, sophisticated offences of fraud. He has not addressed those at all.
  • He totally disregards road traffic legislation, committing serious offences with the potential for great harm.
  • The 2020 OASYS report puts the risk of re-offending as high, and the risk of serious harm as medium. The report was accurate in its assessment of the likelihood of further offending, in that he again drove while disqualified in 2020.
  • Nothing about ZY’s circumstances or evidence suggested that he will not re-offend.
  • His criminal history, serious and persistent offending and high likelihood of further offending, made the public interest in his removal high.

Consideration of the Independent Social Worker’s Report:

An independent social worker’s report was obtained in 2020 following the refusal of the claim based on application to revoke the deportation order of 2011. In light of the Covid-19 pandemic, the appeal went unheard for nearly 2years. In January 2022, just before his appeal was heard, a second independent social worker report was commissioned, updating on the current circumstances in relation to the children.

The Judge noted the following:

  • There were significant events in the family’s life during the course of the proceedings, however the Judge had his starting point a Report of 2020 by an independent social worker.
  • The children were achieving milestones, enjoying school and performing well academically. The Report described a household in which all relationships were strong, appropriate and loving. Because at that time his Partner was working night shifts, ZY took the major caring role for their children during the day, including attending school events.
  • The Report confirmed that if ZY were permanently removed, his Partner would have to take on the caring role for the children and could not work. The Report also described the negative impacts reported on the children when ZY was absent for relatively short periods of time when serving a prison sentence. The Report identified that the children have no contact or familiarity with life in Zimbabwe, and it would not be practical for them to relocate there. The Report concluded that the best interests of the children were to remain together with both parents in the UK, and that ‘these children’s wellbeing will be negatively affected by their father’s long-term absence’.
  • The Judge noted that the Independent Social Worker is not required to address the issue whether it would be ‘unduly harsh’ for the family were ZY to be deported in light of his criminal record.
  • The Independent Social Worker was noted to have completed an updated independent report in January 2022. She again determined that the children’s best interests were to remain with both parents in the UK. The report was not required to address whether deportation is ‘unduly harsh’.

Why ZY’s appeal was allowed:

In allowing ZY’s appeal the Judge considered and found as follows:

  • Whether the decision to deport ZY would have unduly harsh consequences in terms of exception 2 depended in large part on the likely effect of removal. In making his findings on that aspect of the case, the noted that ZY was an unreliable witness: he presented himself in what he believed to be the best light at any point.
  • No reliance at all was placed on his evidence of reform or intention to give up a criminal lifestyle.
  • In assessing the effect of ZY’s removal on his children, the Judge took account of the most recent report by the Independent Social Worker Report( aspects of her report were quoted at length).
  • The Judge noted that he had identified the high degree of public interest in ZY’s deportation. He is a persistent, prolific offender; an unreformed offender; an offender who has been sentenced to between one and four years imprisonment.
  • That public interest in ZY’s deportation can be outweighed if he could show, on the balance of probabilities, that his removal would have unduly harsh consequences for his partner and/or children with whom he has a genuine and subsisting relationship: section 1175C of the 2002 Act.
  • Were he to be deported, that would effectively end the relationship with his children.
  • The Judge considered the effect of ZY’s deportation on his partner’s ability to care for the children, and for that reason alone took account of the effect of his deportation on her.
  • The issue was whether it would be ‘unduly harsh’ on the appellant’s children to remain in the United Kingdom if he were to be deported. The Judge took account of the best interests of the children, as required by section 55 of the Borders, Citizenship and Immigration Act 2009. All the children were British nationals, and that carried weight.
  • The refusal decision acknowledged that the children would not return to Zimbabwe with the appellant, so that were he to be deported his ties with his children would be, at best, by electronic means and occasional visits.
  • The Independent Social Worker identified that it is in the best interests of the children for ZY to remain in the United Kingdom. That was undoubtedly true, and the refusal decision acknowledged that, but that is a common feature of deportation of foreign criminals with children. However, from the report and other evidence, the Judge noted that he had to consider whether it would be ‘unduly harsh’ on them.

In setting out further considerations leading him to allowing the appeal:

  • The Judge noted that all the reports to which he access, including reports that were prepared because there had been concerns about ZY and his Partner’s ability to parent the children appropriately, had concluded that they are competent, loving parents, providing a safe home environment for the children.
  • ZY’s partner had by and large been the breadwinner, and worked at night, ZY had taken on most of the domestic responsibilities for the care of his children, a role that he has undertaken successfully, despite his criminal proclivities.
  • Were ZY to be deported, neither his Partner nor the children would accompany him. They would be left in the UK in the care of their mother. While the Judge found that there was significant practical and financial support from within the UK for the family, that would not be the same as the constant support of their father.
  • There was no doubt that the children would find ZY’s deportation very difficult. They were close to him. They would miss him. They may not understand what has happened.
  • It was apparent that ZY’s partner had more recently had difficulties in caring for the children. While the effect of ZY’s deportation would not be unduly harsh on his partner personally, her ability to care for the children, and the likely effect on their wellbeing, was an important feature.
  • As set out in the Independent Social Worker’s report, if ZY were not be present and should his partner feel under greater strain, it was not inconceivable that this addition pressure may present a greater risk of her physical chastisement of the children.
  • As imperfect a role model as he is, ZY was a vital part of the children’s lives, and his deportation would cause them (who are not responsible for his criminality) undue hardship.
  • The Judge did not accept that ZY was ‘reformed’. He found it likely he will reoffend, and there will be consequences of such offending on his liberty, relationship with his family, and ability to avoid deportation. However, the Judge found that currently his deportation would cause ‘undue hardship’ for his children, and therefore that he had satisfied the statutory exception 1 to deportation.

Secretary of State’s application for permission to appeal to the Upper Tribunal fails:

ZY’ appeal was allowed nearly four months after his appeal was heard.

A decision allowing the appeal was notified in April 2022.

In April 2022, the Secretary of State applied to the First Tier Tribunal for permission to appeal to the Upper Tribunal.

In the first week of June 2022, the First Tier Tribunal refused the application for permission to appeal.

Nearly four weeks later, the Secretary of State has not applied to the Upper Tribunal for permission to appal the April 2022 decision.

Current position:

ZY was convicted of a driving offence in March 2022 following his hearing in the Tribunal. His appeal in the Tribunal was allowed in April 2022 whilst he was serving a sentence related to driving offences.

Following a successful application for immigration bail after completion of his sentence,  he now awaits the grant of his leave to remain whilst he continues to support his partner with their children.

 

 

Charter flight to Zimbabwe: how a potential deportee obtained a stay of removal

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Alarmingly, enforced deportations to Zimbabwe by charter flight are fast becoming a regular occurrence.

The last such flights to Zimbabwe followed one after the other, in July and August 2021.

Another charter flight is expected to be enroute to Zimbabwe on 2nd March 2022.

2 March 2022 marks a day where:

  • several British children will be ripped apart from a parent
  • emotional bonds will be broken, some forever
  • wives and partners will abruptly find themselves raising young children as sole parents

individuals who have lived here for 20 or more years will be herded onto a plane and dumped at the airport in Harare, without jobs, no means to fend for themselves and facing possible destitution in an impoverished country that is plagued by severe economic challenges coupled with incessant political conflict.

Common questions usually asked at times such as these, include:

  • why is a person with British children and a partner being deported, surely he should be allowed to stay in the UK?
  • why deport a person who has lived in the UK for more than 20years years?

The answer lies in ascertaining provisions of the law that apply to persons who fall to be defined as “foreign criminals”.  Such persons fall for consideration under harsh Immigration Rules subject to a high threshold. This has the result that some human rights claims placing reliance on a family life with British children and partners, may at times fail before the Home Office, the Tribunal and higher courts. The consequence is that an affected person may be deported leaving young British children behind in the UK.

“Foreign criminals” and deportation

In relation to automatic deportation, Section 32(5) of the UK Borders Act 2007 provides that the Secretary of State must make a deportation order in respect of a foreign criminal (subject to the exceptions in section 33).

Section 32 defines a “foreign criminal” as a person:

  • who is not a British citizen or an Irish citizen
  • who is convicted in the United Kingdom of an offence, and
  • to whom Condition 1 or 2 applies.

Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

Condition 2 is that:

  • the offence is specified by order of the Secretary of State under relevant provisions and
  • the person is sentenced to a period of imprisonment.

Section 33 of the 2007 Act provides the exceptions to automatic deportation. Most commonly, reliance is placed on Exception 1 where a person argues his removal in pursuance of the deportation order would breach his:

  • ECHR Convention rights, or
  • the United Kingdom’s obligations under the Refugee Convention.

Where a person referred for deportation consideration does not meet the criteria for deportation under the 2007 Act, consideration is given to whether deportation should be pursued under the 1971 Act on the ground it is conducive to the public good.

Section 3(5) of the Immigration Act 1971 provides for the Secretary of State to make a deportation order on the basis their deportation is conducive to the public good. This gives the Secretary of State discretion to act in a way that reflects the public interest.

Part 5 of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts:

  • breaches a person’s right to respect for private and family life under Article 8, and
  • as a result, would be unlawful under section 6 of the Human Rights Act 1998.

For these purposes, foreign criminal is defined at Section 117D of the 2002 Act:

A “foreign criminal” means a person—

  • who is not a British citizen,
  • who has been convicted in the United Kingdom of an offence, and

who:

  • has been sentenced to a period of imprisonment of at least 12 months,
  • has been convicted of an offence that has caused serious harm, or
  • is a persistent offender

Section 117(C)of the Nationality, Immigration and Asylum Act 2002, states that the deportation of foreign criminals is in the public interest. The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

The exceptions to deportation and the very compelling circumstances test

Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, they may seek to resist deportation on the basis that they meet the family life exceptions to deportation, ie – place reliance upon a family life with a qualifying child and/or reliance on a qualifying partner.

Paragraph 398 of the Immigration Rules sets out the criminality thresholds. An Article 8 claim from a foreign criminal who has not been sentenced to at least 4 years’ imprisonment will succeed if the requirements of an exception to deportation are met. The exceptions to deportation on the basis of family life are set out at Paragraph 399 of the Immigration Rules, and the exception on the basis of private life is at Paragraph 399A.

Paragraphs 398 to 399A of the Immigration Rules set out when a foreign criminal’s private and/or family life will outweigh the public interest in deporting them.

Family life exception to deportation- family life with a qualifying child:

Paragraph 399 (a) of the Immigration Rules applies if:

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:

  • it would be unduly harsh for the child to live in the country to which the person is to be deported; and
  • it would be unduly harsh for the child to remain in the UK without the person who is to be deported

Section 117C(5) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, contains similar provisions however not in as much detail as the above Immigration Rule.

Family life exception to deportation – family life with a qualifying partner:

Paragraph 399(b) applies if the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

  • the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
  • it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
  • it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.

Section 117C(5) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, contains similar provisions however not in as much detail as the  above Immigration Rule.

Private life exception to deportation:

A person can resist deportation on the basis that Paragraph 399A of the Immigration Rules applies to their case.

Paragraph 399Aapplies if:

  • the person has been lawfully resident in the UK for most of his life; and
  • he is socially and culturally integrated in the UK; and
  • there would be very significant obstacles to his integration into the country to which it is proposed he is deported.

Section 117C(4) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, contains similar provisions.

Very compelling circumstances:

An Article 8 claim from a foreign criminal who has been sentenced to at least 4 years’ imprisonment will only succeed where there are very compelling circumstances over and above the circumstances described in the exceptions to deportation at paragraphs 399 and 399A.

Paragraph 398 provides that in such circumstances, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

Section 117C(6) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, contains similar provisions.

Why some claims submitted by “foreign criminals” fail:

At first glance, the above provisions seem fairly “easy” to satisfy however they have generated much caselaw in the Upper Tribunal and higher courts in seeking to interpret, for example, what is meant by:

  • unduly harsh
  • very significant obstacles to integration
  • very compelling circumstances

Where the Home office, the Tribunal or higher courts conclude on the facts of a case and by reference to the evidence provided that the threshold in the unduly harsh test or very compelling circumstances test is not met, a claim based on private and family life provisions may ultimately fail, leading to a person’s deportation.

A “standardised” Home Office refusal decision in relation to human rights claims raised by foreign criminals usually raises the following as a basis of refusal:

  • the applicant has not demonstrated that he has a genuine and subsisting relationship with his child.
  • the applicant has not met the requirements of the exception to deportation on the basis of family life with a child in accordance with paragraph 399(a).
  • the applicant is not in a genuine and subsisting relationship with his claimed Partner and it is concluded that he does not meet the requirements of the exception to deportation on the basis of family life with a partner.
  • even if the evidence is taken at its highest and it is assumed that the applicant has a genuine and subsisting relationship with his child, it is considered that he has not sufficiently demonstrated that it would be unduly harsh for his child to live in Zimbabwe with him and that it would be unduly harsh for his child to remain in the UK whilst he is returned to Zimbabwe.
  • It is acknowledged that the standard of living may be lower in Zimbabwe in comparison to the UK, however, the applicant’s assertion is speculative and does not mean it would be unduly harsh to expect his child to live with him in Zimbabwe.
  • The applicant is a Zimbabwean national and as such is accustomed to the lifestyle and culture in Zimbabwe.
  • The applicant will be able to support his child and ease his integration to life in Zimbabwe. It is noted that the child is 5 years old, and although he may be accustomed to life in the UK, it is considered that he is at an age where it would be easier for him to adapt to life in Zimbabwe, especially with the support of his parents.
  • Alternatively, the applicant’s child can remain in the UK with his mother whilst the applicant is returned to Zimbabwe.
  • It is asserted that the applicant’s child will be severely affected if he is separated from his father. It is reasonable to assume that the absence of the applicant would have some effect on the partner and their child, however, this is not sufficient to constitute as unduly harsh. There is no indication that the partner and their child are financially dependant on the applicant, nor is there any evidence to demonstrate that the applicant’s presence is required in the UK to support the partner and their son.
  • the difficulty that arises, especially where there is a shift to being a sole parent is acknowledged, however, as the partner is British/ has been granted Indefinite Leave to Remain in the UK she has access to the required additional support available to support single parents, especially single mothers. It is considered that the partner would be able to take care of and support their son whilst the applicant returns to Zimbabwe. The applicant would still be able to maintain contact with his son via modern means of communication and with support from his mother could organise for his son to visit him in Zimbabwe or elsewhere (outside of the UK).
  • In relation to the applicant’s established family life with his partner, it remains that the relationship between the applicant and his partner started when the applicant did not have any lawful leave to remain in the UK. As specified in paragraph 399(b)(i) a relationship will only qualify where it is formed ‘at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious’.
  • In relation to the applicant’s private life, it remains that the applicant has not been lawfully resident in the UK for most of his life or even 20 years.
  • In addition, it is considered that the applicant has demonstrated a resourceful attitude in the face of adversity in a new country he had no prior knowledge of, therefore he can use this gained knowledge and skills in a country he has spent his formative years in.
  • The applicant put forward evidence to show the socio-economic conditions in Zimbabwe, however, he did not provide any substantial evidence or information to demonstrate that he would be destitute upon his return to Zimbabwe as required in the case of MA (Prove Destitution). Whilst it is acknowledged that the applicant may find life challenging upon his return to Zimbabwe due to not having been there for some time and the standard of living not being on the same level as the UK, this does not establish that there would be very significant obstacles to the applicant’s integration in Zimbabwe
  • In order to outweigh the public interest in deporting the applicant, he would need to provide evidence of a very strong Article 8 claim over and above the circumstances described in the exceptions to deportation. He has provided no such evidence. Therefore, having considered the facts of the applicant’s case, it is not accepted that there are very compelling circumstances which outweigh the public interest in seeing him deported.
  • Therefore, for the reasons above it is not accepted that there is a real risk that the applicant’s removal from the United Kingdom would breach Article 8 of the ECHR.

2 March 2022 Removal Directions: Injunction granted by Upper Tribunal Judge against removal to Zimbabwe

The applicant was unexpectedly detained on 22 February 2022 at his family home during an enforcement visit.

Amongst other documents, he was served with a Factual Immigration Summary, removal directions for 2 March 2022 to Zimbabwe and a letter stating: “For the avoidance of doubt, if the Home Office concludes that removal should proceed in your case notwithstanding any further representations, and/or an application for judicial review, your removal from the United Kingdom will only be suspended on the Order or Directions of the Court”.

The applicant formally instructed me on 23 February 2022. On the same day, a request was made to Home Office FNO Leeds to provide the Tribunal decision of 2016 and other key documentation such as the deportation order- the applicant no longer had these documents on being detained.

The Home Office provided the documents on 24 February 2022 in the morning,

In the evening, 24 February 2022, the applicant with my assistance, submitted an application to revoke the deportation order that had been issued a few years ago.  Representations were  prepared and submitted along with supportive documentation including his partner’s statement.

Considered to be a persistent offender, the applicant had fallen subject to deportation proceedings in 2016. His appeal failed in 2016 before the Tribunal.

At the time of detention on 22 February 2022 the applicant however now had a British child with his long-term Zimbabwean partner who holds refugee protection settlement.

The representations of 24 February 2022 put the Secretary of State on notice that where an in- country right of appeal was not provided in the event of a refusal or where removal directions were not deferred/cancelled, an urgent application for judicial review would be commenced.

The 24th  February 2022 application was refused on Saturday, 26 February 2022 with no right of appeal. The format of the refusal decision followed that as set out above.  Removal was not deferred.  No right of appeal was provided.

On the same day,  Saturday, 26th February, Counsel was approached to consider the case and prepare grounds of claim. Having considered the provided papers, she promptly identified grounds of claim and advised accordingly.

The judicial review claim was filed in the Upper Tribunal by email just before 5pm on Monday, 28 February 2022.  An urgent application for a stay of the removal of 2 March 2022 was included, with a request to make a decision on the urgent application within a matter of hours.

In the morning of Monday, 1st March 2022, the Upper Tribunal issued the sealed claim form.  The applicant’s Bundle was served upon the Secretary of State along with the sealed claim form.

A few hours later at noon, 1st  March 2022, the application for a stay of removal was granted by an Upper Tribunal Judge with the applicant not to be removed to Zimbabwe pending the outcome of the application for judicial review or until further order.

The stay order was emailed to the Secretary of State requesting written confirmation that the removal directions of 2 March 2022 be cancelled.

At 2.38pm on 1st March 2022, the Home Office sent a letter confirming the removal directions set for 2 March 2022 had been cancelled.

Conclusion

Each case is different.

Cases involving deportation are complex.

Due to the imminent time factors that apply in cases such as these, it is important however to put forward a claim as effectively as possible and not allow valuable time to slip by in cases where it becomes evident that an application for judicial review, with an urgent stay of removal application will need to be made to the Upper Tribunal.

 

Instructed Counsel:

Shivani Jegarajah

Justitia Chambers

 

Zimbabwean mass UK deportations: Just one charter flight and an already desensitized Zim community a month later?

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It seems to have taken only one strategically placed deportation charter flight last month to desensitise the Zimbabwean community to the next one.

For the last two weeks or so, it has been said a second charter flight to Zimbabwe is to lift off on 25 August 2021.  Contrasted with the sudden flurry of online blog or media activity last month in the Zimbabwean community, with all sorts of views and comments being expressed here and there at various times of the day and night, there currently seems to be an alarming persistent deafening silence in the community in response to the next charter flight.

A few indefatigable organisations (such as ZHRO, ROHR and Zimvigil) and some other individuals seem however determined to plough on in their campaigns, raising awareness to the human rights situation in Zimbabwe.

BARACUK, on their Twitter handle did a fantastic campaign job last month in response to news of the charter flight, and has continued to do so, lending a voice to the plight of the Zimbabwean community and providing reliable updates. www.twitter.com/BARACUK?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor

General concern in the Zimbabwean UK based community over the mass deportations

On-line discussions in July 2021 revealed general concern for deportees and their family members, however some expressed views on legal issues(from those not legally qualified)  appeared merely speculative, misleading, a display of  ignorance of  the law, with others appearing to cause unnecessary alarm/panic and yet others expressing outright ridicule:

  • Why would it take someone 20years to resolve their immigration status? Havana kurongeka (they don’t have their affairs in order)
  • They deserve to be deported with nothing
  • The deportees will be sent to Rwanda from the UK
  • They are criminals, let them go
  • There is no place like home, they must return, their ancestors welcome them
  • Even those of you naturalised as British citizens and those holding indefinite leave to remain will be caught up sooner or later in deportations and so must tread carefully
  • Legislative bills going through Parliament currently have been drafted with these Zimbabwean deportees in mind – do you not see the coincidence with the charter flight?

Individuals and their relatives requiring legal advice and representation should ensure the persons they seek advice from are either appropriately registered or authorised according to the law. That way individuals affected can obtain effective legal advice and representation where possible.

Regularization of immigration status: it’s not as simple as it looks or sounds

From news reports since early 2018, it has been clear that thousands of undocumented Zimbabweans in the UK will be targeted for return to Zimbabwe- www.news24.com/news24/Africa/Zimbabwe/uk-to-deport-at-least-2-500-illegal-zimbabweans-report-20180216

Where resolution of immigration status seems much prolonged, increasingly frustrating, with no peace of mind but a mere hope of regularising status, yes, a person may, should they wish, consider the option of voluntary return.

For some however, matters generally are not as straight forward as may be thought.

It is sometimes the case that from a particular point in time lasting months or even years, a person may not fit squarely into the various categories of the Immigration Rules and policies and the Home Office may not be prepared to exercise discretion in favour of such a person.

For some individuals,  it may therefore not be that easy to regularise immigration status where something has gone wrong in the past.

Deportation cases generally- foreign national criminals:

A person may have held no permission to remain in the UK or been granted some form of limited leave or even indefinite leave but find themselves subject to deportation proceedings following a criminal offence(s), after several years or decades of residence in the UK.

Individuals who are subject to deportation proceedings, following convictions for criminal offences, may have settled/British minor children and partners in the UK, however the relevant applicable laws are particularly stringent and very difficult to satisfy- that is why it has been seen in the last month that a person who has resided here for twenty years, having minor British children and a wife in the UK, can be deported to Zimbabwe despite having a family life here.

In the majority of such cases, persons who were detained last month or are intended to be detained in future, would have been subject to deportation proceedings months or years prior, been issued with a deportation order automatically before an appeal is heard but ultimately receive a negative outcome in the Tribunal or higher courts.

Those who were subjected to enforcement raids on 13 July 2021 or detained on reporting, included a few such persons with previous failed challenges to deportation proceedings, but because they were “irremovable” due to an absence of a travel document, they remained in the UK years after a failed deportation appeal.

It should also be borne in mind that individuals with certain defined criminality issues or have deportation orders in place cannot place reliance on the 20year Rule (20years continuous residence in the UK, discounting any periods of imprisonment). Their applications will not succeed for failure to satisfy the Immigration Rules on Suitability criteria. The relevant Rules especially drafted for deportation cases instead set out separate criteria to be met by foreign criminals with private life/lengthy residence in the UK.

Deportation cases are particularly complex. On their face, the private and family life provisions of the Immigration Rules required to be satisfied in order to successfully resist deportation appear straight forward enough but are not easy to satisfy in practice.   There has been much litigation after 2012, when the applicable Rules were introduced, such that for a deportee seeking to resist deportation, careful regard must be had to the relevant caselaw which has sought to interpret the Rules. Relevant documentary evidence must also be carefully sourced and presented to improve prospects of success. Supportive statements also need to be provided even at the stage where a person is required to provided reasons to the Home Office as to why they should not be deported.

Deportation cases: application to revoke a deportation order

A person subject to a deportation order may apply to the Home Office to have the deportation order revoked.  Revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order

There are no Home Office application fees or applications forms required to be completed to accompany such an application.

Applications to revoke a deportation order must, where there are previous Home office decisions, Tribunal or higher court decision relevant to the individual, have regard to these past decision so as to ascertain what went wrong in the past and what needs now to be addressed.

Representations and supportive documents must be submitted in support of an application to revoke a deportation order. An applicant can place reliance upon private and family life provisions of the Immigration Rules or other very compelling circumstances to argue why they the deportation order should be revoked.

If an application to revoke a deportation order is refused, the refusal may generate an in-country right of appeal.

Where no right of appeal is provided, depending on the circumstances, a challenge via judicial review proceedings may be commenced.

Revocation of refugee status

The Home Office may revoke a person’s refugee status.

There are several triggers which could lead to such action but relevantly for those whose refugee status is revoked following a criminal conviction, this would arise having regard to applicable law.

Article 33(2) of the Refugee Convention provides for refugees to be returned to their country of origin, even though they may face persecution, where either:

  • there are reasonable grounds for considering they are a danger to the national security of the host state
  • they pose a danger to the community after having been convicted by a final judgement of a particularly serious crime

Article 33(2) of the Refugee Convention is reflected in Section 72 of the Nationality, Immigration and Asylum Act 2002 which provides that, for the purposes of Article 33(2), an individual is presumed to have committed a serious crime and be a danger to the community if they are sentenced to imprisonment of at least 2 years. Section 72(6) provides that a presumption under section 72 that a person constitutes a danger to the community is rebuttable by that person.

Where Article 33(2) applies, a refugee may be removed from the UK in spite of the fact they are a refugee according to the Refugee Convention. However, whilst an individual remains at risk of persecution or serious harm in their country of origin they cannot be removed there as this would be contrary to the UK’s obligations under Article 3 ECHR- ie subjection to inhumane and degrading treatment.

If refugee status is revoked and no other form of leave to remain is granted, a person may later on,  where such circumstances arise, be able to submit a fresh claim for asylum.

If in that fresh claim for asylum, the person is found to be at risk on return but it is still  considered they are a danger to the community, they may be granted limited leave to remain as their removal would be contrary to Article 3 of the ECHR.

Failed asylum seekers and fresh claims:

For failed asylum seekers liable to removal, fresh asylum claims may be submitted if the facts give rise to such a claim.

In addition to submitting Representations and evidence, fresh claims really should be accompanied by  a supportive statement from the applicant. This is because preparation of the statement lends support to the reasoning/basis behind the claim.

If a right of appeal is not provided where the claim is refused, judicial review proceedings intended to seek an in-country right of appeal might have a good lifting ground where an effective supportive statement was also submitted with the fresh claim.

Not only can fresh asylum claims be submitted by a failed asylum seeker, but also fresh human rights claims based on private and family life provisions.

There is no  Home Office application fee for submitting a first or fresh claim for asylum.

Unless an applicant chooses to do so for whatever reason, there is no requirement to complete an online application form and submit a Home Office application fee with a fresh human rights application. Both fresh asylum and fresh human rights claims can be submitted by a failed asylum seeker without providing any Home Office fee by following the in- person appointment UKVI Liverpool Further Submissions procedure.

New asylum claim:

It is also possible for a person who has been here for 20years but never claimed asylum in the  UK to raise a brand new claim  for asylum.

This was done last month on 19 July 2021 and a few hours in the afternoon removal directions to Zimbabwe were cancelled.

A very detailed asylum statement for the applicant was however provided along with Representations including supportive relevant background evidence in relation to the human rights abuses and suppression of dissent in Zimbabwe.

It is not enough to  simply state in writing that  a person wishes to claim asylum, is at risk on return and removal should be stopped. The Home Office may not cancel the removal directions on the basis of such vague representations.

The statement or letter requesting that the asylum claim be registered must be particularised in relation to the claim, also providing reasons and explanations as to why the individual has raised an asylum claim after so many years in the UK.

Persons with British minor children or settled Partners in the UK:

Persons without criminality issues arising nor a deportation order in place can have resort to a much wider array of categories of immigration law to seek to place reliance upon as a basis of application.

  • Children born in the UK may have resided here continuously for at least 7years whilst under the age of 18years. Along with their undocumented parents, they can place reliance on the 7year Rule as set out in the Immigration Rules as a basis of stay.
  • A person may be undocumented, but their child born here could have accrued 10years continuous residence in the UK whilst under the age of 18years.The child can apply for registration as a British citizen. Their parent(s) may then seek to regularise their status on the basis of their family life with their British citizen child.
  • A father or mother with contact/access but not residing with their British child or their child who has resided here for at 7years years, may seek to submit an application to the Home Office if they have a supportive signed statement from the parent living with the child confirming access with the child or if they are able to obtain a family court order giving them direct access to the child.
  • A person may be married to or have resided in the UK with their British or settled Partner for at least 2years. Subject to meeting the relevant requirements and providing supportive evidence, a leave to remain application can be submitted on the person’s behalf. Due to the nature of such applications, with the applicant being an overstayer, a detailed statement at least from the Sponsor should be prepared and provided clarifying the particular personal circumstances and addressing matters as required by the Rules.

Person with lengthy residence in the UK but without settled minor children and or partners:

An individual may be in the UK, with no British or settled partner nor minor children such that they are unable to raise family life issues by way of application.

Unless they meet the 20year Rule requirements or private life requirements for young adults who have spent at least half their lives in the UK whilst over the age of 18years but under 25, such applicants require particular care on advice and when applications are being prepared. This is because such applicants may not be caught by the requirements of the Immigration Rules.

Otherwise, applicants can place reliance on their private lives in the UK where the requirements of the Immigration Rules can be shown to be met.

The Immigration Rules on private life requirements provide for applicants who are aged 18 years or above and have lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK. The Rule looks simple enough to satisfy but the in-built “very significant obstacles to integration” test is difficult to satisfy. The test requires consideration of several issues relevant to the individual such as whether they have family in the country of return, any friends, why they state they would be unable to obtain employment in their country of origin or be destitute, whether they can have resort to the social assistance system in the country of return, why they cannot utilise any funds provided via the Voluntary Returns Scheme and why they would state they are unable to integrate into life in the country of return when on the facts they likely lived there the majority of their life before coming to the UK.

Quite a few undocumented Zimbabwean nationals who arrived here in 2001 or 2002 are due to regularise their immigration status relying on continuous residence of 20years in the UK. It is however not enough to place reliance merely on an entry date of 20years ago plus a visit visa entry stamp in an expired passport.

A person who has resided here for at least 20years can have their application for leave to remain refused for failure to provide documentary evidence showing their continuous residence for each of the 20years residence.  The application has to be prepared very carefully and there is an art to it in particular where a person has problems providing some documentary evidence.

Those due to accrue the requisite 20years in 2002 are understandably concerned with removal action being taken when they are just a few months short of meeting the required residence. Legal advice should be taken so that reliance can be placed on other provisions to cover the gap in the meantime.

Other provisions and other types of applications:

There are several other provisions of the law and other types of application such as Article 3 Medical condition cases and EUSS Zambrano applications, not referred to above which might enable a person to regularise their immigration status.

Seeking legal advice will assist in bringing out the relevant facts of the case and consequently the provisions of law or Guidance which should be relied upon.

It now seems fairly easy for the Home Office to obtain an Emergency Travel Document (ETD) from the Zimbabwe Embassy

It currently seems that the re-documentation interviews by Zimbabwean Embassy officials that had begun from 2018 are no longer a pre-requisite and travel documents are being issued even for those not interviewed.

For example, those detained on 13 July 2021 had requests for travel documents sent to the Zimbabwean Embassy some weeks or days prior to the home raids and travel documents were issued either prior to the raid or a day or so after detention but prior to 21 July 2021.

It now seems generally fairly easy and straightforward for the Home Office to obtain travel document for Zimbabwean returnees.

The ETD application package consists of a cover letter from the Home Office, a form and documentation an applicant would have provided to the Home Office during the course of applications previously submitted, such as Zimbabwean birth certificates, National ID cards, expired passports and any documents that connect a person to Zimbabwe.

What occurred during the gruesome months of the Covid-19 pandemic which enabled the UK government to detain with a view to deportation from July 2021, was the capitulation of the Zimbabwean government on a number of issues on the one hand and the provision of some incentives to that government on the other.

Ultimately and relevantly, all that the Zimbabwean government is required to do is issue ETD’s without any fuss and give the outward appearance of welcoming deportees.

Prepare for a tussle

Intended deportees, those that represent them as well as those campaigning actively, must be prepared for a tussle.

The sort of legal wrestling that was witnessed between 2005 and 2013 when prolonged litigation related to enforced return of Zimbabwean failed asylum seekers saw the Upper Tribunal, Court of Appeal and even the Supreme Court, occupied with the legal challenges focused on safety of return.

Following the start of the current deportations, there will be litigation in the Upper Tribunal and higher courts over the next months and years.

Meanwhile, the Home Office and the Zimbabwean government currently appear to have a head start – the 14deportees that were removed on 21 July 2021 were one too many.

Deportees with criminal convictions were deported on 21 July 2021. For this group of deportees, the next flight is understood to be only a few days away.

The next move after some weeks or months will be to deport those without any criminal convictions and perhaps even those undocumented but with 18 or 19years residence the UK.

The reticence in the Zimbabwean community regarding the next deportation flight from the UK may or may not be reflective of the general attitude to be adopted as each scheduled removal flight takes place every few weeks over the course of a year or some years.

The next returnee might be a father, brother, sister, finance, spouse, mother or an adult child of someone showing indifference to current circumstances.

 

 

 

Are you subject to deportation following criminal proceedings or do you wish to apply to revoke an existing deportation order?

Posted on by Standard Reply

A person can be subject to a decision to deport them from the UK following a criminal conviction or imprisonment in the UK.

Offending by an individual can result in serious harm with the consequent result that the Home Office may begin deportation proceedings against them.

A person may be considered a persistent offender, even without having been imprisoned,  such that they may receive notification that it is intended to deport them from the UK.

Challenging Home Office deportation decisions can be quite daunting and overwhelming.

This is because this area of immigration law is quite complex and can be difficult to navigate.

What you wish to achieve in order to resist deportation may involve and include:

  • making written representations and submitting evidence when the Home Office first express an “interest” in you following a criminal conviction or a period of imprisonment in the UK
  • relying on your UK settled or British child/Partner to resist deportation on the basis of your family life
  • remaining in the UK because of your significant residence here, having established a private life in the UK
  • arguing other compelling circumstances such that you should not be deported from the UK
  • obtaining protection in the UK because of fears of risk to your life or safety in your country of origin
  • gathering or sourcing of effective evidence, including expert evidence, to submit in support of your case
  • seeking to appeal a Home Office decision to deport you
  • applying for revocation of an existing deportation order whilst you are in the UK
  • applying to revoke an existing deportation order whilst you are outside the UK

If so, feel free to discuss your case on a no obligation consultation basis contacting:

  • Alice Muzira – AurexLegal Solicitors
  • Email – alice.muzira@aurexlegal.co.uk
  • 07940772506

Court of Appeal’s unrelenting and stinging criticism of the Upper Tribunal: foreign criminal HAD established very significant obstacles to reintegration

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“It seems to me that the UT judge strayed from his task and in doing so failed to take account of the fact that the FTT judge had had the benefit of hearing both the Appellant and his mother give evidence and had reached a broad evaluation decision. Instead of determining whether the FTT judge’s decision was irrational, the UT judge embarked upon making the decision himself, took account of matters which had not featured before the FTT and allowed himself to speculate about the Appellant”,  so concluded the Court of Appeal in  Lowe v The Secretary of State for the Home Department [2021] EWCA Civ 62 (25 January 2021), when considering the appeal of a Jamaican national who was born in 1999 and had come to the UK when he was 3years of age.

The Upper Tribunal irked the Court of Appeal by impermissibly setting aside a First Tier Tribunal Judge’s decision which found that the Appellant fell within the “private life exception to deportation”  set out in paragraph  399A of the Immigration Rules, such that he should not be deported to Jamaica.

What gave rise to deportation proceedings?

The Appellant, who had held indefinite leave to remain in the UK,  became subject to a deportation order because of a criminal conviction.  On 29 September 2017, he pleaded guilty to possession of a controlled drug of Class A (crack cocaine), with intent to supply, and to possession of a bladed article (a knife) in a public place. He was sentenced to a term of imprisonment of 2 years and 4 months for the drugs offence, with no separate penalty being imposed for possession of the knife.

What the Appellant had to show to resist deportation

The relevant provisions of the Immigration Rules and of primary legislation considered in the determination of claims by foreign criminals that their deportation would be contrary to Article 8 of the ECHR, are paragraphs 398 and 399A of the Immigration Rules and section 117C of the Nationality, Immigration and Asylum Act 2002.

In order to successfully resist deportation on the facts of his case by reference to the provisions, the Appellant had to show that:

  1. he had been lawfully resident in the UK for most of his life, and
  2. he was socially and culturally integrated in the UK, and
  3. there would be very significant obstacles to the foreign criminal’s integration into the country to which he is proposed to be deported

During the course of the appeal the Secretary of State accepted that (a) and (b)  was satisfied in the Appellant’s case but not (c).

As identified by the Court of Appeal {11}: “The battleground for that appeal was the Appellant’s contest to the points raised in the Respondent’s decision letter as to whether there were very significant obstacles to integration”.

The basis upon which the First Tier Tribunal Judge allowed the Appellant’s appeal

The First Tier Tribunal ( the FTT)  allowed the Appellant’s appeal from the decision of 1 August 2018 of the Secretary of State refusing his human rights claim, raised in resistance to a deportation order made against him on 30 October 2017.

It had been stated by the Secretary of State that the Appellant failed to satisfy the requirement that there should be “very significant obstacles” to integration because the Appellant’s father and extended family were still in Jamaica and available to support him.

The FTT found and concluded as follows in his decision, amongst other matters:

  • the Appellant had lived in the UK since the age of three.
  • the Appellant’s father resided in the UK and had done since in or around 1997/98.
  • the Appellant’s father left Jamaica approximately 20 years ago and had formed family units within the UK.
  • the Appellant’s mother had been absent from Jamaica for 16 years and left family and other connections she had within Jamaica due to abuse; accordingly, she was unlikely to have maintained contact; the Appellant’s mother and siblings had relocated to America.
  • on the evidence the FTT Judge found that the Appellant did not have family or other connections in Jamaica.
  • the Appellant met the Exception 1 (section 1117C(4) of the [Nationality, Immigration and Asylum] Act 2002 and reflected in Paragraph 399A of the Immigration Rules).
  • the Secretary of State was noted to have accepted that the Appellant had been lawfully resident within the UK the majority of his life and that he was socially and culturally integrated into the UK withstanding his offending.
  • It was accepted by the FTT Judge that the Appellant spoke English which is one of the official languages of Jamaica. Also accepted was that  the Appellant was a young healthy man of working age who is educated.
  • However, the FTT Judge concluded that Appellant had grown up in, been educated in and spent his whole adult life to date in the UK. It was that length of time in the UK; that lack of any family or support in Jamaica; the Appellant never having lived an independent life away from either of his parents or state institutions and a lack of financial support which would allow the Appellant to seek basic necessities such as accommodation which presented significant obstacles to his integration into Jamaica.
  • The FTT Judge accepted that there was a significant public interest in the deportation of foreign criminals, however, concluded that for the reasons he had given, Exception 1 to deportation was met and the public interest did not require the Appellant’s deportation. The Secretary of State’s decision to deport the Appellant was a disproportionate interference when weighed against his family and private life in the UK.

Why the Upper Tribunal set aside the First Tier Tribunal’s decision

On 10 April 2019, UT Judge Perkins in the  Upper Tribunal allowed the appeal of the Secretary of State against the FTT decision and sought to reason as follows:

  • The UT found that the “very significant obstacles” exception was only met in “strong circumstances” and that those circumstances were not “identified in the evidence” in the present case
  • The Appellant had not produced any evidence that showed he had made any real attempt to sort out how he might live in Jamaica. The UT had been told nothing about employment difficulties or opportunities or how the Appellant might or might not be able to obtain accommodation. The evidence was silent about these findings.
  • Given that the Appellant had sufficient wit (albeit of a thoroughly discreditable kind) to be part of a drug ring enterprise, the UT could not accept that he could be regarded a helpless babe.
  • Neither could the UT accept in the absence of clear evidence, that a person who had been locked up for whatever is necessary in a sentence of two years and four months, had not learned some street wisdom of a kind that would assist him.
  • The UT could see many things that would be difficult for him in Jamaica, or which could be expected to be difficult but could not see anything that  would describe properly as a “very significant obstacle”.

Court of Appeal’s conclusions that the First Tier Tribunal Judge’s decision was open to him

  • The FTT had decided the case on the basis of the case made by the Secretary of State, in the light of the evidence presented by the Appellant in support of his claim, in the decision letter and in argument. Having rejected that case, on the evidence, it was right for the FTT to allow the appeal.
  • What mattered was whether the FTT Judge was entitled to find, on the evidence thathe had seen and heard, and which the UT had not, and on the case made against him, that the Appellant, a young man with his characteristics and background, would face very significant obstacles to integration in Jamaica.
  • The Secretary of State had clearly been working under a significant and serious misapprehension, in the context of the case, in assuming that the Appellant had a father and extended family in Jamaica. The Secretary of State was wrong about that and the objection to the Appellant’s human rights claim on that basis had been rejected by the FTT.
  • As Kamara v Secretary of State for the Home Department [2016] 4 WLR 152 {14} shows, decisions of the present character made by the fact finding tribunal are “broad evaluative decisions”.
  • In Fage UK Ltd. v Chobani UK Ltd.[2014] EWCA Civ 5 at [114] – [115], Lewison LJ explained the caution to be exercised by appellate courts in interfering with evaluative decisions of first instance judges.
  • In this case, the FTT had determined the issues that were before it, being those which were regarded as being central to the question of whether the Appellant had demonstrated the relevant “very significant obstacles”. It was not necessary for the FTT to deal with a case that was not being made by the Secretary of State. As per Fage UK Ltd. v Chobani UK Ltd.[2014] EWCA Civ 5 the appeal to the FTT was “the first and last night of the show”, not a “dress rehearsal”.
  • The Court of Appeal in Lowe, observed that it is to be recalled that judgments at first instance are necessarily an incomplete impression made upon the judge by the primary evidence. The FTT judge reached the conclusion that he did on the issues raised and he expressed himself succinctly on them.
  • The Court of Appeal considered that it was quite open to the FTT judge to find that there were the necessary very significant obstacles based on the impression made upon him as to the effect of the “exile” of thisyoung man, with all his characteristics, attributes, qualities and defects that were disclosed by the evidence. Not every healthy young man, in a case such as this, would make the same impression. However, this was a 19 year old with a conviction, when he appeared before the FTT. He had lived for all but the first three years of his life in the UK and had no connection to Jamaica whatsoever other than a residual nationality. The  FTT Judge found that he had a specific dependency on his parents.
  • The Court of Appeal concluded that the  FTT Judge was entitled to form his own impression of the obstacles the Appellant would face on being dumped in Jamaica at the end of the prison term. He was not an adult foreign criminal, with a significant foundation of knowledge of the country of his birth from an earlier time in life, and who was being returned to a country with which he had some acquaintance. It was not surprising to that a judge (if not all judges) would find, as the FTT Judge did, that there were very significant obstacles to integration. Others might have made a different decision, but this was very much a case on its own facts to be assessed on the evidence.

Court of Appeal’s stinging criticism of the Upper Tribunal’s approach

In relation to the Upper Tribunal’s approach in setting aside the FTT Judge’s decision, the Court of Appeal concluded :

  • The UT was wrong to hold that the decision of the FTT was irrational.
  • The UT was wrong in substituting its own assessment of whether there were “very significant obstacles” to the Appellant’s integration into Jamaica after deportation for that of the FTT.
  • The UT correctly determined that this was a case of exile rather than deportation: in spite of the Appellant being a national of Jamaica, he had no past experience of any meaningful kind.
  • The UT re-assessed the case for itself and raised arguments against the Appellant which did not appear to have played any part at all in the Secretary of State’s original decision or in the Secretary of State ‘s case before the FTT.
  • It had not been suggested by the Secretary of State in the decision letter, or before the FTT, that the Appellant should have been making his own enquiries or adducing evidence before the FTT about accommodation and/or employment in Jamaica in order to satisfy the statutory burden upon him.
  • It was not for the UT to assess the Appellant’s “wit” in the light of his “part in a drug ring enterprise” or to speculate whether he could be regarded as a “helpless babe” that “had not learned some street wisdom of a kind that would assist him” from his period in custody.
  • The UT went outside its function in remaking the decision on the facts, on the basis of the written materials alone and without sufficient reference to the issues that were raised before the FTT and whether the FTT had been entitled to find as it did on those issues.
  • The UT impermissibly substituted own assessment of the case, without having heard the evidence and without the resultant important opportunity to assess the Appellant personally in the face of the statutory test.
  • The UT also raised issues against the Appellant that had formed no part of the case being made against him by the Secretary of State  either in the original decision, against which the appeal to the FTT was brought, or before the FTT itself.
  • The UT judge went on to make the decision afresh and to take into account matters which had not featured before the FTT at all.
  • The UT judge allowed himself to speculate about the Appellant and to bolster that impermissible speculation by reliance upon a perceived lack of evidence to the contrary. It was that impermissible speculation which led, in part, to his decision.

The Court of Appeal’s decision

The Court of Appeal allowed the Appellant’s appeal.

The decision of the Upper Tribunal dated 10 April 2019 was set aside and the decision of the First Tier Tribunal dated 17 December 2018 was restored.

Foreign national criminals with British children: Latest of a series of positive Court of Appeal decisions on the “unduly harsh” test

Posted on by Standard Reply

 

KB (Jamaica) v Secretary of State for the Home Department [2020] EWCA Civ 1385 (28 October 2020)  is just one of a recent series of positive Court of Appeal decisions published between 4 September 2020 and 28 October 2020, relevant to the application  of the “ unduly harsh test” applicable to the family life exception to deportation.

KB(Jamaica) follows on closely hot on the heels of HA (Iraq) v Secretary of State for the Home Department (Rev 1) [2020] EWCA Civ 1176  and AA (Nigeria) v Secretary of State [2020] EWCA Civ 1296 , which were both considered in the blog posts below:

The Court of Appeal has therefore in several key judgements in the last few weeks either:

  • allowed appeals outright or
  • allowed appeals to the extent of remittal to the Upper Tribunal for re-determination

on the basis that the Upper Tribunal was wrong to set aside a First Tier Tribunal Judge’s finding that deportation of a foreign national criminal with British children is unduly harsh.

 

Allowed appeals and remittal to the Upper Tribunal for re-determination – two Appellants in HA(Iraq)

  • The appeal in HA(Iraq) concerned an Iraqi national, HA, who became subject to deportation proceeding however lived together with his British Partner and three British children. HA ‘s appeal before the First Tir Tribunal was allowed by FTTJ Gurung-Thapa( she also allowed KB’s appeal in KB(Jamaica) referred to below). Upon the Secretary of State’s appeal, the Upper Tribunal set aside FTTJ Gurung-Thapa’s decision for error of law,remade the decision and dismissed HA’s appeal. The Court of Appeal, for the reasons provided, found unsustainable the Upper Tribunal’s exposition of the factors that it took into account in reaching its conclusion that the effect on HA’s children of his deportation would not be unduly harsh. The Court of Appeal allowed HA’s appeal and remitted his case to the Upper Tribunal for a reconsideration of whether, applying the statutory test, the effect of his deportation on his partner and children would be unduly harsh.
  • The other Appellant in HA(Iraq), RA, also an Iraqi potential deportee was married to a British citizen and had a daughter who was British. RA’s appeal was allowed by a First Tier Tribunal Judge. The Secretary of State appealed the decision. The Upper Tribunal set aside the First Tier Tribunal Judge’s decision, remade the decision and dismissed RA’s appeal.The Court of Appeal concluded that the Upper Tribunal’s conclusion was not sufficiently reasoned. Noted was the Upper Tribunal’s conclusion  that it would not be unduly harsh for a child of five to be removed to the IKR in circumstances where she would lose for the rest of her childhood at least the benefits of being a British citizen and where there were, on the evidence, real questions about RA’s ability to find decent accommodation and a job. Such a conclusion required, in the Court’s view, a full explanation which demonstrated that all the material considerations had indeed been fully taken into account. The Upper Tribunal’s conclusion on the “stay scenario” of the unduly harsh test was insufficiently reasoned. RA ‘s appeal was allowed by the Court of Appeal and the case remitted to the Upper Tribunal for reconsideration.

Allowed appeal and restoration of positive First Tier Tribunal Judge ‘s decision – AA(Nigeria)

Allowed appeal and restoration of positive First Tier Tribunal Judge ‘s decision – KB(Jamaica)

KB, a Jamaican national, had four British children with whom he had a genuine and subsisting relationship and played a significant role in their day-to-day life.  He had however separated from the mother of his children.

Upon the Secretary of State seeking to deport KB, he appealed the decision to the Tribunal.  First-tier Tribunal Judge Gurung-Thapa reached a decision that the effect of KB’s deportation on four of his children would be unduly harsh and allowed his decision. The Secretary of State appealed the decision. The Upper Tribunal held that the First Tier Tribunal Judge had made an error of law and overturned her decision. In a remade decision, an Upper Tribunal Judge reached a contrary conclusion to that of the First Tier Judge and dismissed  KB’s appeal. The Upper Tribunal Judge determined that the effect of KB’s deportation on his children would not be unduly harsh, and that there were no very compelling circumstances that outweighed the public interest in his deportation.

Relevant principles on the unduly harsh test reiterated:

The Court of Appeal in KB(Jamaica) reiterated the following as regards the relevant principles in relation to the unduly harsh test:

“15.The meaning of “unduly harsh” in the test provided for by s.117C(5) has been authoritatively established by two recent decisions: that of the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department [2018] 1 WLR 5273; and the decision of this court in HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 117. It is sufficient to note the following without the need to quote the relevant passages:

(1) The unduly harsh test is to be determined without reference to the criminality of the parent or the severity of the relevant offences: KO (Nigeria) para 23, reversing in this respect the Court of Appeal’s decision in that case, reported under the name MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617, in which at paragraph 26 Laws LJ expressed this court’s conclusion that the unduly harsh test required regard to be had to all the circumstances including the criminal’s immigration and criminal history.

(2) “Unduly” harsh requires a degree of harshness which goes beyond what would necessarily be involved for any child faced with deportation of a parent: KO (Nigeria) para 23.

(3) That is an elevated test, which carries a much stronger emphasis that mere undesirability or what is merely uncomfortable, inconvenient, or difficult; but the threshold is not as high as the very compelling circumstances test in s. 117C(6): KO (Nigeria) para 27; HA (Iraq) paras 51-52.

(4) The formulation in para 23 of KO (Nigeria) does not posit some objectively measurable standard of harshness which is acceptable, and it is potentially misleading and dangerous to seek to identify some “ordinary” level of harshness as an acceptable level by reference to what may be commonly encountered circumstances: there is no reason in principle why cases of undue hardship may not occur quite commonly; and how a child will be affected by a parent’s deportation will depend upon an almost infinitely variable range of circumstances; it is not possible to identify a base level of “ordinariness”: HA (Iraq) paras 44, 50-53, 56 and 157, AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at para 12.

(5) Beyond this guidance, further exposition of the phrase will rarely be helpful; and tribunals will not err in law if they carefully evaluate the effect of the parent’s deportation on the particular child and then decide whether the effect is not merely harsh but unduly harsh applying the above guidance: HA (Iraq) at paras 53 and 57. There is no substitute for the statutory wording (ibid at para 157)”.

The Secretary of State’s concessions:

The Court of Appeal’s conclusions:

Conclusion

A blog post of 4years ago enquired: Why is the home office increasingly and routinely appealing allowed FTT decisions and getting away with it? https://ukimmigrationjusticewatch.com/2016/06/26/why-is-the-home-office-increasingly-and-routinely-appealing-allowed-ftt-decisions-and-getting-away-with-it/

In other words, in particular in relation to deportation cases where an appeal is allowed by a First Tier Tribunal Judge, rather, the question should have been, why has the Upper Tribunal been entertaining  these routine challenges by the Secretary of State?  Not only that, why has the Upper Tribunal been interfering with First Tier Tribunal Judge’s decisions arising out of a mere disagreement on whether the appeal of a foreign national criminal national should have been allowed?