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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005077
	First-tier Tribunal Nos: HU/59324/2023 LH/01304/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 25 ^th of February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

 

Between

 

HK

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr R Ahmed, instructed by Primus Solicitors

For the Respondent: Mr P Lawson, Senior Home Office Presenting Officer

 

 

Heard at Field House via cvp on 12 February 2025

 

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the Appellant] ( and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant ( and/or other person). Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

1.               The Appellant is a national of Albania born on 8 July 1984. In August 2010 he entered the UK illegally. On 2 September 2011 he was arrested for utilising an Italian identity card to which he was not entitled and he was sentenced to twelve months' imprisonment on 28 November 2011. He was subsequently deported to Albania on 6 March 2012. The Appellant re-entered the UK in violation of the deportation order on 3 January 2013. He was arrested due to being in the UK in violation of the deportation order on 9 September 2014 and deported to Albania on 26 September 2014. On 22 June 2015 the Appellant married his partner in Albania. He then on 24 December 2016 attempted to enter the UK via the Republic of Ireland. On 13 January 2017 his former representatives sought to revoke the deportation order. Whilst that application was outstanding the Appellant re-entered the UK illegally on 11 February 2017. On 17 May 2017 the application for revocation of the deportation order was refused.

2.               In January 2018 the Appellant again entered the United Kingdom. On 25 May 2018 he began a relationship with a new partner who gave birth to twins on 29 August 2019. On 18 December 2019 the Appellant's decree nisi in relation to his marriage was issued by the Bury St Edmunds Family Court. The Appellant left the UK in December 2019. On 10 October 2020 his former representatives made a further application to revoke the deportation order. On 27 July 2021 the Appellant married his partner in Albania. He made an application for leave as the spouse of an EU national (his partner being a Greek national) but that application was refused on 17 February 2022 and a second application was refused on 26 October 2022. On 16 March 2023 the Appellant applied for entry clearance as the partner of a person settled in the UK. His wife gave birth to a third daughter on 21 May 2023. The Appellant's application for entry clearance was refused on 13 July 2023. His wife was granted indefinite leave to remain on 9 April 2024, and on 29 July 2024 his appeal came before First-tier Tribunal Judge Mather for hearing in Manchester who proceeded to dismiss the appeal in a decision and reasons dated 11 August 2024.

3.               Permission to appeal was sought against this decision in time on 4 September 2024 on the basis of five grounds of appeal. Firstly that the judge erred in finding that the Appellant and his Sponsor were not reliable witnesses. Secondly that the judge erred in failing to consider the best interests of the children of the family. Thirdly in her assessment of the arguments relating to the Withdrawal Agreement. Fourthly in failing to evaluate the relevance of the outstanding application to revoke the deportation order, and fifthly in making material errors of fact and law in relation to the Appellant's criminal history.

4.               Permission to appeal was granted on 1 November 2024 purportedly on limited grounds confined to grounds 2, 3 and 4 only. Following the decision in Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC) I indicated to the parties that I was seeking submissions on all grounds of appeal.

5.               At the hearing before the Upper Tribunal Mr Lawson submitted that he intended to concede in relation to ground 3 i.e. whether account had been taken of the Withdrawal Agreement and he accepted that the judge does not appear to have engaged with paragraph 12 of the skeleton argument submitted on the Appellant's behalf by his Counsel, Mr Karnik

6.               Mr Lawson did not however concede in relation to any of the other grounds of appeal. In relation to ground 2 he drew the Upper Tribunal's attention to [60] of the decision and reasons, where the judge had made express reference to best interests and he submitted that that was sufficient and that the best interests of the children could be served by living in Albania with their parents. He submitted that the judge had taken on board the relevant case law, in particular ZH (Tanzania) [2011] UKSC 4 and had provided sound reasoning and a sound consideration of the children's best interests and that there was no error on that point. In relation to ground 4 Mr Lawson submitted that, in relation to the issue of the outstanding decision on revocation of the deportation order, there had now been a decision on 22 January 2025. That application had been refused with no right of appeal because the Appellant remained outside the UK and thus it was considered that human rights were not engaged, therefore any avenue of redress would have to be by way of a judicial review. Mr Lawson further indicated that he also opposed ground 1 and ground 5.

7.               In his submissions in response, Mr Ahmed submitted that in relation to ground 2 there are three children in the UK who are settled in this country. There was a report from an independent social worker which had been relied upon and which was cited by the judge at [16] and also letters from the children's school setting out the detrimental impact on them. He submitted that the children could not be blamed for the parents' conduct and that was what the judge had done, and he also sought to rely on the indication by the Judge in granting permission to appeal that the judge had made no specific findings on best interests and the findings were insufficient taking into account the significant evidence which supported the contention that the children were being damaged by their father's absence. Mr Ahmed submitted that ground 2 amounted to a material error of law as well.

8.               In relation to ground 4 Mr Ahmed indicated that they were not aware that there had been a decision on the application to revoke the deportation order and it needed to be taken into account that there had been delay and this was relevant to any consideration of Article 8 proportionality. Whatever his previous immigration history the Appellant has followed the proper path in seeking to have the deportation order revoked. He submitted in relation to ground 1 that the matters held against the Appellant and his partner were never properly put to him either in cross-examination or re-examination and thus were procedurally unfair, and in relation to ground 5 that the mindset of the judge was infected and that this ground also showed an arguable error of law. He submitted that the matter should be set aside and sent back to the First-tier Tribunal for re-making.

9.               Mr Lawson on his part submitted that on the basis of his concession regarding ground 3 the decision could be re-made in the Upper Tribunal.

10.           I reserved my decision which I now give with my reasons.

Decision and reasons

11.           With regard to ground 1, I find no material error of law in the approach of the judge to the credibility and reliability of the Appellant and the Sponsor. The judge gave reasons for her findings at [50] which was that their evidence as to when they met was inconsistent, the Appellant having stated he came to the UK illegally in January 2018 to join family whereas the Sponsor stated in her witness statement that they met in Albania in April 2018 and she then came to the UK to work. Whilst it is correct that the Appellant was not cross-examined as he was unable to give evidence from Albania and the matter was not put in cross-examination to the Sponsor, it was open to the judge to find that there was an inconsistency in the evidence and that adversely impacted on the Sponsor's and/or Appellant's credibility.

12.           The judge gave further reasons for finding that the Appellant and Sponsor were not reliable witnesses. At [51] the judge found that the Sponsor had been untruthful as to her ability to meet the financial requirement given that she was on maternity leave but still maintained that she was working and this was repeated in the skeleton argument, erroneously. The judge further noted the Appellant's "truly shocking" immigration history at [58]. These findings were clearly open to the judge to make on the basis of the information before her. Consequently I find no error of law in this respect.

13.           The substance of Ground 2 is that the judge at [56] put the Appellant's conduct ahead of the best interests of his children contrary to the approach in KO (Nigeria) [2019] UKSC 53 at [18] per Lord Carnwath. However, I do not find that the judge made this error in that at no point did she blame the Appellant's children for the conduct of their father. She simply made the point that the parents had decided that the Sponsor and children would live in the United Kingdom whilst the Appellant remained in Albania and that was their choice.

14.           At [59] the judge noted the consequential difficulties that have ensued as a consequence of the fact that the Sponsor is living in the UK as a single mother of three young children whilst the Appellant is in Albania and that these are described in Ms Deacon's report. At [60] the judge held:

"I note all that is said in the report from Ms Deacon independent social worker. I find it is simply the Appellant/Sponsor's choice for the Sponsor and the children to live in the UK and for the family not to remain in Albania ...It is clear the children have extended family on both sides of the family in Albania. It is open to the Sponsor to find work in Albania. She speaks Albanian and used the services of a Greek interpreter in the hearing. She has close links with the area where the Appellant lives with his mother. Her mother is married to the Appellant's cousin. It has been stated the children will not want to return to the UK without the Appellant. This is a matter for their parents. I have reminded myself of the cases of Boultif v Switzerland [2002] 33 EHRR 50 and ZH Tanzania [2011] UKSC 4. I have taken into account the best interests of the children as a relevant factor."

15.           Whilst it is clear from Ms Deacon's report that the children are being adversely impacted by separation from their father I do not find that the judge has failed to take this evidence in to consideration. Ultimately the best interests of the children are to be with their father, as well as their mother, but as the judge found this does not have to be in the United Kingdom. In any event the children's best interests have to be weighed in the proportionality exercise against the interests of immigration control, which it was open to the judge to find prevailed in light of the fact that the Appellant remains under a deportation order. The judge's finding that the Sponsor could obtain work in Albania was reasonably open to her given that the Sponsor speaks Albanian, is familiar with the area where her husband lives and has extended family in Albania. I find no material error of law in respect of the judge's assessment of the children's best interests.

16.           With regard to Ground 4, this argued that the judge failed to evaluate the relevance of the Respondent's failure to consider or reach a decision on the Appellant's outstanding application for revocation of the deportation order, which was unlawful. I find no error of law in this respect. Given no decision had yet been reached by the Respondent in respect of the application to revoke the deportation order, it was simply not open to the judge to determine this issue. Whilst there may be no burden upon the Appellant to chase a decision it was open to his representatives to do so, to send a pre-action protocol letter in respect of the delay or to seek to adjourn the current proceedings pending a decision on the revocation application and then apply for the two sets of proceedings to be linked.

17.           Ground 5 argued that the Appellant has been convicted on a single occasion and sentenced to 12 months imprisonment and that at [4] the judge incorrectly states that entering the UK in violation of a deportation order is a criminal offence, which she compounds at [56] by finding the Appellant has committed numerous further offences, however s24 Immigration Act 1971 is not a strict liability offence and no evidence has been heard and no separate findings have been made in respect of it.

18.           Whilst that may be so, it is not factually disputed that the Appellant has re-entered the UK on 3.1.13 in violation of the deportation order and the judge was correct to find that it amounts to a criminal offence, albeit does not appear that there have been charges and criminal proceedings. The Appellant was deported for a second time at public expense on 26 September 2014 and on 24 December 2016 he was denied leave to enter the UK as he was still subject to the deportation order. He entered the UK in breach of the deportation order and was detained on 11 February 2017 and was deported for the third time at public expense on 17 March 2017. The Appellant claimed to have entered the UK in January 2018 and made a voluntary departure in December 2019 and through his representatives he said he arrived subsequently and departed in December 2020.

19.           At [56[ the judge held:

"In this case I find the appalling immigration history of this Appellant very much counts against the revocation of the Deportation Order. He has deliberately and cynically over a considerable period of time continued to flout the immigration laws of this country, committing numerous further offences, albeit he has not been charged with them."

20.           In light of the Appellant's immigration history, set out by the judge at [6]-[10] of the decision and reasons, I find that it was open to the judge to make the findings she did at [56] and there is no material error of law in this respect.

21.           Ground 3 of the grounds of appeal, which was conceded by Mr Lawson, does not materially assist the Appellant. It is asserted that the judge misunderstood the nature of settled status and failed to give any or proper weight to the consequences of the loss of those rights, pertaining to the Sponsor under the Withdrawal Agreement. It was submitted that the Withdrawal Agreement created new obligations including the imposition of duties upon states to give proper effect to those rights and that the respondent and Tribunal are obliged to ensure those rights are upheld and in asserting that the issue was one of choice at [60[ the judge erroneously abdicated that duty.

22.           I do not find that the judge's approach amounted to a material error of law. The judge expressly stated at [61] that she had taken into account as a relevant factor the points made by Mr Karnik with relation to the Withdrawal Agreement in paragraphs 12 and 24 of his skeleton argument. These provide as follows:

" 12. The Appellant's wife is recognised as a beneficiary of the protection afforded by the Withdrawal Agreement. The scheme of new residence rights created by the WA is materially different to both the permissive system operated under the IA 1971 and to the rights that existed under EU law. The WA places new obligations under the SSHD. In Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307 at [82] Green LJ confirmed that for those who fall within the scope of the WA they continue to benefit from the protection of the Charter of Fundamental Rights, see also Vasa v SSHD [2024] EWCA Civ 777...

The new legal order flowing from the WA created enduring direct and personal residence rights. These rights are stronger than either rights under EU law or LTR under the IA 1971, the rules for which the UK Parliament can remake. The nearest equivalent that existed before the WA is the right of abode. The expectation that family life can be conducted outside of the UK would entail the loss of these rights, that loss for the Appellant's partner is an additional and weighty factor in the balance."

23.           Notably, the rights in question pertain to the Sponsor (and the children although reliance does not appear to have been placed on that point) and not the Appellant, who also has the right to reside in Greece as she is a Greek passport holder.

24.           In the event I am wrong and the judge did err in failing to give sufficient consideration to the loss by the Sponsor of her rights under the Withdrawal Agreement, I do not find that this was a material error in light of the judge's findings as to the Appellant's immigration history and the fact that, in any event, it would not have been possible for the Appellant to succeed in this appeal. This is because the Deportation Order remains extant and as the refusal decision of 13 July 2023 makes clear, he is unable to meet the suitability requirements of the Immigration Rules: S-EC 1.3 as a consequence. I note that the Appellant was also refused entry clearance on the grounds of conduct and character at S-EC 1.5 and due to failing to declare other names/identities: S-EC 2.2(b) of Appendix FM of the Immigration Rules.

25.           For the reasons set out above, I find no material errors of law in the decision and reasons of the First tier Tribunal Judge.

Notice of Decision

26.           The decision of the First tier Tribunal Judge is upheld.

 

Rebecca Chapman

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

19 February 2025