[2025] UKUT 00150 (IAC)

On November 2003 DAM was convicted at Bristol Crown Court for conspiracy to supply class A controlled drugs. On 19 November 2003 he was sentenced to 5 years and 6 months imprisonment and recommended for deportation. On 22 December 2005 he was deported from the UK. In 2007 he re-entered the UK in breach of the Deportation Order and on 31 March 2015 an application was made to revoke the deportation order. The respondent made a decision on 20 December 2017 to refuse to revoke the deportation order and to refuse the appellant’s human rights claim. The appellant’s appeal against that decision was allowed by the FtT but subsequently dismissed by the Upper Tribunal. On 16 October 2019 further representations were made to the respondent, including representations on international protection grounds. On 7 September 2020, the respondent made a decision to refuse the appellant’s protection and human rights claims and concluded there are no grounds to revoke the deportation order.

The appellant’s appeal was dismissed by the FtT for reasons set out in a decision promulgated on 2 June 2023. The judge found the appellant has been convicted of a particularly serious crime and that the appellant has failed to rebut the presumption that “by reason of his offending, he is currently a danger to the community”. For the same reasons the judge found the appellant is excluded from humanitarian protection. The judge considered the appellant’s international protection claim and concluded that the appellant has failed to establish he has a well founded fear of persecution or would be at risk upon return to Jamaica, or that his deportation would be in breach of Article 3. Finally the Judge addressed the appellant’s Article 8 claim based upon his relationship with his partner and children. The judge referred to an independent social work report relied upon by the appellant but gave limited weight to that report. The judge considered the impact of the appellant’s deportation upon his children and partner and concluded that the relevant factors, both individually and cumulatively, are not such as to outweigh the significant and enhanced public interest in the removal of the appellant. The judge concluded that on balance, this is not a case in which there are very compelling circumstances that outweigh the public interest in the appellant’s deportation.

The appellant applied for permission to appeal to the Upper Tribunal. The Grounds of Appeal are as follows:

“1.

The Appellant's appeal was heard before [the FtT] on 28th April 2023 at Newport. In a decision promulgated on 2nd June 2023 the Judge dismissed the Appellant's appeal.

2.

The Appellant seeks permission to appeal to the Upper Tribunal.

3.

The Respondent accepted that: there are many organised crime groups in Jamaica (§33 RFRL), originally entered on 7th October 2001 (§96 RFRL), genuine and subsisting relationship with sons (§99 RFRL), negative impact on mental health of youngest son (§102 RFRL), genuine and subsisting relationship with partner (§108 RFRL), and partner's wellbeing has decreased since last hearing (§111 RFRL).

4.

The Judge has erred in the following ways:

a.

Making a material misdirection of law/Making an irrational finding. At §20 the Judge accepts that the Appellant has not been arrested, charged or convicted of a crime since his conviction on 14 th March 2003. At §36 the Judge however finds that, notwithstanding the Appellant's lengthy period of non-offending, he has failed to rebut the presumption that he is a danger to the community. The Judge has erred and has failed to rationally set out why the Appellant poses a danger to the community given his lack of offending over a significant period of time. The Appellant's unlawful entry in 2007 does not rationally mean that he is still a danger to the community when he has been living with his family, came forward to the Respondent in 2015 and has no further convictions. The Judge's conclusions at §36 & §38 are irrational given the circumstances of the claim. The Judge's error in respect of the certification pursuant to §72 NIAA 2002 is material to the protection claim and the human rights claim.

b.

Failing to consider material evidence/Failing to consider material matters. In assessing whether the Appellant is a danger to the community the Judge has failed to consider material matters which were supported by evidence. The Judge states that the Appellant has failed to accept his involvement in the conspiracy (§36). However at §5 of the Appellant statement (dated 10 th June 2021) the Appellant stated:

I have accepted full responsibility for my actions. Going to the flat in Ransley House on that fatal day to hang around with people whom I had known for only a short period of time was a bad choice. I am very remorseful for what has happened. My deepest sympathy goes out to anyone who has fallen victim to class A drugs or any illegal substance. I am now fully aware of the devastating and negative impact Class A drugs have on peoples lives and the destruction it can cause communities. I am now a totally reformed person. I do not hang around with anyone who is involved in any type of illegal activities. I was 26 years of age when this happened...

Again in the Appellant's supplemental statement (dated 30th March 2023) he expresses similar remorse and responsibility at §§117-18. The Judge has not engaged with this material evidence in his assessment of whether the Appellant poses a danger to the community. Furthermore the medical evidence (pages 10- 21 & 108-120 AB) showed that the Appellant has suffered from anxiety and depressive disorder for a number (sic) years which has deteriorated. The medical evidence was material to the assessment of whether the Appellant has rebutted the presumption and the Judge has not factored it into his assessment. The Judge has erred.

c.

Making a material misdirection of law. The Judge finds that the Appellant's account, in relation to the protection claim, has been consistent throughout (§46). The Judge also accepts that the Appellant account is consistent with and supported by country evidence (§47). The Judge however finds that the Appellant's account is a fabrication designed to frustrate removal based on the delay in making the claim. In rejecting the Appellant's consistent account, which was supported by the country evidence, the Judge has failed to properly make an assessment of risk upon the lower standard (MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216 (28 February 2023)). The Judge has erred.

d.

Making a material misdirection of law/making an irrational assessment of the evidence. The Judge has erred in his assessment of the Independent Social Work reports. At §59 the Judge notes that there was no challenge to the expert Social Work report by the Respondent. The Judge has failed to consider that the 2019 report included (Appendix 2) a psychological assessment by Weronika Krakowaik. Furthermore at §59 the Judge states that at points the expert has speculated, playing the Appellant's case at its highest, straying into the role of an advocate. The Judge's assessment of the report is unreasonable and the points at which the Judge asserts that the expert is speculating is a mischaracterisation of the report. The Judge also states in relation to the expert's assessment of the youngest child that there was no assessment of whether the child was exaggerating or feigning symptoms and whether there were alternative causes of the self-harm scarring. The Judge has erred, there was no challenge to the expert and it was never asserted that either of the children have been exaggerating. The social work report was not a scarring assessment where alternative causes are in issue. The Judge's assessment is flawed.

e.

Making a contradictory finding/making an irrational assessment of the evidence. At §59 the Judge is critical of the Social Worker's assessment of the Appellant's youngest child's mental health and self-harm (see above) yet having considered the school and doctor's letters the Judge accepts at §67 that the Appellant youngest child suffers from anxiety and has self-harmed. The Judge further accepts that removal would exacerbate the Appellant's youngest child's anxiety. The Judge's acceptance at §67 undermines and contradicts his criticism of the Social Worker for not considering if the child was exaggerating or if there were alternative causes for the scratching/bruising. The Judges acceptance at§67 shows that his criticism and deprecation of the Social Worker is flawed.

f.

Failing to consider material matters. In considering the position of the Appellant's wife at §§77-80 the Judge has failed to engage with what the Social Worker said in respect of her. In the 2023 report the Social Worker considered the position of the Appellant's wife (§§10.1-10.5) and sets out how she is finding it difficult to cope, is only getting 3 hours sleep per night, puts on a mask to hide the despair at home and has engaged in compulsive behaviour (§10.5). The Judge has erred and failed to consider material matters in respect of the Appellant's wife.

g.

Failing to consider material matters/making a material misdirection of law. At §51 of HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 (20 July 2022) Lord Hamblen sets out a list of factors to be considered when assessing very compelling circumstances (this was set out in the skeleton). Lord Hamblen includes 'the time elapsed since the offence was committed and the applicant's conduct during that period' . The Judge fails to consider this as part of his balance of factors in favour of the Appellant at §89. Furthermore at §90 the Judge sets out "neutral' factors in the balance, however a number of the factors set out therein (b), (c) (d) and (e) are factors that should have weighed in the Appellant' favour and to treat them as neutral flaws the Judge's assessment.

5.

The above constitute errors on points of law and permission to appeal should be granted.

6.

The Judge's decision should be set aside and reconsidered by the Upper Tribunal or remitted to the First-tier Tribunal.”

Permission to appeal in respect of Grounds (a), (b), (e) and (f) was granted by a judge of the FtT on 25 August 2024. Permission to appeal was refused on grounds (c), (d) and (g). The judge addressed the merits of each of the grounds at some length and insofar as permission was refused the judge said:

“5.

Ground (c) : There is no arguable error in the assessment of risk in the protection claim. Whilst the Judge did find that the Appellant's account had been consistent throughout and that it was largely consistent with the objective background evidence as to gang violence in Jamaica, the Judge also considered a range of other factors in relation to credibility including the length of time it took for the Appellant to lodge his protection claim; the fact that he failed to do so even in 2015 when he put forward his Human Rights claim; his awareness and knowledge of the immigration system generally and that he is a sophisticated individual and the vague nature of his claim to reach a conclusion that it was a fabricated claim.

6.

Ground (d): There is no arguable error in the Judge's assessment of the ISW report. The grounds wrongly submit that the Judge noted that there was no challenge to the report by the Respondent. There was in fact no challenge to the expert status and qualifications of the ISW. The Judge was entitled reach his own conclusions in relation to the ISW report notwithstanding the expert status of the author of the report. The Judge has given adequate reasons for placing limited weight on the report which are not perverse or irrational.

…

9.

Ground (g): There is no arguable error made by the Judge in the balancing exercise under Article 8. Whilst he may not have considered the time elapsed since the offence was committed and the Appellant's conduct during that period at paragraph 89 , he clearly refers to that factor and takes it into account at paragraph 91. The grounds further submit that the Judge has considered a number of factors at paragraph 90 as neutral factors when they should have been given positive weight. The Judge has carefully and clearly described why factors, which on first sight might be positive factors, are neutral and has set out with clear reasons in relation to each particular factor why that is so. I find that this part of the grounds amounts to no more than a disagreement with the Judge's conclusions and is not arguable.”

It is conceded that the decision of the FtT judge who granted permission to appeal to limit the grounds upon which permission is granted complies with the guidance set out in Safi and others (permission to appeal decisions) [2018] UKUT 388. No application has been made to the Upper Tribunal to rely upon the grounds upon which permission was refused. In summary, Mr Pipe submits that was not necessary given the inevitable overlap within some of the grounds of appeal. The FtT judge has granted permission to appeal on grounds concerning the judge’s assessment of the Article 8 claim and if the grounds upon which permission has been granted are established, it would follow, Mr Pipe submits, that the judge’s overall assessment of proportionality would have to be revisited.

Notwithstanding the way in which the grounds of appeal are framed, there are in fact four errors on a point of law that the appellant points to:

Mr Pipe accepts that ground (c) is a discrete ground upon which permission to appeal has been refused and that will form no part of the consideration of the appeal by the Upper Tribunal. He acknowledges that even if the Upper Tribunal finds an error on a point of law on grounds (a) and (b), that will not assist the appellant because the FtT judge went on in any event to consider the international protection claim and following the refusal of permission on this ground, the FtT judge was entitled to reject it for the reasons given.

It is again unfortunate that the grounds of appeal were formulated as they were, rather than as four grounds of appeal, each directed to a particular conclusion, that are clearly delineated as they have been summarised above. If it is claimed, as here, that the judge erred in the assessment of the reports of the independent social worker, that is the ground of appeal. The claimed errors that support that proposition could properly be set out in sub-paragraphs.

Although there is no renewed application for permission to rely upon grounds (d) and (g) when the Upper Tribunal considers whether the decision of the FtT is vitiated by material errors of law as set out in the grounds upon which permission to appeal has been granted, the errors identified in paragraphs (e) and (f), will feed into the judge’s assessment of the reports of the independent social worker and the weight to be attached to the conclusions set out in the reports. Similarly, as Mr Pipe submits, any error that is established by grounds (e) and (f) will feed into the judge’s overall assessment of the Article 8 claim and the factors that weigh in favour of and against the appellant when considering whether there are very compelling circumstances over and above those described in Exceptions 1 and 2 of s117C of the 2002 Act.

To that extent only the criticisms made in grounds (d) and (g) of the grounds of appeal will in effect be subsumed within the grounds of appeal upon which permission is granted and be within the scope of the appeal before the Upper Tribunal. If the appellant wished to go further and rely upon grounds (d) and (g) as pleaded, it was open to the appellant to renew the application for permission to the Upper Tribunal. The appellant has not done so and there is no reason for the Upper Tribunal to allow the appellant to argue those grounds as pleaded when permission has been refused.