Case No: C5/2011/2656 
Neutral Citation Number: [2012] EWCA Civ 1113
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[Appeal No: IA/07393/2011]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 11th July 2012

Before:

LORD JUSTICE DAVIS

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Between:

	AA (Nigeria) 	
Appellant	
	- and -		
	
Secretary of State 
for the Home Department 	

Respondent	

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Mr Tim Buley (instructed by Messrs Elder Rahimi) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.
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Judgment

Lord Justice Davis:

1.	This is a second-stage appeal.  I bear in mind the principles articulated in recent cases, not least the case of JD (Congo) v SSHD [2012] EWCA Civ 327.  Mr Buley, on behalf of the applicant, submits that the observations there made apply here.  He submits that there is a strongly arguable case on behalf of the applicant, that there will be serious consequences if permission to appeal is not granted and the orders below stand and, further, he points out that the applicant succeeded at the First-tier Tribunal stage in circumstances where the credibility of the witnesses was accepted.

2.	Mr Buley has set out the background facts.  Understandably he stresses that this is not a case of automatic deportation under the 2007 Act.  The relevant most recent sentence was for a term of eight months.  The criminal offending itself was nasty, serious and escalating and carried on in the face of warnings.  However, Mr Buley stresses that the applicant was a teenager at the time; the last offence was committed in 2007; and compared to other cases this was, as he submits, relatively low level offending.

3.	Mr Buley also of course emphasises the background that the applicant came to this country in 2003 at the age of 15.  He undoubtedly has a family life established in this country.  He lives with his mother and a sibling and of course he has the young daughter by his partner, although he does not live with his partner and is separated from his partner but retains contact with his daughter.  Mr Buley has drawn attention to the principles set out in the case of OH (Serbia) [2008] EWCA Civ 694, which still has a force in this field albeit with some necessary adaptations in the light of the 2007 Act.  He further draws attention, in particular, to the decisions of the Court of Appeal in the case of KD (Ivory Coast) [2009] EWCA Civ 934, which Mr Buley goes so far as to assert is on all fours with this present case, although in truth it has its own facts, and the case of Gurung v SSHD [2012] EWCA Civ 62.  KD and Gurung are relevant to the extent that they lay down principles but are on their own particular circumstances.

4.	Mr Buley complains on behalf of the applicant that the First-Tier Tribunal was not obliged to focus in any detail at all on the public interest factor and simply because the Secretary of State had herself not focussed on that public interest factor, so Mr Buley asserts.  This is where Mr Buley seeks to draw some comparison with the KD case.  For the purposes of his argument Mr Buley emphasises that this is not an automatic deportation case where factors of public interest are already, as it were, factored into the decision.  This being below that level, he submits it is for the Secretary of State to make a case on public interest and, having not done so or not clearly done so at the first level, it was unsurprising and indeed unnecessary for the First-tier Tribunal to engage with that particular aspect of the matter.

5.	I do not agree with that.  I do think that the public interest cried out to be dealt with in the context of this case in the consideration of the First-tier Tribunal.  The very fact that deportation (this is a deportation case not a removal case) was going to be on conducive grounds necessitated such a consideration.  In those circumstances I do think there was an error in the approach of the First-tier Tribunal entitling the Upper Tribunal to grant leave to appeal and to reconsider the matter.  Accordingly that ground of appeal fails.

6.	The second ground is that the determination of the Upper Tribunal did not properly assess the relevant considerations by reference to Article 8, and particular complaint is made with regard to what is said to be inadequate reasoning and findings with regard to the applicant's relationship to his daughter, Shade, and the effect on Shade if he is to be deported from this country to Nigeria.  It is said that the Upper Tribunal failed to give proper consideration to the requirements of section 55 or the authorities such as ZH (Tanzania) [2011] UKSC 4, [2011] AC 166.  Of course the timing here makes ZH particularly in point.

7.	I have considered the way in which that tribunal judge dealt with those matters.  It does seem to me that there are elements of this case whereby regrettably, the existence of the daughter in this country is being used as a "trump card"; but be that as it may I do think proper consideration to these matters was given by the Upper Tribunal and the Upper Tribunal reached a conclusion which it was entitled to reach.  Whether that was the only conclusion it could reach, which the Upper Tribunal seems to suggest, may be debated but it was a proper conclusion on the facts.  

8.	Reverting to this being a second-stage appeal and bearing in mind the JD (Congo) considerations, I do not think this is a case which justifies the grant of permission to appeal at the second stage and therefore I refuse this application.

Order: Application refused