21st April 2021
Second appeal. National of Zimbabwe. Appeal on human rights grounds. Deportation order and refusal of ILR based on ten years of continuous lawful residence under paragraph 276B.
Applicant arrived in 2002 to join his parents and there followed a series of drugs and driving offences both whilst a minor and as an adult culminating in a ten year sentence for aggravated burglary for which he was in prison from 2013 to 2018. He had DLR to 2016 and has a partner and British son who has been in the UK for more than 7 years.
The First Tier Tribunal (FTT) dismissed the appeal. Although the applicant was rehabilitated the offence was very serious. Little weight was to be given to the private life considerations which did not add to the family life considerations and the requirement in s.117B(6) NIAA 2002 was not met. The applicant may have been able to show very compelling circumstances had his sentence not been so long.
The Upper Tribunal found that the FTT had erred in law in finding that the applicant was not a settled migrant for the purposes of the Maslov guidance and that the exception to the little weight provision only applied to settled migrants little weight provision and failed to direct itself to the role played by the flexible provisions in S.117A(2)(a) when attributing weight to the private life provisions in s.117B(5) and (6) in the manner anticipated by Rhuppiah. At a separate hearing it dismissed the appeal. Rhuppiah required that particularly strong features were required to establish rights based on private life and there must be very compelling circumstances over and above the exceptions. Whilst the exceptions 1 and 2 were met the there were not very compelling circumstances over and above them.