Tribunal decisions

The decision

IAC-HW-MP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01215/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 16th August 2016
On 9th November 2016

Before

upper tribunal judge DEANS

Between

THE Secretary of State FOR THE HOME DEPARTMENT
Appellant

and

FT
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer
For the Respondent: Mr E MacKay, McGlashan MacKay Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State against a decision of a panel of the First-tier Tribunal comprising Judge Boyd and Mr A E Armitage allowing an appeal by FT (hereinafter referred to as "the Claimant").
2. The Claimant was born on 14th October 1968 and is a national of the DRC. He has a wife and four children, with whom he resides in the UK. He arrived in the UK in 1992. In 1997 he was convicted on two counts of handling stolen goods and using a false instrument. He received a prison sentence of nine months and was recommended for deportation. He was served with a reasons for deportation letter on 9th February 2007 and an appeal against this was dismissed. On 14th November 2007 a deportation order was made against him. On 11th December 2014 a decision was made to refuse asylum, humanitarian protection and human rights claims made by him. It is against this refusal that the present appeal was brought.
Decision of the First-tier Tribunal
3. The First-tier Tribunal expressed some reservations about the credibility of the Claimant but appeared to have accepted that he had had some involvement with the High Council of Congolese Resistance (HCCR). In the view of the Tribunal, however, the authorities in the DRC were interested only in anti-government people with high profiles and the Claimant did not have a high profile. He would not face a real risk of persecution upon return to the DRC owing to his political opinion or imputed political opinion and he was not entitled to refugee or humanitarian protection.
4. The Tribunal then went on to consider the Claimant's private and family life in the UK. The Tribunal observed that over a nine year period from 1994 until 2004 the Claimant was regularly in trouble. His maximum sentence was twelve months, imposed in 1994, but there was then a nine months' sentence imposed in 1997. There was a further eight weeks' sentence in 2003. This was for driving with excess alcohol in his bloodstream. The Claimant received a two month sentence for the same offence in February 2004. There were no further convictions after this date.
5. The Claimant married in 2015 but he was already in a relationship with his wife. They have four children, born in 2007, 2009, 2010 and 2014. All the children were born in the UK and have lived here since their birth. The Claimant's wife has indefinite leave to remain, having been in the UK since 2001. She was born in Zimbabwe but has been in the UK since she was 15 years old. She was aged 30 at the time of the hearing before the First-tier Tribunal in April 2015.
6. The Tribunal observed that the Claimant's offences were largely historic. They were in the main offences of dishonesty and drink-driving. It was clear the Claimant had had an alcohol problem but there was no evidence that this had persisted.
7. The Claimant's relationship with his wife began in 2003, just before his last conviction. The two younger children are British citizens and the two older children, like their mother, have indefinite leave to remain. The recommendation for deportation by the court was made in 1997, some eighteen years previously.
8. The Tribunal was satisfied that the Claimant has a genuine and subsisting relationship with a qualified person and a genuine and subsisting parental relationship with qualifying children. The Tribunal considered whether deportation would have an unduly harsh effect on the partner or children. It was clear the children had a close relationship with the Claimant and it would not be in their best interests for him to be deported. Not least because the two youngest children were British citizens it would not be appropriate to expect them to leave with their mother to live in the DRC, which was a country entirely alien to them. Having regard to the public interest, as required by Section 117C of the 2002 Act, the Tribunal was satisfied on the basis of the evidence that the public interest was outweighed by the personal circumstances of the Claimant, including his family circumstances.
9. Having made this finding, the Tribunal then in the penultimate paragraph of its decision stated that there were good grounds for considering Article 8 outside the Immigration Rules and concluded that it would be disproportionate to remove the Claimant from the UK.
10. In its decision the Tribunal allowed the appeal on human rights grounds and stated in addition that the deportation order was revoked.
Application for permission to appeal
11. Permission to appeal was granted to the Secretary of State by the Upper Tribunal on a number of grounds. The first of these was that the Tribunal had made a material misdirection in law. It was contended that the Tribunal was wrong to find good grounds for considering Article 8 outside the Rules. As found in MF (Nigeria) [2013] EWCA 1192 the Immigration Rules are a complete code. The Tribunal had failed to identify very compelling circumstances over and above those described in paragraphs 399 and 399A. The Tribunal had failed to apply these Rules.
12. In terms of section 117C(5) the Tribunal was required to determine whether the effect of the Claimant's deportation on the children would be unduly harsh. In this respect it was contended that the Tribunal failed to consider whether it would be unduly harsh for the children to live in the country to which the Claimant was to be deported and whether it would be unduly harsh for the children to remain in the UK without the Claimant. The Tribunal had only attempted to answer the first of these questions and had failed to identify facts which could be described as inordinately or excessively harsh. Reliance was placed on KMO (Section 117 - unduly harsh) [2015] UKUT 543. The Tribunal had failed to make a finding as to whether it would be unduly harsh for the children to remain in the UK without the Claimant.
13. It was further contended that the Tribunal had failed to consider adequately the public interest in the deportation of foreign national offenders. The Tribunal had failed to consider the three powerful aspects of the public interest which needed to be addressed in each deportation case, as summarised in OH (Serbia) [2008] EWCA Civ 694. These were the risk of re-offending by the person concerned; the need to deter foreign criminals from committing serious crimes; and the role of deportation as an expression of society's revulsion of serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes. The Tribunal had erred by approaching the appeal from a neutral starting point instead of one heavily weighted in favour of deportation.
14. It was contended that the Tribunal had failed to apply sub-sections 117B(4) and (5) to the appeal, which required little weight to be given to a private life or a relationship with a qualifying partner established by a person at a time when a person was in the United Kingdom unlawfully. In addition little weight should be given to a private life established by a person at a time when the person's immigration status was precarious. The Claimant had never been granted any form of leave but the Tribunal had failed to take this into consideration.
15. Finally it was submitted that a mere finding that the Claimant looked after the children whilst his wife worked was inadequate reasoning for concluding that it would be unduly harsh for the children to remain in the UK without him.
16. In granting permission to appeal, the Upper Tribunal observed that the decision of the First-tier Tribunal might stand up to scrutiny or that a similar decision might be made if the existing decision was set aside but the Secretary of State's grounds were arguable. In particular it might be that the Tribunal had not given sufficient weight to the Claimant never having had permission to be in the UK. It might be that the Tribunal had not asked itself or had not explained why it would be unduly harsh to expect the Claimant's children to remain in the UK without him.
Submissions
17. At the hearing Mr Matthews addressed me on behalf of the Secretary of State. He submitted that the appeal was subject to Section 117C of the 2002 Act, which had come into force on 6th April 2015. The case for the Secretary of State was that the Tribunal had misdirected itself in law and had failed to give adequate reasons. The Tribunal erred by refusing the appeal under the Immigration Rules and under Part 5A of the 2002 Act and then considering Article 8 outside the Rules. Mr Matthews acknowledged that there might be a question as to whether this error was material. He nevertheless sought to rely on three decisions of the Court of Appeal in LW (Jamaica) [2016] EWCA Civ 369, AJ (Angola) [2014] EWCA Civ 1636 and MF (Nigeria) (cited above).
18. Mr Matthews observed that at paragraph 41 of the decision it appeared that the Tribunal might be finding that the Claimant succeeded under the Rules. There were, however, two parts to the test of undue harshness depending on whether the family would be accompanying the Claimant or not. The reasoning in paragraph 43 did not reflect this. Reference by the Tribunal to reasonableness was irrelevant. If the Tribunal had had Section 117B(6) in mind, this was not relevant to an appeal where the Claimant was to be deported. The Tribunal had showed a lack of appreciation of the law. Although at paragraphs 35 and 36 the Tribunal appeared to have referred to the relevant provisions they did not carry through the reasoning process in a proper manner.
19. Mr Matthews further submitted that the Tribunal had failed to take into account that a deportation order had already been signed. An appeal had been dismissed in 2007. Deportation action had been commenced in 1997. This had been suspended to consider an asylum claim but the Claimant had continued to offend. In the 2007 appeal the Tribunal had accepted that deportation was conducive to the public good.
20. Mr Matthews acknowledged that all the children had been born since 2007 but he submitted that family life was precarious. The Tribunal stated at paragraph 41 that the welfare of the children was "paramount" but this was an error of law. The welfare of the children was a primary but not a paramount consideration.
21. On the question of undue harshness, Mr Matthews sought to rely on the decision of the Court of Appeal in MM (Uganda) [2016] EWCA Civ 450. This required a balancing exercise. The more serious the offending the less the likelihood of showing undue harshness. Here the offending was largely historic and the longest sentence was of a year, the next was nine months. This put the case in the medium range. It was also necessary to take account of the Claimant's immigration history. The Tribunal did not have before it the decision in MM (Uganda) but had to show that they had applied the law as it was then in force, taking into account relevant factors and giving adequate reasons.
22. Mr Matthews further submitted that it was beyond the jurisdiction of the Tribunal to revoke the deportation order. The decision should be set aside and re-made.
23. For the Claimant, Mr MacKay submitted that this was a well-reasoned decision which took full account of the Claimant's history, including his offending. The Tribunal had taken full account of the public interest weighing in favour of deportation. After giving full weight to this factor the Tribunal concluded that it would be unduly harsh to remove the Claimant. This decision should stand.
24. Mr MacKay continued that the Claimant's offences were largely historic. His relationship with his wife commended in 2003, just before his last conviction. The Tribunal gave clear consideration to this history and found there was a less pressing need for deportation after the lapse of time since the last offence. The Claimant was in a relationship with his children and was an active father. The Tribunal had properly conducted a balancing exercise taking account of the public interest and the immigration history of the Claimant. At paragraph 41 the Tribunal had taken account both of the effect of the children accompanying the Claimant to the DRC and of them remaining in the UK without him.
25. On the question of what was unduly harsh, Mr MacKay referred to the decision in KMO. The Tribunal had followed the reasoning of this decision. The children had all been born in the UK. The Tribunal had taken into account all the relevant considerations, including the seriousness of the Claimant's offences. The Tribunal had taken into account the definition of "unduly harsh" at paragraph 41 and had taken account of the previous appeal at paragraphs 6 and 24. The Tribunal was entitled to have regard to the lack of any enforcement action against the Claimant over a lengthy period as well as the fact that he had not offended since 2003.
26. In reply, Mr Matthews submitted that at paragraph 41 the Tribunal had only asked part of the question of whether the Claimant's deportation would be unduly harsh for his children. This was the question of whether it would be unduly harsh to expect them to accompany him to DRC. The Tribunal had not considered whether it would be unduly harsh for them to be separated from him if they remained in the UK. The Tribunal did not follow a properly structured approach and erred by treating the best interests of the children as paramount.
27. Mr Matthews submitted further that the Tribunal had made a factual error by describing the Claimant's wife as working whereas in fact at the date of the hearing before the First-tier Tribunal she was on Employment Support Allowance and was at home. This might be a minor error but it did affect part of the Tribunal's reasoning.
Discussion
28. Some of the arguments for the Secretary of State may be addressed fairly briefly. First of all, the Tribunal had no jurisdiction to revoke the deportation order. This part of the decision is simply of no effect. It may, however, be severed from the decision as a whole and does not necessarily lead to a conclusion that the decision should be set aside.
29. The question of whether the Claimant's wife was working at the date of the hearing before the First-tier Tribunal was not raised in the application for permission to appeal and formed only the final part of Mr Matthew's closing submission, after the submission for the Claimant had been made. Mr Matthews submitted that this nevertheless affected the Tribunal's reasoning. I do not agree. The Secretary of State has emphasised the finding in paragraph 41 of the decision that the Claimant looked after the children while his wife was working. According to the Secretary of State this was an inadequate reason for finding that it would be unduly harsh to expect the children to remain in the UK without the Claimant.
30. I do not consider that the Tribunal ever expected this observation about the Claimant looking after the children while his wife was working to be regarded as a significant reason for finding in his favour. It was merely a passing observation to illustrate the existence of family life between the Claimant and his children. In this appeal it has not been disputed that the Claimant is the father of the children and that the children live with the Claimant and his wife as a family unit. This is the essential feature which establishes the existence of family life. The question of who in the household is working and who is looking after the children is of only secondary importance. The important point is that the children live with their father and mother and have a relationship with their father.
31. There is in effect a clear finding by the Tribunal that the children and the Claimant enjoy family life together. In addition, the Tribunal pointed out that the two younger children are British citizens and the two older children have indefinite leave to remain. It was suggested on behalf of the Secretary of State that the Tribunal did not demonstrate why it would not be appropriate or why it would be unduly harsh for the children to accompany their father to the DRC. In this specialised jurisdiction, having regard to the recent history of the DRC and the prevailing circumstances there, little needs to be said about why it would be unduly harsh to expect children who are British citizens, or who have lived a number of years in the UK and have indefinite leave to remain, to relocate to the DRC. The Tribunal rightly did not consider that this would be anything other than unduly harsh and it was not necessary for the Tribunal in this specialised jurisdiction to express more detailed reasoning on this point.
32. Mr Matthews submitted that the Tribunal had not addressed, or not properly addressed, the second question in relation to undue harshness, which was whether it would be unduly harsh for the children to be separated from the Claimant following his removal to DRC. It was acknowledged by Mr Matthews that there was a balancing exercise to be conducted here and the outcome of the balancing exercise would depend to an extent upon factors such as the Claimant's immigration history and the seriousness of the offences he had committed. Mr Matthews submitted that having been sentenced to imprisonment for a year, this showed that the Claimant fell into the mid-range of seriousness of offences. While this is so, the Tribunal pointed out in its decision that the sentence of twelve months was imposed as long ago as December 1994. A nine month sentence was imposed in 1997. There was then a further sentence of eight weeks in 2003 and a final sentence of two months in 2004. In the balancing exercise the Tribunal was entitled to take into account not only the seriousness of the offences but also when they were committed and the length of time which elapsed since the Claimant's last conviction.
33. So far as the Claimant's immigration history was concerned, The Tribunal observed that the Claimant entered the UK in 1992 and claimed asylum upon arrival. The Tribunal was aware that the Claimant had not had leave to remain.
34. It is contended for the Secretary of State that the Tribunal has not set out the factors taken into account in finding that the Claimant's removal would be unduly harsh, particularly were his children to be separated from him. Again, having regard to the specialised nature of this jurisdiction and the findings made by the Tribunal in relation to family life, one wonders exactly what the Tribunal should have spelt out but failed to do so. The obvious fact is that were the Claimant to be removed to DRC and the children to remain in the UK the children would no longer have their father living in the family unit with them. They would only be able to maintain contact with him through long distance communication, except for whatever possibility there might be of visiting the DRC at some point. What the Tribunal was finding at the date of the hearing in April 2015 was that if the Claimant were to be removed then the children, aged 8 (almost 9), 6 (almost 7), 4 and under 1, would be deprived of the close contact with their father as part of the family unit which they had enjoyed all their lives. I do not think it is incumbent upon the Tribunal to set out in any greater detail why it would be unduly harsh for the children to be separated from their father. I accept, of course, that if the Claimant's offences were more serious, more recent, or more persistent, then the balancing exercise might have resulted in a different outcome but the fact is that in this appeal the Claimant's offences and history were not such as to outweigh the effect on the children of being separated from him. This is the conclusion which the Tribunal reached and was entitled to reach, even if its reasoning was not spelt out in the degree of detail which the Secretary of State would regard as appropriate.
35. There is an issue as to whether the Tribunal erred by not acknowledging that the Immigration Rules in relation to foreign criminals are a complete code. On this point, it is difficult to argue that paragraph 43 of the decision, where the Tribunal looked at Article 8 outside the Rules, was anything other than erroneous. It was, however, also unnecessary. I am satisfied that at paragraph 42 the Tribunal found that the appeal would succeed under section 117C of the 2002 Act, which is a statutory provision applying Article 8 in respect of claims by foreign criminals. Again in the context of the specialised jurisdiction of the Tribunal, this provision did not need to be set out in detail. Under section 117C(5) there is an exception from deportation for a person in the position of the Claimant who has a genuine and subsisting relationship with a qualifying partner or a genuine and subsisting parental relationship with a qualifying child and the effect of the Claimant's deportation on the partner or child would be unduly harsh. In my view it was the finding of the Tribunal at paragraph 42 that the effect of the Claimant's deportation on the children would be unduly harsh and the appeal was allowed on this basis.
36. There are still one or two minor issues to be addressed. Mr Matthews submitted that the Tribunal erred at paragraph 41 by describing the best interests of the children as paramount rather than primary. Mr Matthews' submission on this issue is correct in law but has no material affect on the Tribunal's reasoning. Mr Matthews further submitted that it was wrong for the Tribunal to refer to the question of reasonableness in relation to the children being expected to leave the UK. This test was to be found in section 117B(6) of the 2002 Act, which has no application to a person who is liable to deportation. Again, Mr Matthews' point is correct in law but not material to the outcome of the appeal and its underlying reasoning.
37. I have accepted that the decision of the First-tier Tribunal contains a number of errors. These, however, are, for the reasons I have explained, not material to the principal findings made by the Tribunal and the underlying basis for them. The Tribunal found at paragraph 42 that the public interest in the Claimant's deportation was outweighed in this instance by the Claimant's genuine and subsisting relationships with his partner and children, which was the finding the Tribunal was entitled to make in the circumstances of this appeal. The errors made by the Tribunal are not material. In particular, the supposed consideration outside the Rules at paragraph 43 of the decision can simply be severed from the rest of the decision, as can the decision that the deportation order is revoked. The way in which the Tribunal should have expressed their decision was that it was allowed under section 117C(5) of the 2002 Act. This is the decision of the Tribunal, as set out at paragraph 42, and I do not consider it material that this was not repeated in the final summary as expressed by the Tribunal. The Tribunal was entitled to allow the appeal and did not materially err in so doing.

Conclusion
The making of the decision did not involve the making of an error on a point of law such that the decision should be set aside.
I do not set aside the decision.
Anonymity
The First-tier Tribunal made an anonymity order to protect the anonymity of the children. I have not been asked to vary this order and it remains in force. Unless and until a Tribunal or court orders otherwise, the Claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This order applies both to the Claimant and to the Secretary of State. Failure to comply with this order could lead to contempt of court proceedings.

Signed Date

Upper Tribunal Judge Deans