Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/09771/2014
AA/09772/2014
AA/09773/2014

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 28 July 2016
On 30 September 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

B N
Q M
N N
(ANONYMITY DIRECTION made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms Anderson, Manuel Bravo Project
For the Respondent: Mr Mills, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellants, BN, QM and NN are husband, his wife and minor child and are citizens of Zimbabwe. The first appellant has a son (P) who was born in September 2004 and holds British/Zimbabwean joint nationality.
2. The appellants appealed to the First-tier Tribunal (Judge Dearden) against the decision to deport them to Zimbabwe. Judge Dearden in a determination promulgated on 9 April 2015, dismissed the appeal. The appellants now appeal, with permission, to the Upper Tribunal. The appeal came before Judge Plimmer at Bradford on 30 September 2015. In a determination promulgated on 2 October 2015, she found that there was an error of law in Judge Dearden's decisions such that they fell to be set aside. Unfortunately, Judge Plimmer is unwell and a transfer order has been made (dated 15 February 2016) in respect of the resumed hearing.
3. The hearing proceeded by way of submissions only on 28 July 2016. There had been an unfortunate delay in this case when the Secretary of State had failed to comply with directions given by Judge Plimmer in October 2015. Ms Anderson, on the other hand who acts for the appellants did comply with the directions.
4. As Judge Plimmer observed in her error of law decision, it is necessary for the Tribunal to consider Section 117C of the Nationality, Immigration and Asylum Act 2002 (as amended) whilst the appeals engage paragraph 399 of HC 395 (as amended):
5. The first appellant was sentenced to a period of twelve months' imprisonment on 26 July 2007 at Bradford Crown Court on two counts of being in possession of a false or improperly obtained passport. It is that conviction (the first appellant's only conviction) which has led to the deportation decision.
6. The parties are agreed that the only issues which remain to be determined in this appeal are whether it will be unduly harsh for the child NN (who is 16 years old) to live in Zimbabwe and whether it will be unduly harsh for both NN and P (the latter being a British citizen who cannot be deported and is aged 10 years) be separated from each other and, in the case of P, to be separated from the other appellants by reason of the deportation. Before the Upper Tribunal, Section 117C(4) was not the subject of submissions whilst sub-Section (5) both representatives agreed was the focus of the only issue for determination by the Tribunal.
7. It is accepted by both parties that the principal appellant has a genuine and subsisting relationship with both children, NN and P. They all live together with the second appellant in a family unit. The Tribunal is required to consider the circumstances in the round and is not limited to considering only circumstances appertaining to the qualifying children. (See MM (Uganda) [2016] EWCA Civ 450).
8. Mr Mills told me that he agreed with Ms Anderson's submission that the first appellant did not represent any threat to the wider community. The false document offence for which he was convicted has not been repeated and nor has he had any trouble with the United Kingdom police or authorities since he has been released from prison.
9. There is evidence before the Tribunal that the first principal appellant's behaviour when in prison had been "exceptional". I note that the principal appellant has engaged in voluntary work. Ms Anderson submitted that he has become fully integrated into United Kingdom society. Child P will start at secondary school in September 2016. Child NN has been offered a place at a sixth form college starting in September 2016. There is a great deal of evidence adduced by the appellants from teachers and headmaster of the school attended by P which indicate both children are bright and work hard yet are very fearful of the disruption which would be caused to their education and lives generally if either they were to be separated or, in the case of NN, removed to Zimbabwe with her parents. NN has taken her GCSEs in the summer of 2016 and is currently awaiting the results.
10. I have the benefit of a report prepared by an independent social worker, Ms Christine Brown. This report considers in detail the likely effect which the enforcement of the deportation order on the three appellants will have upon both NN and P.
11. The documentary evidence (which has been skilfully compiled by Ms Anderson) presents a very thorough picture of the lives of the children P and NN. There is clearly an extremely strong bond between the siblings and between P and his parents. Mr Mills, in his submission, acknowledged that Christine Brown's report painted a picture of a "happy family" and I have seen no reason to depart from that description. The principal appellant's behaviour has been exemplary since he finished his prison sentence several years ago. He has been unable to work but has engaged in voluntary activities to the benefit of his community. He has done everything possible to encourage and enable his children NN and P to make the best of the education which has been offered to them in the United Kingdom. I note that NN in particular has become an extremely valuable member of her school community. I acknowledge that P would be able to enter Zimbabwe with the remainder of his family as he has joint Zimbabwean/British nationality. I acknowledge also, however, that if he were required to do so he would lose the advantages of his British nationality and (at least for the time being) his EU citizenship. I find that it would be unduly harsh to expect him in these circumstances to relocate to Zimbabwe. He is at a crucial stage of his education (about to enter into a secondary school) and the same is also true of the child NN who will be moving with her friends and peer group to study at a sixth form college for her A levels. The expert Christine Brown has described the dislocation and "grief" which will be caused to the family life of these children if they are either removed to Zimbabwe, separated from the family and social milieu (which provides them with security in the United Kingdom) to Zimbabwe or, indeed, if they were to be separated. It is my opinion that it would be unduly harsh for either of those scenarios to be put into effect.
12. In reaching my decision I have had regard to all relevant parts of Section 117 of the 2002 Act (as amended). I have had proper regard to the public interest which favours the removal of the principal appellant. Seeking to enter or remain in the United Kingdom with a false document is a serious offence which has an adverse effect, albeit indirectly, upon other members of the community. It is not, however, an offence of violence or of sexual nature. Moreover, I have no doubt at all that the principal appellant, if he is to be granted indefinite leave to remain, will seek and find work, in consequence not be a burden on the British taxpayer. I am satisfied on the present evidence that he has integrated in United Kingdom society. I am aware also that he has not had something other than a precarious status within the United Kingdom since his asylum appeal was dismissed some years ago.
13. I have referred in this decision to paragraph 399 of HC 395 although, like Judge Plimmer, the appeal cannot be allowed or dismissed under the Immigration Rules for the reasons which she gives in her error of law decision at [10-12]. The reasons which I have given above, the appeals of the three appellants are allowed on human rights grounds (Article 8 ECHR). I emphasise again that I have dealt in my decision as regards the appeal on Article 8 ECHR grounds with the only matter which remained at issue between the parties, namely that as to whether the effect upon the qualifying children of deportation would be unduly harsh.
Notice of Decision

The decision of the First-tier Tribunal was set aside by a decision of Upper Tribunal Judge Plimmer dated 2 October 2015. Following a transfer order of the Upper Tribunal, I have remade the decision. The appeals of the three appellants, BN, QM and NN against the decisions of the Secretary of State dated 24 November 2014 are allowed on human rights grounds (Article 8 ECHR).

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Upper Tribunal Judge Clive Lane