Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00091/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 August 2016
On 20 December 2016

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

Secretary of State for the Home Department

Appellant
and

MR B
(ANONYMITY DIRECTION MADE)

Respondent

Representation:

For the Appellant (Secretary of State): Mr S Whitwell, Home Office Presenting Officer
For the Respondent (Mr B): Mr R Spurling, Counsel, instructed by Selva & Co

DECISION AND REASONS

1. This is the Secretary of State's appeal against the decision of First-tier Tribunal Judge Thanki who in a decision which was dated 30 July 2015 and promulgated shortly thereafter allowed Mr B's appeal against the Secretary of State's decision to deport him. For ease of reference throughout this decision, I will refer to the Secretary of State, who was the original respondent, as "the Secretary of State" and to Mr B, who was the original appellant as "the claimant".
2. This appeal came before me on 4 February 2016 when I found that Judge Thanki's decision had contained a material error of law such that it had to be set aside and re-made. I gave my decision orally following that hearing and I shall incorporate the substance of that decision into this decision.
3. The claimant, who was born in 1991, is a national of Dominica who moved with his family first to Montserrat, when he was 5 or 6 years old and then subsequently to the UK, when he was about 12, in 2003, after Montserrat had become difficult to inhabit owing to the eruption of the volcano there. He was granted indefinite leave to remain in this country in July of that year. As I noted in my previous decision as to error of law, regrettably, the claimant did not behave well in this country and by 2013 he had acquired eight convictions for 22 offences, which included a conviction for supplying class A drugs in May 2011 for which he was sentenced to eighteen months in a youth offenders' institution. He was also sentenced in July 2013 to sixteen weeks' imprisonment suspended for two years in respect of an offence of battery of a former partner (and the mother of one of his children, to whom reference will be made below).
4. In August 2011 the claimant was served with a Notice of Liability to Deportation and it is not now challenged on his behalf that as at that time, if not earlier, his immigration status in this country was precarious. The Notice was served because by virtue of Section 32(5) of the UK Borders Act 2007, the claimant was subject to automatic deportation, and having considered the representations which were made in response to this Notice, a deportation order was made against which the claimant did not appeal. This order was dated 17 March 2014.
5. Subsequently, the claimant made further representations in February 2015, based on his family life in this country, but these representations were refused by the Secretary of State, who certified his Article 8 claim under Section 94B of the Nationality, Immigration and Asylum Act 2002, the effect of which was that the claimant could only appeal against that decision from outside the UK. However, on 26 March 2015 the claimant was granted an extension of time in which to appeal against the 17 March 2014 decision and it was in respect of that decision that his appeal came before Judge Thanki.
6. The claimant's appeal was on the basis that his deportation would be in breach of his Article 8 rights because of his family life with his then current partner, Ms Mo.. and their young daughter, P... P.. had been born on 8 November 2013, some fifteen months or so after the claimant and Ms Mo.. had become partners. At the time of the hearing before Judge Thanki, Ms Mo.. was pregnant with the couple's second daughter, L, who was born on 18 March 2016. Ms Mo.. is a British national and accordingly so are her two children. The claimant also has a son by his previous relationship with a Ms Mi.., who was the victim of the assault in respect of which the claimant was convicted in 2013.
7. Although pursuant to Section 32(5) of the UK Borders Act 2007 the Secretary of State is obliged to make a deportation order in respect of a foreign criminal (which by virtue of his 2011 conviction this claimant was), this requirement is subject to the provisions of Section 33 which include (under Section 33(2)) "Exception 1" which is where the removal of the foreign criminal would breach that person's Convention rights. Accordingly, if the removal of the claimant could properly be said to be in breach of his Article 8 rights, then his removal would be unlawful.
8. Whether or not a removal would be in breach of Article 8 in cases such as this is governed by what is set out within the Immigration Rules at paragraph 398, 399 and 399A in particular which themselves embody what is set out within the new part 5A of the Nationality, Immigration and Asylum Act 2002 (inserted by Section 19 of the Immigration Act 2014 from 28 July 2014) and in particular Section 117C. These will be discussed below. It has always been common ground before me that the key issue in this case, although not necessarily the only issue, was and remains whether or not the effect of deportation would be "unduly harsh" on the claimant's partner and her children.
9. Judge Thanki considered, but in my judgment without adequate reasoning, that the effect of deporting the claimant would be unduly harsh on P... As already noted, I set that decision aside and in the course of so doing I discussed the conflicting decisions given by this Tribunal in MAB (para 399; "unduly harsh") USA [2015] UKUT 435 and KMO (section 117 - unduly harsh) Nigeria [2015] UKUT 543. I expressed the view in my earlier Decision that the approach adopted in KMO was to be preferred, which was to the effect that consideration of what was "unduly" harsh had to take account of the level of public interest there was in deportation, such that the more serious the offending of the foreign criminal, the less likely would it be that his deportation would be "unduly harsh".
10. The view I expressed in my earlier Decision has been endorsed by the Court of Appeal in MM (Uganda) & Another v SSHD [2016] EWCA Civ 450, in which the need for a proportionality assessment in cases such as this was made clear, the court concluding at paragraph 24 as follows:
"Accordingly the more pressing the public interest in ... removal [of the foreign criminal], the harder it will be to show that the effect on his child or partner will be unduly harsh".
11. With the agreement of both parties, after I had found an error of law, this appeal was relisted before me so that a fresh decision could be made, and I gave directions for the service of further evidence so that the claimant's circumstances and that of his family, could be considered as at the date of the hearing.

The Hearing
12. I heard evidence from the claimant and Ms Mo.. (whom the claimant had married as recently as 19 May this year, the day before the claimant's 25th birthday). I also heard evidence from the claimant's mother and grandmother. All of these witnesses had previously made statements (in the grandmother's case she had written a letter which stood as her statement) which statements stood as their evidence-in-chief. They were cross-examined on their statements. Although the claimant's stepfather had prepared a statement in anticipation of giving evidence, in the event he did not do so.
13. The file (which had been prepared in accordance with the directions which I had given earlier) also contained a statement from a psychiatrist and social worker. I also heard submissions from Mr Whitwell on behalf of the Secretary of State and Mr Spurling on behalf of the claimant, Mr Spurling relying also on the skeleton argument which he had helpfully prepared.
14. I do not intend to set out within this Decision everything which was sent to me during the course of the hearing, but shall only set out below what is necessary. However, I have had regard to all the evidence which was given and the submissions which were made, as well as to all the material contained within the file, whether or not the same is specifically referred to below.
The Claimant's Criminal History
15. A list of the claimant's convictions has helpfully been set out within paragraph 5 of the skeleton argument prepared on his behalf, and for someone so young, is extensive. His first conviction was in September 2004, when he was just 13 years old, and in possession of a Stanley knife, for which he received a referral order. In May 2006, when aged 15, he pleaded guilty to burglary of a commercial premises. The following month, he was convicted of taking and driving away a moped, as well as bail offences, for which he received a twelve month supervision order. Then in January 2007, still aged 15, he was convicted of possession of an imitation firearm (a cigarette lighter) for which he again received a supervision order plus a twelve month community order.
16. In June 2007, after the claimant turned 16, he was convicted of possession of crack cocaine, as well as a bail offence and breach of community order, for which he again received a twelve month community order. Then, the following month, he was again convicted of possession of crack cocaine, as well as heroin (again apparently for personal use) for which on this occasion he was sentenced to four months' detention.
17. Still aged 16, just before his 17th birthday in May 2008, he received a further six months' detention sentence for aggravated vehicle taking, where he had stolen a car and driven it dangerously without a licence. That conviction was ten days before his 17th birthday.
18. The claimant did not stop offending when he became an adult, because on 3 March 2011, when he was 19, he was convicted of possession of class A drugs, cocaine and heroin, with intent to supply, for which he was sentenced to eighteen months in a young offenders' institution. The judge's sentencing remarks in respect of this offence are instructive, because it is clear that the judge did not accept the excuses which the claimant had put forward to explain his actions. In the first place it is clear that the claimant had said that he "did not really know how serious it was" to be dealing in drugs but this was rejected by the judge who noted that the claimant had taken "the trouble to hide these drugs about your person, quite a bit of trouble to hide them" which explained why the judge was "not convinced that [he did not know that] what you were doing was very wrong indeed". The judge also considered that the claimant would have known from his previous times in detention centre just how serious dealing in drugs was.
19. The judge also said this about another plank of the claimant's mitigation:
"I have to say I am not too impressed with the mitigation that you committed these offences in order to support your family."
20. At this time, the claimant was in a relationship with Ms Mi.., who was the mother of his son K.
21. After his release from this sentence, the claimant met Ms Mo.. and started his relationship with her, but it seems that she did not appreciate just how precarious the claimant's immigration position was. Although he had been notified of his liability to deportation, it appears that he only told her that there were matters to be resolved with regard to this. Be that as it may, it is accepted that the claimant's relationship with Ms Mo.. developed at a time when on any view his immigration status in this country was precarious.
22. In the meantime, relations with his previous partner, Ms Mi.., were clearly not good and this led to the most recent of the claimant's convictions, which occurred as a result of his assaulting Ms Mi... Although the claimant pleaded guilty to this offence (for which he was sentenced in the Magistrates' Court to a sixteen weeks' suspended sentence with a supervision requirement on 13 January 2013) (this was when the claimant was 21 years old), it is clear from all the evidence which I have considered in this appeal that the claimant does not really accept his responsibility for this offence. It was clear from what his mother said in evidence that his position was that he did not actually assault her, because when asked why she had referred to the offence as "the alleged" offence, the claimant's mother said that this was because she knew the lady involved and did not believe her. When asked whether this is also what she had been told by the claimant, she indicated that it was.
23. In addition to the offences of which the claimant has been convicted, he also admitted other offences for which he was cautioned or warned, being one of criminal damage when he was aged 13, another of shoplifting when he was also aged 13 and two occasions on which he was warned for possession of cannabis for personal use when he was aged 18. He also was given a warning for harassment in June 2006 when he was aged 15 but he apparently now denies this.
24. The Nexus Report also lists a substantial number of further alleged offences (some eleven in total) of which it is said on his behalf that with regard to three of them "the evidence clearly exonerated" him and in regard to the other eight (which includes offences of assault occasioning ABH and harassment of a girlfriend plus possession of an air pistol and theft) "the police took no further [action] for lack of evidence capable of supporting a prosecution".
25. It is accordingly clear that certainly up until the time he was released from his sentence of imprisonment, and beyond, until the time he was convicted of the assault on his former girlfriend, the claimant has got a terrible record, and that even now he does not accept fully his responsibility for the offences of which he has been convicted, even though in respect of the most recent offence he pleaded guilty.
The Claimant's Family Life
26. Although at paragraphs 35 and 36 of his most recent witness statement, the claimant appears to suggest that he has recommenced contact with his son from his relationship with Ms Mi.., his evidence regarding this changed during cross-examination, and it was apparent (and ultimately accepted on his behalf) that currently he does not have any contact with him. It is not argued on his behalf that the effect of deportation on his son could be said to be unduly harsh.
27. However, he clearly does currently enjoy a close relationship with Ms Mo.., and all the evidence I heard was to the effect that he is currently the primary carer for his two daughters while Ms Mo.. goes out to work. Ms Mo.. is a midwife and needs on occasion to work unsocial hours, but whenever she is at work the claimant looks after their children.
28. Ms Mo.. does not have a large family in this country. She has a brother, but he does not have children and I was told is likely soon to move out of London to be with his new partner. Although Ms Mo.. has a good relationship with her sister, she has children of her own and is not able to supply much support. However, the claimant has an extremely large family in this country, of which very many are very supportive. The claimant's mother has regularly had P.. to stay, and tries to see her grandchildren every weekend. She will do anything she can to help. She apparently has a baby herself now, and the claimant is surrounded by cousins. I heard evidence from the claimant's grandmother, who told me she had had her first grandchild aged 26, that she has five children, fourteen grandchildren and eight great-grandchildren, who all provide mutual support to each other. The claimant himself is one of five children, so there is a large support network available currently to assist. However, I accept that the claimant is currently a supportive father who is involved in the care of his children with Ms Mo.. and that this care is one of the factors which enable Ms Mo.. to carry out the responsible job which she does.
29. Regarding Ms Mo.., she is about ten years older than the claimant and is, I find, a capable and impressive lady. She clearly takes her responsibilities as a midwife seriously, and she told me that she was very dependent upon the support which she currently receives from the claimant. However, as I have already noted, the claimant did not apparently inform her from the outset just how serious his immigration position was, and their youngest child was born in 2016, which was sometime after Ms Mo.. herself must have appreciated that the claimant's position was precarious, because he had been detained in 2014, pending possible deportation. Ms Mo.. told me that it was difficult while the claimant was detained, but with the help of various members of the claimant's family, she had just about been able to cope.
30. Although she was reticent, Ms Mo.. did tell the Tribunal of her depression following a dreadful car "accident" in about 2003, when she and a female friend had apparently been chased by a gang who the police later told her were known or suspected of carrying out gang rapes. This had a terrible effect on her, especially because she had been unable to talk about it for some years. She has also apparently suffered from postnatal depression after the birth of both her children. The claimant's case was advanced on the basis that if the claimant was deported, Ms Mo.. might find it so difficult to cope that the effect would in these circumstances be unduly harsh on the children.
31. It was submitted on behalf of the claimant that some confirmation of this risk could be gleaned from the psychiatric report of Susan Pagella, who is a psychotherapist. Reliance was also placed on the report from Ms McKenzie, a social worker.
Ms Pagella's Report
32. Regrettably, I am not able to place any real weight on this report, which, in Ms Pagella's own words is heavily dependent on her "own extensive professional working experience" as there appears to be a "dearth of scientific research in related fields" (see at page 4 of her report at page 48 of the Bundle). The report is heavily dependent on what Ms Pagella has been told by the claimant and Ms Mo.., which is quoted at length. So for example, at page 6 of the report Ms Mo.. is quoted as follows, referring to the claimant:
"I trust him. All his crimes happened in the past when he was immature. He's emotionally mature now and very gentle; intuitively picking up the children's needs and what needs doing around the house."
33. As his most recent conviction, for assaulting his former partner, was in respect of an offence committed when he was 21, it is simply not correct that all his offences were committed "in the past when he was immature". I also note that at page 13 (page 57 of the Bundle) Ms Pagella when listing the "current post sentencing indicators" refers to his having "not re-offended" since his release from prison. This is, of course, simply incorrect, and appears to airbrush out of consideration what I certainly regard as a serious offence, that of assaulting his former partner, and mother of his son (especially when considered in the context of his previous history which involves harassment and allegations of assault against previous girlfriends/partners). I also cannot accept what is said under "Conclusion" at page 15 (page 59 of the Bundle) that the claimant "can be considered to be himself a victim of his own past, growing up without a father present and other disruptive elements during his young life", which apparently leads Ms Pagella to conclude "as a mental health professional" that the claimant's "level of re-offending and consequently his risk to the public [is] extremely low if he remains within the UK". In light of his extensive history of criminal offending, the fact that he has remained out of trouble for the past three years (at a time when he must have appreciated that he needs to be on his best behaviour to have any chance of avoiding deportation) cannot properly be a sufficient basis for concluding that his risk of re-offending is "extremely [my emphasis] low", especially as, as I have already noted above, the claimant still did not appear to accept the seriousness of his most recent conviction, or even that in any real sense he was guilty as charged, despite his plea at the time.
34. I also note what Ms Pagella regards as the "pertinent criteria", being "maturity, motivation, remorse" and "moving on and growing up psychologically", but again from his answers given in cross-examination and his evidence generally, I did not find the claimant to be someone who had genuinely moved on from previous offending towards a more mature approach. I noted in particular that his evidence would change when under challenge. So, for example, although he had originally stated that he had been seeing his son after originally winning his appeal before the First-tier Tribunal, and that that position had only changed after his birthday this year, when it was pointed out to him that in Ms McKenzie's report, which was written a month before his birthday, she had referred to his telling her that he was not able to have contact and that this was because he lacked the finances to appeal to the courts (see at paragraph 2 of her report) (at page 66 of the Bundle), after various attempts to explain the discrepancy between what was said there and what his evidence was now, his account changed to being that "truthfully" he had only seen his son once and that contact had effectively consisted of his leaving presents for his son.
35. Neither the claimant's mother nor his grandmother appeared to appreciate just how serious was the claimant's criminal history either, his grandmother even going so far as to say in her letter of support that after the death of his grandfather "he started getting into trouble just like any normal teenager which I know". By no stretch of the imagination can this claimant's criminal history be explained away as "just like any normal teenager".
36. Ms Pagella also relies on "research" which, in her words, "has shown the importance of fathers' presence in their childrens' lives as a role model and a balance to the feminine input of mothers". She goes on to suggest that "one cannot make up for the deprivation of the other without a long-term damaging effect to the child's psychological development... [which] psychological damage may be overt or covert". She then quotes from other research.
37. I would accept that in general, as a generic proposition, it would be preferable for a child to be brought up by both parents, but the weight to be given to this factor must be assessed on a case by case basis.
38. Earlier in her report, Ms Pagella had given her opinion that the relationship between the claimant and his wife and daughters was a genuine caring one, and although there may have been an element of calculation in the timing of their marriage in the context of this appeal, I accept that it is more likely than not that this is a genuine relationship.
The Immigration Rules and Part 5A of the Nationality, Immigration and Asylum Act 2002 (as inserted by Section 19 of the Immigration Act 2014).
39. As already indicated above, at paragraph 8 of this decision, whether or not the removal of this claimant would be in breach of his Article 8 rights is governed essentially by what is set out within the Immigration Rules at paragraphs 398, 399 and 399A in particular and these Rules are intended to embody what is set out within the new Part 5A of the Nationality, Immigration and Asylum Act 2002, and in particular Section 117C. I set out first the relevant Immigration Rules, as follows:

" Deportation and Article 8
A398. These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked.
398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
399. This paragraph applies where paragraph 398 (b) or (c) applies if -
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
399A. This paragraph applies where paragraph 398(b) or (c) applies if -
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported?."
40. I also set out the provisions now contained within Part 5A of the Nationality, Immigration and Asylum Act 2002, as inserted by Section 19 of the Immigration Act 2014, as follows:
""PART 5A Article 8 of the ECHR: public interest considerations
117AApplication of this Part
(1)This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts-
(a)breaches a person's right to respect for private and family life under Article 8, and
(b)as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2)In considering the public interest question, the court or tribunal must (in particular) have regard-
(a)in all cases, to the considerations listed in section 117B, and
(b)in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3)In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
117BArticle 8: public interest considerations applicable in all cases
(1)The maintenance of effective immigration controls is in the public interest.
(2)It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a)are less of a burden on taxpayers, and
(b)are better able to integrate into society.
(3)It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a)are not a burden on taxpayers, and
(b)are better able to integrate into society.
(4)Little weight should be given to-
(a)a private life, or
(b)a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5)Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6)In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a)the person has a genuine and subsisting parental relationship with a qualifying child, and
(b)it would not be reasonable to expect the child to leave the United Kingdom.
117CArticle 8: additional considerations in cases involving foreign criminals
(1)The deportation of foreign criminals is in the public interest.
(2)The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3)In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4)Exception 1 applies where-
(a)C has been lawfully resident in the United Kingdom for most of C's life,
(b)C is socially and culturally integrated in the United Kingdom, and
(c)there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5)Exception 2 applies where C 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 C's deportation on the partner or child would be unduly harsh.
(6)In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
117DInterpretation of this Part
(1)In this Part-
"Article 8" means Article 8 of the European Convention on Human Rights;
"qualifying child" means a person who is under the age of 18 and who-
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;
"qualifying partner" means a partner who-
(a) is a British citizen, or
(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 - see section 33(2A) of that Act).

(2)In this Part, "foreign criminal" means a person-
(a)who is not a British citizen,
(b)who has been convicted in the United Kingdom of an offence, and
(c)who-
(i)has been sentenced to a period of imprisonment of at least 12 months,
(ii)has been convicted of an offence that has caused serious harm, or
(iii)is a persistent offender. ?"
41. As I have also indicated above, following the decision of the Court of appeal in MM (Uganda), it is necessary for this Tribunal to carry out a proportionality assessment in order to reach a decision as to whether the effect on the claimant's children or wife could properly be said to be "unduly harsh", bearing in mind the clear guidance given by the Court of Appeal in MM (Uganda) that "the more pressing the public interest in... removal [of a foreign criminal] the harder it will be to show that the effect in his childhood partner will be unduly harsh".
42. When assessing the effect on the claimant's children, I also have in mind the Secretary of State's obligations under Section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and that these interests are a primary consideration, although not necessarily a determinative one.
43. Although, as I have already stated, I do not consider that the claimant has a genuine parental relationship with his oldest child, I do accept that he does have a genuine parental relationship with his two daughters with Ms Mo.., and that on balance they would be better off remaining in this country, where they are currently settled, with both their parents. I also accept that Ms Mo.. is established in this country, and that the entire family derive considerable benefit from the support which is given by the claimant's extended family, which they would not have were they to leave the UK. I also accept that if the deportation decision is affirmed by this Tribunal and the claimant leaves without Ms Mo.. and his daughters, this will have a detrimental effect on them, although as Lord Justice Sedley remarked in his well-known dictum in AD Lee, "that is what deportation does". So far as Ms Mo.. is concerned, the claimant's relationship with her was formed at a time when his position in this country was precarious and so the issue I have to decide is whether or not the detrimental effect on their children of their father's removal can properly, in the circumstances of this case be said to be "unduly harsh", and in order to reach that assessment I have to consider all the factors, including the public interest in removing foreign criminals.
44. Having considered all the factors in this case, I consider that the factors in favour of upholding the Secretary of State's decision to deport this claimant are sufficiently strong as to outweigh the detrimental effect on his daughters of his removal, (and I would have also found, had I needed to, that these factors also outweighed the detrimental effect on his wife, if this had to be added to the effect on their children), such that the effect on them cannot properly be said to be "unduly" harsh.
45. I first of all do not accept that this claimant can properly be said to be a "reformed" character. As I have noted in the body of this Decision, it was clear that he does not truly accept his responsibility for his most recent offence, that of assaulting his former partner, and it is also clear that he still does not accept his responsibility for a number of the other offences of which he had been convicted. He also initially attempted to suggest to the Tribunal that he had recommenced contact with his older son from his relationship with Ms Mi.., and it was only during cross-examination that his evidence regarding this matter changed. Given his serious and extensive record of offending, I cannot accept that he represents a low risk of offending, and this is not only a factor which must be considered when assessing the risk to the public, but it is also relevant when consideration is given to the effect on his wife and children if he is to be removed. Having heard the claimant give evidence, my reluctant conclusion (based on this claimant's failure either to accept his guilt in respect of matters of which he had been convicted or even to acknowledge the seriousness in particular of his most recent offence, coupled with his lack of candour) is that he remains a dishonest man who is likely to reoffend. The likelihood therefore is that although his children at the moment benefit from the support that he currently gives them, that support is likely to be intermittent and his influence is not a wholly positive one. The children are at a very young age and although as a general rule it is in the best interest of children to be brought up by both parents, these children are young enough to adapt, they have a loving mother and they will have the support of their large extended family on their father's side. Also, as is clear from my findings above, not only would he not in all respects be likely to be a positive influence on his children but his continued presence would carry with it the likelihood of future disappointment and disruption in their lives were he to continue offending, which on the balance of probabilities I find he would.
46. Although Ms Mo.. herself does not have a large family on whom she can call in this country, even if the claimant is removed, she would still, if she remained here with her children, be able to rely upon the support of the claimant's large family, who I find would continue to be supportive.
47. The public interest in removing this claimant is in my judgment a high one, and I have in mind in particular, as I must, that by Section 117C(2) of the 2002 Act "the more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal". Dealing in class A drugs (cocaine and heroin) is a very serious matter indeed, and it is also clear from the judge's sentencing remarks that much of the claimant's mitigation was not accepted. The claimant's extensive criminal history is a further weighty negative factor, as is the assault on his former partner. What is contained within the Nexus Report is also unhelpful to his case.
48. Obviously, I have to assess the risk to the public, and I do so on the basis of all the evidence which I have considered, including my assessment of the claimant, which as I have already stated, was that he does not exhibit true remorse and was not an honest witness. In my judgement, as I have already indicated, this risk is significant and I consider that it is more likely than not that he will reoffend.
49. I also have to take account of both the revulsion which is rightly felt by the public towards people who offend as seriously and as often as this claimant has and also the deterrent effect which removing foreign criminal such as him will have on others.
50. Accordingly, I am satisfied that although the effect on the claimant's daughters (and his wife) would, at least initially, be detrimental, this could not properly be said to be "unduly harsh" in the circumstances of this case. The public interest in deporting this claimant is sufficiently large as to outweigh the effect on Ms Mo.. and her children by a large margin, such that the decision is entirely proportionate for Article 8 purposes.
51. It follows that the claimant's appeal must be dismissed.
Decision
The decision of the First-tier Tribunal, allowing the claimant's appeal against the respondent's decision to deport him is set aside as containing a material error of law. The following decision is substituted:
The claimant's appeal is dismissed.

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

Unless and until a Tribunal or court directs otherwise, the claimant 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 claimant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed:

Upper Tribunal Judge Craig Date: 15 December 2016