Tribunal decisions

The decision

Upper Tribunal
Immigration and Asylum Chamber Appeal Number: DA/00249/2011

THE IMMIGRATION ACTS

Heard at Field House
Promulgated on:
On 9 October 2012, 11 December 2012 and 6 June 2013

On 13 June 2013

Before

Upper Tribunal Judge Kekić

Between

Baboucarr Nyang
Appellant

and

Secretary of State for the Home Department

Respondent

Determination and Reasons

Representation
For the Appellant: Mr I Palmer, Counsel
For the Respondent: Ms M Tanner, Senior Home Office Presenting Officer

Details of appellant and background

1. This is an appeal against a deportation order made by the Secretary of State on 17 December 2010. It comes before me following a grant of permission by First-tier Tribunal Judge Froom on 20 July 2011 and the finding, on the papers, that there were errors in the Tribunal’s assessment of the best interests of the appellant’s child. The latter decision was taken by Upper Tribunal Judge Macleman on 18 August 2011 following a concession by the Secretary of State.

2. No application for anonymity has been made however I have, nevertheless, referred to the appellant’s child only as D and to his (the child’s) mother and grandmother as RC and TC respectively.

3. The appellant is a citizen of Gambia born on 9 February 1973. He attempted to enter the UK as a visitor in September 1995 but after being refused leave to enter he claimed asylum. That appeal was dismissed in his absence on 14 May 1998. Shortly afterwards, however, he was granted leave to remain for 12 months as a spouse and in September 1999 obtained indefinite leave to remain. He divorced his wife on 6 April 2004 (C3; respondent’s bundle) and was refused naturalisation in November 2005 on the basis that he had failed to disclose that there were robbery charges pending against him. On 30 June 2008 he applied for his ILR to be endorsed in his current passport but that was refused on 5 January 2011 because the Secretary of State took the view that the deportation order invalidated his existing leave.

4. In 2004 the appellant met RC, a British citizen, and they began a relationship. On 22 February 2009 a son, D, was born to them although by that stage the relationship had already ended. The appellant’s witness statement of 1 March 2011 (Bundle 2) in which he claims they are engaged and the statement of 9 October 2011 (Bundle 1) maintaining an ongoing relationship at that stage are both untrue. Records show that the relationship ended when R fell pregnant (social worker’s report and TC’s statement).

5. On 16 June 2009 the appellant was convicted on three counts of Class C (x 2) and A (x 1) drugs offences and one count of possessing a prohibited weapon. He was sentenced to a total of 5 years and 3 months. The offences took place on two separate dates. The firearms offence and possession of a class C drug weapon occurred on 28 June 2007. The two other offences of possessing Class A and C drugs with intent to supply occurred on 14 October 2008. The appellant entered not guilty pleas to all the offences.

6. The remarks of the sentencing judge are contained in the respondent’s bundle. The appellant was found to be “an opportunistic drug dealer, operating at a mid level of dealing with an arrangement, clearly, in the drug community that customers could attend at your premises at any time, day or night, to obtain their supplies from you. The level of your involvement is indicated by the figures produced in the trial and also in the confiscation proceedings. That a street value which I acknowledge is the ultimate value, you were dealing in no less than £15,000 worth of Class C and Class A”. The judge found that “following your arrest you were bailed but continued to be available to trade as before…It beggars belief that having been arrested, as you were and then being bailed, you had no hesitation in continuing to be involved in the drug trade”.

7. The appellant was released on licence on 2 June 2011 but remained in immigration detention until 16 December 2011 when he was granted bail which currently appears to be under the authority of the Immigration Service. The terms of his licence continue until January 2014.

8. RC has a history of 13 theft and kindred offences, 15 offences relating to police/courts/ prisons, one drug offence and one firearm offence. She has a total of 13 convictions for 30 offences. As far as I can see, her last conviction was on 12 November 2010 and the first was in 2004. She also has three warnings/cautions between 1999 and 2003. At the date of the First-tier Tribunal hearing she was in prison. She was released in June 2012, a year earlier than scheduled, now lives in a hostel and has regular contact with her son.

9. On 17 December 2010 the Secretary of State made a deportation order under section 32(5) of the UK Borders Act 2007. This was accompanied by a letter dated 5 January 2011. For reasons which are not clear, the Secretary of State then withdrew that letter, and issued another on 3 March 2011. The deportation order of December 2010 has not been revoked and remains the only order before me.

Appeal hearing

10. The appeal first came before me on 9 October 2012. On that occasion, the appellant attended with his two sureties and gave oral evidence. He spoke in English. He confirmed his date of birth and address and adopted the witness statements contained in Bundles 1 and 2 as part of his evidence. He confirmed the contents were true and accurate. He also confirmed that TC, the maternal grandmother of his child, still supported his appeal.

11. The appellant was asked for an update on the application for guardianship made by TC in respect of the appellant's son. He stated that the proceedings had been adjourned until 4 December 2012. He did not have a notice of hearing with him. He said that his own application for contact and parental responsibility were to be heard at the same time. He was asked whether TC opposed his application. He said that she recently told him that she opposed it because she wanted to make sure he did not fall back into his bad ways. He said that he used to visit his son three or four times a week but since he started work he visited him on Saturdays only.

12. The appellant confirmed that RC was now out of prison and that she visited their son every Tuesday at her mother's house.

13. The appellant stated that his contact with his son was supervised in the sense that TC was present. There was no supervision by social services. The appellant was asked why it would be in his son's best interests for him to stay in the UK. He stated it was because he loved his son and his son loved him. He said the child cried when it was time for him to leave in the evenings because he wanted him to stay and play. He confirmed he was still on licence and he had a probation officer whom he visited once a month. He said his solicitors had asked the probation officer to prepare a report and he did not know whether this had been done.

14. The appellant was asked how his removal to Gambia would affect contact with his son. He stated that he normally took his son out on Sundays (although I note this contradicts his earlier evidence that he saw him on Saturdays) and they went bowling or ice skating. It also contradicts the evidence that visits were supervised at TC’s house. If he were to be removed to Gambia he would not be able to do this. That completed examination in chief.

15. In cross-examination, the appellant confirmed that TC had three sons and one daughter. Two of the sons were married and lived some 10 minutes away from their mother’s house whilst the other son, CC, lived with his girlfriend in TC’s house. They all played a role in the child's life and took him out. The rest of the family also visited regularly.

16. The appellant stated that his son went to nursery but he could not recall the name of the nursery. He could not remember the name of the road either but he said it was about 10 minutes walk from the house. He had been there four or five times accompanying TC. His son started at nursery last year aged two when the appellant was still in prison and attended Mondays through to Thursdays from midday until three o'clock. When he was older, he would attend a local school.

17. The appellant was asked about TC's objections to his application for contact. He replied that he got on well with her and she did not oppose his contact with the child but always wanted somebody to be with him and the child. The appellant stated that his wish was for his son to eventually live with him but for the time being he wanted parental responsibility which would give him legal rights to make decisions about his son.

18. The appellant agreed that his name was not on the birth certificate and explained this was because he had been in custody when the birth had been registered and that he now had to apply to the court for his name to be added to the certificate. This matter was also going to be dealt with in December along with the other proceedings; no further information on this matter has been provided to date. He said that the hearing in the Family Court had been adjourned some months ago to await a social worker's report. He did not have a copy of that report with him but he did have it at home.

19. The appellant stated that RC was not a stable person as she was recovering from her addiction. As far as he was aware, she did not want their child to live with her.

20. The appellant stated that he was notified of today's hearing last week by his solicitors. He was asked whether he had spoken to RC or TC about coming along to give evidence. He said that his son had chickenpox and so had to stay at home with TC. With regard to the lack of updated statements from them, he explained that he thought the letters they had already written were sufficient.

21. The appellant stated that he had been supporting his son financially ever since his birth. Whilst he was in prison he made arrangements for money he earned to be sent to TC for the child. These were sums between £60 and £100.

22. The appellant stated that his last employment had been with Royal Mail although he had no evidence of that. However one of his sureties had worked there with him. He had been employed between 2005 and 2007. Prior to that he had worked as a cleaner at Heathrow and he also worked at Honda in Langley and at Priory School. He had a private pension scheme with Royal Mail. It had been difficult for him to produce evidence of his employment because he had been in prison but he gave his national insurance number to the immigration authorities so they could check his tax contributions. He confirmed that his son had been born on 22 February. That completed cross-examination.

23. In re-examination the appellant was asked again about TC's opposition to his application for a court order. He conceded that she had opposed the application but he said he did not know if that was still the position. He confirmed that his contact with his son was unsupervised, but that was always the case and when asked for the duration of his visits he said that the week before last it had been unsupervised for some four hours. His visits were always during the daytime. That completed re-examination.

24. In response to my questions, the appellant stated that CC was 23 or 24 years old. He worked as a forklift truck driver on a full-time basis. His girlfriend worked full-time in a nursery. TC worked two nights a week as an operator for a taxi company. TC took the child to nursery and collected him. I asked the appellant to explain the contradiction in the evidence he had just given Mr Palmer and what he had said earlier regarding supervised contact. He stated that the situation had gradually developed and since he had come out of prison he had built a better relationship with TC. I asked him what had brought about RC's change of heart with respect to his involvement with their child. He said that she had seen how much the child enjoyed being with him and she was now concerned that his best interests were met. Neither party had any questions arising from mine. There was then a short break for us to consider the social worker’s report of June 2012 (Report B) which had just been submitted. On resuming, Ms Tanner had no questions to ask. Mr Palmer asked the appellant to clarify the situation regarding his contact with his child as all the references in the report were to supervised contact at least up until the preparation of the report in June. The appellant maintained, however, that he had always been allowed to take his son to the park on his own even before June 2012.

25. I asked the appellant how I could reconcile his oral evidence with the evidence in the report which suggested that both TC and RC opposed his application for unsupervised contact. He replied that his solicitors had tried to ascertain the reasons for the opposition and he had been told that there were none. He denied that he had put any pressure on them to write letters in support of his appeal.

26. At this stage after some discussion it was agreed that further evidence would be required specifically from his probation officer, updated information from the social worker, the OASys report and evidence of identification from TC and RC to link to their handwritten letters. It was also considered desirable to adjourn the hearing until after the hearing of the family Court on 4 December. A date of 11 December was agreed.

27. Regrettably for reasons not clear to me, the hearing was not listed as had been agreed and it resumed on 11 January 2013 instead. Prior to the hearing I received two bundles of documents. It transpired at the hearing that one of those bundles (containing the social worker’s report – Report A, correspondence between TC and social services and a statement from TC) had not been served by the appellant’s solicitors and that Mr Palmer, and indeed Mrs Tanner, had not seen copies. I can only surmise that the documents emanated from TC or someone acting on her behalf given their contents. Copies were made for the parties. Mr Palmer sought an adjournment not just to consider the documents but because the proceedings in the Family Court had been adjourned until 24 January with a further hearing some time in February. He undertook to forward documentary confirmation of same. Mrs Tanner did not object to the application which I therefore granted.

28. The matter then resumed on 6 June 2013 having been adjourned at the appellant’s request from the hearing on 17 April. On 31 May copies of a contact order dated 22 May 2013 from Slough County Court and a letter dated 4 March 2013 from the Probation Services were served on the Tribunal. At the resumption of the hearing it transpired that Counsel had additional documentary evidence which the appellant’s solicitors had failed to serve either on the Tribunal or on the respondent. Copies had to be made. At the conclusion of the hearing I received a letter from the appellant’s representatives forwarding a letter dated 20 March 2012 addressed to them from the UKBA confirming that the appellant’s leave remained valid until the conclusion of his appeal hearing.

29. After seeking to clarify various matters, I heard submissions from the parties. Mr Palmer did not wish to call any oral evidence from the appellant.

30. Ms Tanner relied upon the reasons for deportation letter. She acknowledged that the main issue was proportionality and that the interests of the appellant’s child were a primary though not a paramount consideration. She submitted that now four years old, D had lived with TC, his maternal grandmother, most of his life and had been provided with a stable and caring home. TC’s son, CC, his partner and their new baby, also resided there. The three reports from the social worker spoke in glowing terms of TC’s diligence and care and concluded that all the child’s needs were met. He was still very young and had not formed anything more than a limited relationship with the appellant. Regardless of the contact between them, deportation was proportionate given the appellant’s actions and conduct. Ms Tanner relied upon AD Lee [2011] EWCA Civ 348 and ZH (Tanzania) [2011] UKSC 4. She submitted that family life would be disrupted because of the appellant’s bad behaviour and that was the reality of deportation. The appellant was a repeat offender and a drug dealer and the UK was entitled to rid itself of him. It was all very well to be contrite once the deportation order had been signed but this was a man who had continued to push drugs even when on bail. Factors such as the revulsion of society at his crimes and the deterrent factor outweighed family life as per N (Kenya [2004] EWCA Civ 104. Had the child been older or had he not had other stable family members in his life, the respondent’s submissions might be different but in the circumstances of this case where the child’s parents had both been involved in drugs and where he had found a loving and stable home with his grandmother, the appellant’s deportation was proportionate.

31. Mr Palmer accepted that the appellant’s convictions were for serious offences but submitted that his low risk of reoffending and the low risk he posed to the public were relevant considerations when proportionality was assessed. There was up to date information from the Probation Services in lieu of an OASys report. The appellant had had lawful leave to remain and had worked lawfully. He had been of good character for many years. He had also been in a relationship with RC and had done his best to be a good father to their child. Whilst in prison the appellant had behaved well and achieved qualifications. Prison officers had written references for him. He had engaged in training services and obtained a fork-lift truck licence. He had an offer for employment and he had worked lawfully previously. The family court had made an order for parental responsibility and contact which it did having decided that was in the best interests of the child. As the order was made by consent, TC must have agreed to it despite her prior reservations. The appellant’s circumstances differed from those of Lee. The public interest was not served by his deportation. Mr Palmer also relied on Sanade (British children – Zambrano – Dereci) [2012] UKUT 00048 (IAC) and Mohan [2012] EWCA Civ 1363 and argued that deportation would be disproportionate given the strong factors in the appellant’s favour.

32. At the conclusion of the hearing I reserved my determination which I now give.

The Law

33. The deportation order was made on 17 December 2010 and served on 3 March 2011. As it was made prior to 9 July 2012 when HC 194 was introduced, it falls to be considered under the old Immigration Rules. Neither party argued otherwise.

34. There is no dispute over the fact that the appellant is liable to deportation under section 32 of the UK Borders Act 2007. No claim for asylum has been put forward to challenge deportation and the submissions focused solely on Article 8(2) and the issue of proportionality, the question being whether the removal of the appellant, notwithstanding its effect on him and others, is proportionate to the legitimate purposes of immigration control and prevention of crime.

35. There is little dispute over the facts of the case, although the respondent believes that the appellant is using his son to strengthen his appeal against deportation. The Tribunal must undertake the proportionality balancing exercise and decide whether more weight should be given to the public interest or to the rights of the appellant and his son.

36. It is established case law that there is a strong public interest in removing foreign citizens convicted of serious offences, which lies not only in the prevention of further offences on the part of the individual concerned, but in deterring others from committing them in the first place, promoting public confidence in the treatment of foreign citizens who have committed them and serving as an expression of society’s condemnation of criminal activity. In N (Kenya) [2004] EWCA Civ 104, Judge LJ, as he then was, said this on the public interest aspect in the balancing exercise:

…"public good" and the "public interest" are wide-ranging but undefined concepts. In my judgment (whether expressly referred to in any decision letter or not) broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged. They include an element of deterrence, to non-British citizens who are already here, even if they are genuine refugees and to those minded to come, so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation”(at paragraph 83).

37. The remarks in judgments such as N (Kenya) and OH (Serbia) [2008] EWCA Civ 694 on the weight to be given to the views of the Secretary of State were overtaken by the introduction of the provisions on deportation by way of the UK Borders Act 2007, which made deportation compulsory for foreign nationals over the age of 17 sentenced to more than 12 months in prison except where removal would breach the ECHR or the Refugee Convention. As pointed out in MK (deportation – foreign criminal – public interest) Gambia [2010] UKUT 281 (IAC):

“The seriousness of an offence and the public interest are factors of considerable importance when carrying out the balancing exercise in article 8. As Parliament has now determined where the public interest lies in cases of automatic deportation, that factor must be taken into account together with the Tribunal’s own assessment of the seriousness of the offence.”

38. It is possible in a case of sufficiently serious offending that the factors in favour of deportation will be strong enough to render deportation proportionate even if it does have the effect of severing established family relationships (JO (Uganda) [2010] EWCA Civ 10, paragraphs 24 and 27) and AD Lee [2011] EWCA Civ 348.

39. Strasbourg jurisprudence contains guidance on the matter of the expulsion of long term immigrants. Much of this focuses on those who have spent their formative years in a member state where the following factors are considered relevant when assessing proportionality:

The personal behaviour of the appellant
The duration of residence
The consequences for the appellant and his family
Existing links with the country of origin
The time elapsed since the offence was committed and the appellant’s conduct during this period
Ties with the host country
The person’s age at the time the offences were committed

40. Where a child is involved, that child’s best interests are a primary consideration following section 55 and I accept that. In this case, the main, if not the only, thrust of the Article 8 claim is the appellant’s family life with his son, D. In Sanade, relied upon by Mr Palmer, the Upper Tribunal summarised the following as relevant to deportation cases:

a. Article 8 is to be interpreted in a manner consistent with Article 3 of the UN Convention on the Rights of the Child and the statutory duty to have regard to guidance designed to promote the best interests or welfare of the child set out in s.55 the Borders, Citizenship and Immigration Act 2009.
b. The welfare of the child is a primary but not a paramount consideration in immigration decision making. That is to say it is a consideration of the first order and not merely a factor, but not the only consideration or necessarily a determinative consideration.
c. The welfare principle applies irrespective of the nationality of the child, but where the child is British that is a particular pointer to the place where the child’s future lies. British nationality imposed a significantly higher threshold when a decision-maker was considering whether a child should be expected to join a parent abroad.
d. Factors that may outweigh the welfare of the child in a particular case are rights based considerations such as those contained in Article 8 (2) in particular the prevention of disorder or crime or the protection of the health and rights of others.
e. Weighty reasons are required to justify separating a family who are legitimately resident together in the United Kingdom.
f. Even where it is not reasonable to expect the other partner to a relationship or the children to accompany the person subject to immigration action to reside abroad the interference with family life may be justified.
g. Notwithstanding the distress caused to a child and the loss of advantage to the child of (in these cases) a father’s presence guidance and support, the conduct of the person facing deportation may be so contrary to the public interest as to make such separation proportionate and justified.

41. Mohan [2012] EWCA Civ 1362: court acknowledged the importance of evidence from the family court and cited Nimako-Boateng (residence orders – Anton considered) 2012 UKUT 00218 (IAC) which held that the family court was best placed to evaluate the interests of the child. But also pointed out that whereas in family law proceedings the welfare of the child is the paramount consideration, in immigration proceedings it is a primary rather than paramount consideration. Bearing all of the above in mind, I now proceed with my assessment.

Findings and conclusions

42. I have carefully considered the evidence and the submissions made. In accordance with the guidance from the courts and section 55, I begin with an assessment of the best interests of D who is affected by the proposed deportation of his father. The respondent initially disputed paternity but that is no longer the case and indeed DNA evidence has been provided to confirm the claimed relationship. Although the report points out that no ID document was received for the father, he was in prison at the time and his saliva sample appears to have been taken by a prison officer. D is now four years old. He was born when the appellant was in prison and was just short of two years when the appellant was released from prison and commenced supervised contact with him. When his mother was arrested and imprisoned in February 2009, D was moved into the care of his maternal grandmother, TC. He has remained with her since, apart from a brief period between January and early April 2010, when his mother was out of prison and offered separate accommodation.

43. The appellant has maintained, and this is confirmed by other evidence before me, that since his release in December 2011, he has seen his son regularly and has attempted to build a relationship with him. There are, however, contradictions in the evidence about the frequency and nature of the contact. Giving oral testimony in October 2012, the appellant stated that he saw his son 3-4 times a week, but then later said he saw him weekly on Saturdays; this was then changed to Sunday visits. He also gave conflicting evidence as to whether the contact was supervised or unsupervised. He was unable to explain why he maintained he had unsupervised contact when the social worker’s report indicated that the only contact he was permitted was supervised. Regrettably, there is no up to date evidence in respect from either RC or TC and neither attended any of the hearings before the Upper Tribunal. Nevertheless, on the evidence before me, I accept there has been contact since the appellant’s release in December 2011 although I am unable to make any finding as to the frequency of contact due to the conflicting evidence. I find that the appellant’s contact has always been supervised. I prefer the evidence from the social worker in her three reports (and confirmed by C) to this effect rather than the appellant’s oral evidence which in any event was contradictory about the nature of the contact.

44. I accept that there is family life between the appellant and D. That is not disputed by Ms Tanner and the parties both focused on the issue of proportionality when making their submissions. I also accept that the appellant has genuine affection for his son. It may be that he is well aware that his son is the strongest element of his appeal but that does not, in my view, detract from his feelings for the child. With regard to the proceedings in the family court, I find that these were prompted by TC’s application for a Special Guardianship Order rather than exclusively by the deportation proceedings.

45. In assessing where the child’s best interests lie, I adopt the premise that it is usually the case that a child is better off having both parents to care for him/her. Of course that is not always the case. However, the severance of the bond between a child and a parent is not something that can be undertaken lightly.

46. This case does not follow the usual pattern of a child living with one or both parents and where one or both face deportation. In this case, the child lives with his maternal grandmother and has done for the overwhelming majority of his short life. Both his parents have spent long periods in prison and indeed the appellant’s physical absence from D’s life has been longer than his presence in it. Both parents have been involved in drugs; RC as an addict and the appellant at least as a dealer, if not a user too. The social services placed D on the Child Protection Register even before his birth and have always supported the living arrangements with TC. There appear to have been serious concerns voiced by TC, less so by RC and also to some extent by the social services but I am cognisant of the recent order from Slough County Court which, although giving TC a SGO, gives the appellant parental responsibility and limited weekly contact rights, gradually increasing in duration and to be reviewed in December. That order, granted by consent as Mr Palmer emphasised, is of great importance to my assessment.

47. It is fair to say that the evidence before me shows that the relationship between TC and the appellant with regards to D has been somewhat rocky. In her statements of 20 February 2011 and 13 February 2012 TC supports the appellant’s attempts to remain here and to see his son. However her statement to the Tribunal and the respondent dated 5 December 2012 (which was copied to Counsel and the Presenting Officer at the January hearing) shows a complete about turn. She maintains that due to the appellant’s continuing criminal activities, the appellant is no longer allowed to visit her property and meets his son at a supervised centre. She has also adduced evidence in the form of correspondence between herself, the social worker and Slough council with regard to having her front door changed for a stronger one due to fears about the appellant and his cohorts. TC states in her December statement that she had a panic alarm installed in her home and that she had passed on to the police a recording of the appellant being involved in criminal activities. She maintains that the appellant has not changed his lifestyle and that D was at risk.

48. I also have four hand written letters from RC. The first is dated 1 June 2011. It confirms that she and the appellant have not been in a relationship for the previous three years, that she is content for the appellant to have supervised visits to see their son but that she objects to the child ever living with him. On 2 August 2012 she wrote to support the appellant’s attempts to build a relationship with the child and confirmed they have a strong bond. The third letter is undated and was sent from HMP Woking. In it RC maintains that she has been in a relationship with the appellant for seven years and supports his appeal against deportation. Plainly she is wrong about the duration of the relationship; seven years does not accord with the evidence that they met in 2004 and parted when she fell pregnant in 2008. The fourth letter is dated 23 November 2012 and also supports the appellant’s appeal.

49. Further information is provided by the social worker, Dorothy Sessanga. I have three reports from her (although two are co-signed by others). All reports purport to have been prepared for the hearing on 6 August 2012 presumably before the Family Court even though at least one was signed after that date. The reports differ in certain respects and I have labelled them as A, B and C. At the commencement of the June hearing I attempted to clarify which report(s) had been before District Judge Parker at Slough Country Court, but Mr Palmer was unable to assist. It appears that they were prepared both in respect of the appellant’s application for parental responsibility and TC’s application for a Special Guardianship Order.

50. Report A is signed by Ms Sessanga but is undated. It was faxed to the Tribunal on 6 December 2012 along with TC’s statement and other correspondence and copies were made for the parties of all those documents at the January hearing (see paragraph 27 above). It is prepared under section 7 of the Children’s Act 1989 for case SL 12P00199 (which I note is the reference for the proceedings in Slough County Court). We are told that Ms Sessanga has been the allocated social worker since 23 February 2012, that she has met the appellant twice, met RC once and met TC and D four times. They have also had telephone contact. Ms Sessanga has also had access to the records of Social Care, the Probation Service and the previous social worker. At the time the report was prepared, presumably in the period between 23 February and 6 August 2012, the appellant had supervised contact with the child who had been made the subject of a Child Protection Plan before his birth due to his mother’s dependence on heroin, methadone and morphine. It is reported that whilst in prison, the appellant completed a short programme on substance misuse, provided mandatory and voluntary drug tests with negative results but received an adjudication on 27 January 2011 for receiving wraps of cannabis to which he pleaded guilty. Since his release he has been compliant with licence conditions and attended parenting classes.

51. Significantly, the report states that neither RC nor TC support the appellant’s application for contact and parental responsibility because they were concerned about his ability to provide adequate care in view of his past involvement with drug dealing and to make decisions in D’s best interests. Additionally, RC was concerned that the appellant was seeking parental responsibility as a gateway to securing his own immigration status. TC was concerned at the appellant having unsupervised contact and the risk of D being exposed to inappropriate company.

52. Ms Sessanga takes D’s feelings into account, as much as can be done for such a young child. She confirms she has spoken to him twice and during both meetings “he had difficulty in articulating his feelings about his father or talking about his current contact with him”.

53. Ms Sessanga warns against rushing the relationship between the appellant and D so as not to cause him confusion but observes that the appellant had shown limited insight into potential tensions. She notes, however, that there appeared to be a good relationship between them.

54. She concludes that the local authority supports the making of a Special Guardianship Order in respect of TC. She states that the local authority has concerns that if granted parental respondent the appellant may seek to take D out of the country and not return him to TC’s care and therefore recommends supervised contact until TC decides this can change and overriding parental responsibility to remain with her.

55. I note that the report wrongly states at paragraph 5.2 that the appellant was sentenced to three years in prison; in fact his total sentence was 5 years and 3 months which is correctly stated at 4.11. The report states that the Home Office confirmed that the appellant had ILR and would retain that status unless he loses his deportation appeal (4.11). This is legally incorrect and I shall deal with this later.

56. Report B is signed by Ms Sessanga on 12 June 2012 and by two other social workers from different departments on 28 January 2011. It begins with the same history as is set out in A. It twice repeats the misinformation that the appellant received a three year sentence (at 4.2 and Part 2(i)); this should be 5 years and 3 months. It states that the appellant was released in June 2011 (Part 2(i) and (j iv)); in fact he was not as he remained in immigration detention until December 2011. The report repeats the opposition of TC and RC to the appellant’s application for contact and parental responsibility (at 5.3) and the concerns that he is placing his own needs above those of the child and applying only to secure his own status here (5.4). Positive references are made about the care provided by TC and the stability she has given the child. The same warnings about not rushing into making changes are set out as is the child’s inability to articulate his feelings about his father. The report confirms that there are no concerns about the care provided by TC who has demonstrated that she is able to promote D’s welfare and has his best interests in mind. The same recommendations are set out as above. Several references from friends/neighbours of TC are attached.

57. The report contains a note at Part 3 about religious upbringing. It is recorded that RC wants D to be raised as a Christian whereas the appellant wants him to be circumcised. RC opposes circumcision.

58. The pages between Part 4(h) – 4(q) are missing from the report. They could not be made available to me at the hearing.

59. I can see no reference to deportation in this report; only a reference to the appellant having ILR.

60. Rather perplexingly, Report C is signed by Ms Sessanga and the Assistant Team Manager on 28 August 2012 and by two other social workers on 28 January 2011. In these circumstances, it is unclear when the report was actually prepared. It contains information not set out in either of the two other reports. I am not clear why this is or whether Judge Parker had this report or one of the other less detailed reports before him when he considered the applications of the appellant and TC.

61. This report sets out the sentence correctly at 2(d) but wrongly at 2(i) and refers to the deportation order but again misstates that the appellant will continue to have ILR unless he loses his appeal. The report states that the appellant has been employed as a lorry driver five days a week from June 2012.

62. It is reported that during a home visit to the appellant on 22 August 2012, he stated that he no longer supported TC’s SGO application. He objected to the control TC had imposed on him (3 b i). The conflict between the appellant’s wish to have D circumcised and RC’s objection to it is recorded (3 b ii and 4aa) and RC has also voiced concerns about the appellant continuing to deal in Class C drugs (3 b iii). There is also a lengthy record of a conflict between the appellant and TC about contact (ibid).

63. The same concerns about the appellant’s application for unsupervised contact are expressed by TC (4w, 4aa and 4bb). The recommendation in conclusion is that contact remains supervised by TC until she feels it is safe and that frequency of contact should be at her discretion.

64. Despite the reservations expressed by TC and RC and despite the recommendation of Slough Social Services, it appears that at the hearing at Slough Country Court on 22 May 2013, an order was granted by consent. This gave Special Guardianship to TC and parental responsibility to the appellant with contact to take place on a weekly basis beginning with two hour visits at a contact centre and progressing to longer periods at different venues to be reviewed in December. I have not been made aware of the documentary evidence placed before the court.

65. I take note of the evidence of the appellant, as given in oral testimony and as contained in his witness statements. In his statement of 1 March 2011 he maintains that he and RC are engaged and plan to marry as soon as they are released from prison. He adds that they keep in touch via letters and write and talk about their future and their son’s future with them as a family (paragraph 3). He states that he regrets his past wrong doing, that he just wants to live with RC and their son, that this was his first offence and he had no other convictions. In his statement of 16 March 2011 he states that he works in prison and spends his earnings on calling RC and their son and on supporting the child. He confirms that TC had agreed to D moving in with him once he was released from prison. The evidence from TC and the social worker does not, however, accord with this claim. In the 9 October 2011 statement he repeats the contents of the first statement and confirms that upon release he wants his child to live with him. He appears to have given up the idea of a relationship with RC; instead he maintains she continues to be dependent upon drugs and that he is the only parent able to look after D. In the 9 October 2012 statement he maintains that he has been visiting D every day since his release, spends most of the day with him and takes him to parks, shopping and restaurants. However, even by his own oral evidence, this is plainly untrue. He confirms he has instructed solicitors to apply for a parental responsibility order on his behalf. He states that whilst in prison he has been good and has abided by the law.

66. I have a two page fax described as photographs of the appellant and D. They are of very poor quality and without the originals they are of little use as I cannot clearly make out what they depict.

67. I referred earlier to the incorrect reference in at least two of the social worker’s reports to the appellant’s indefinite leave to remain. Although the appellant was, in no uncertain terms, told in the reasons for deportation order that his existing leave was invalidated by the deportation order, I do not blame him for his belief that he still had ILR. This is due wholly to the confused information emanating from the Secretary of State. On the one hand, as I have just said, the reasons for deportation letter clearly states that the deportation order invalidates the appellant’s existing leave (at paragraph 9), and a letter of 25 April 2012 from the UKBA, Criminal Casework Directorate (CCD) states that the appellant “should not benefit from any grant of leave” due to his serious criminal conduct. However I have also been given a letter sent to the appellant’s solicitors on 20 March 2012 from the CCD of the UKBA which states that “Until your client’s appeal is concluded, his ILR is still valid and consequently there are no restrictions on his taking employment in the UK”.
68. Despite the confused message sent out to the appellant by officials at the UKBA, the position is made clear in the Immigration Rules (at paragraph 362) and the Immigration Act 1971; a deportation order has the effect of invalidating any existing leave to enter or remain. This was confirmed by Ms Tanner at the hearing. Further, it is confirmed by case law: for example, in the recent case of Fitzroy George [2012] EWCA Civ 1362. The appellant’s indefinite leave to remain therefore ceased to exist on 17 December 2010.

69. The result of this is that the District Judge, through no fault of his own, was under the impression that the appellant had ILR. This is plain from the directions from the court on 4 December 2012 which ordered the appellant to “promptly notify all other parties and the Joint Legal Team if his indefinite leave to remain is revoked”. I do not say that the outcome of the proceedings would have been different had the judge been aware of the correct legal position, however it is certainly possible that a different decision would have been reached had the appellant’s loss of status been known.

70. I take note of the letter dated 4 March 2013 from the appellant’s Probation Officer. This confirms the appellant is subject to licence conditions, that he has reported for all appointments, has engaged with training services and has obtained a forklift licence.

71. Several references from prison officers have also been adduced. Essentially they speak of the appellant in positive terms, describing him as polite and helpful, determined to change his life for the better, cooperative and courteous. I am told he had enhanced prisoner status, communicated well with prisoners and staff and made good use of resources. The references prompted a letter from the Regional Manager of Custodial Services dated 4 January 2011 to the Immigration Team in Newcastle maintaining that prison officers should not be writing references and that the matter would be addressed. As Mr Palmer submitted, however, the letters form part of the evidence and I have taken note of them. I would say though, that I find it surprising that none of the references make any mention of the appellant’s adjudication of 27 January 2011 for receiving cannabis (referred to in Report A). I note that the appellant has not sought to dispute this claim which is contained in evidence that he has himself submitted. Had there been no such incident, I would have expected his legal team to have made their challenge known to the Tribunal.

72. I have been referred to the Inland Revenue letter of 29 January 2013 which purports to cover the appellant’s employment in the UK. This shows periods of employment (via Remploy Ltd) for the tax year 2007 and 2008 and job seeker’s allowance claimed between 28 July 2008 and 5 April 2010. No other employment is recorded. His total earnings as recorded by the Inland Revenue amount to under £32,000 between 2006-2012. There is no record of any earlier employment. Other evidence provides additional, if conflicting, information. According to Report C, the appellant has been employed as a lorry driver five days a week from June 2012 but the letter from the Job Deal Case Manager at Milton Keynes College on 1 November 2012 states that the appellant commenced employment in August 2012. The letter dated 16 July 2012 from Purple Rose Ventures confirms employment commenced on 23 July 2012. Two pay slips for July and August 2012 have been submitted from Purple Ventures. They show payment in cash with no tax or national insurance deductions with. Oddly, although the appellant only commenced work on 23 July, his pay slip for that month shows income of £460 which is almost the same as a full month’s work in August (£462.08). There is no PAYE reference for the employer on the July pay slip. The Inland Revenue letter also shows that the appellant had claimed job seeker’s allowance between 28 July 2008 and 5 April 2010. However as he was in prison for at least a year of that period, it is unclear how he was able to make this claim.

73. The appellant’s representatives maintained on 24 March 2011 and 23 May 2011 (in respect of written representations for the CMR hearing) that the appellant was in a subsisting relationship with RC at that time. Plainly this was not the case as the evidence is that the relationship ended when RC fell pregnant in 2008.

74. The appellant has made several visits back to Gambia. According to the Secretary of State visits were made from 13 March 2001 until 1 November 2002 (includes a visit to the USA), 30 February 2004 – 28 March 2004, 7 October 2004 – 29 October 2004 and 4 November 2004 – 21 January 2005. No evidence was called as to any earlier visits.

75. Having taken account of all this evidence I reach the following conclusions with respect to proportionality. The best interests of D are to continue living with TC and to have contact with both his parents in a controlled manner. The appellant’s removal will impact upon D to some extent and may well have the effect of severely disrupting family life between them. As I have already stated, the severing of ties between a parent and child cannot be done lightly. However having balanced the factors for and against deportation I have reached the conclusion that greater weight must be given to the public interest in the circumstances of this case.

76. On the appellant’s side I have factored in the following positive points:
The presence of his child, a four year old British citizen and the involvement, albeit limited, he has in his life
That the best interests of that child are to continue living with TC and to have regular contact with the appellant and RC; he cannot be expected to accompany the appellant to Gambia
The order of Slough County Court giving the appellant parental responsibility and contact on a weekly basis (albeit that order may have been made on a misunderstanding of the appellant’s legal status here)
The appellant’s long residence here with indefinite leave to remain from September 1999 until December 2010
The appellant’s employment for the tax years ending 2007 and 2009
That the appellant has been compliant with the conditions of his licence and has attended all appointments with the Probation Service
That he has good references from prison officers
That he has undertaken training since his release and has obtained a licence to operate a forklift truck
That he achieved various qualifications whilst in prison
That he has found some employment since his release (although I am unclear whether this consisted of training and whether it is ongoing)
That he was been assessed as having a low risk of reoffending and is a low risk to the public.

77. Against the appellant are the following factors:
His criminal convictions for four offences, three of which involved drugs and one a prohibited weapon
The fact that contrary to what he claimed, this was not a one off but that the convictions related to offences committed at different times
That the appellant continued to deal drugs whilst on bail after his arrest for the first offence
That he received a lengthy prison sentence for very serious crimes
That he pleaded not guilty to those offences
That the third and fourth offences occurred just a few months before his child was born and so at a time when he knew he was going to be a father and should have been acting responsibly
That the sentencing remarks show that he had been involved in drug dealing for at least 15 months prior to his arrest
That he received an adjudication of receiving cannabis wraps when in prison (to which he pleaded guilty)
That he has sought to mislead the court by maintaining that he was in a subsisting relationship with RC in 2011 and 2012 even though the relationship ended in 2008
That contrary to what is claimed in his witness statement, TC and RC have never been in favour of D living with the appellant and there is no evidence they ever agreed to it upon his release
That for half of D’s life the appellant was in prison and contact was virtually non existent
That the UK should not have to put up with criminals such as the appellant
That society is entitled to express its condemnation of foreign criminal activity
The importance of the deterrent factor
That the appellant’s situation has been brought about by his own repeated misconduct
That he was an adult when he committed all the offences for which he was convicted
That there is no evidence of the appellant’s ties with the UK other than through his son
That he maintains ties with Gambia as evidenced by his lengthy visits there
That he spent his formative years (and indeed the majority of his life) there and came here as an adult
That his asylum claim appears to have been unmeritorious given that the appellant made regular visits home after having lost the appeal but once he obtained ILR.

78. In reaching my decision that the public interest factors override the rights of the appellant and his son, I recognise that due weight is to be given to the order of the county court and to the view taken by the District Judge. However, it remains the case that whilst the best interests of the child are paramount in the family court, they are a primary but not necessarily a determinative consideration in the immigration courts. D is still very young. His relationship with the appellant is in its infancy. He is a happy child, by all accounts, and all his needs are catered for by TC (as confirmed by the social worker’s reports). Notwithstanding the difficulties surrounding his birth and early life, he has been fortunate to find a loving and caring environment in which he has thrived. He is still very young and will, I find, adapt without undue distress to his father’s absence. It is still early days since the appellant’s release and too soon to tell if he has genuinely changed his ways. Having been under intense scrutiny since his release due to his licence conditions, the family court proceedings and his deportation appeal, one would expect there to be no reoffending. His deportation does not mean a permanent end to family life. The appellant will have the opportunity to apply for revocation of the deportation order in due course. By then he will hopefully have shown that he has reformed.

79. I recognise that my decision will cause the appellant distress however having carefully balanced all the considerations for and against deportation, I have reached the conclusion that the very serious nature of the appellant’s offending and the other factors identified outweigh his rights and those of his son. The appellant must take responsibility for this as it is his repeated bad conduct that has led to this situation and the break up of his family life with his young son. As recognised by the courts, that is what deportation does; that is the reality of deportation.

Decision

80. The First-tier Tribunal was found to have made errors of law. I now remake the decision and dismiss the appeal against the deportation order.

Signed:

Dr R Kekić
Judge of the Upper Tribunal
12 June 2013