Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00287/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 5 May 2022
On the 20 June 2022

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

TM
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms A Radford, Counsel instructed by Turpin Miller Solicitors
For the Respondent: Mr T Melvin, Home Office Presenting Officer

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

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

DECISION AND REASONS
1. The Appellant is a citizen of France. Her date of birth is 15 April 1992. The SSHD wants to deport her following her conviction for the attempted murder of her then 1 year old son, A. A’s date of birth is 21 July 2017. The Appellant was convicted of the offence on 18 June 2018. On 22 November of that year she was sentenced to a term of imprisonment of five years. I have directed that the Appellant is anonymised on the basis that to disclose her identity may lead to the identity of her son who is a minor.
2. The SSHD made a deportation under pursuant to reg 23 (6) (b) of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) against which the Appellant successfully appealed. However, I set aside the decision of the First-tier Tribunal (Judge Sweet) to allow the Appellant’s appeal against the decision of the SSHD to make a deportation order. I found that Judge Sweet made an error of law for the following reasons:-
“5. The judge set out the 2006 Regulations at para.2 and specifically Reg.27(5) at para.22. However, the judge did not apply the regime to this appeal. The position of the SSHD was that the evidence indicates that the Appellant has a propensity to reoffend and that she presents a sufficiently serious threat to the public to justify deportation on grounds of public policy. The SSHD relied on the OASys assessment that the Appellant posed a medium risk to children despite there being a low risk of reoffending. At no point did the judge assess and make a finding of the threat posed by the Appellant with reference to Reg.27(5)(c) and the Schedule 1 factors on which the SSHD relied. The burden of proof rests on the SSHD to justify deportation. The judge erroneously at para.19 stated that the burden of proof rests on the Appellant. The judge weighed up the evidence for and against the Appellant and concluded that there are ‘compelling circumstances’ to allow the appeal. However, the assessment of proportionality is deficient because the judge did not grapple with whether the SSHD had justified the decision on public policy grounds.
6. Ms Radford addressed me at some length in respect of materiality. She relied on her response under Rule 24 of the 2008 Procedure Rules. The thrust of her argument is that in the light of the Appellant’s son’s best interest being served by having face to face daily contact with her (which must be inferred by the Family Court having granted the Appellant contact with him), it cannot rationally be concluded that the Appellant poses any threat to her son and therefore there can be no justification on public policy grounds that would justify deportation. She submitted that the judge could only have concluded that she did not present a threat to her son and therefore the decision to deport her cannot rationally be justified or proportionate. The public interest can only be served by allowing the Appellant to remain in the United Kingdom where she will be able to see her son. The problem with Ms Radford’s submission is that there had to be an assessment of whether the Appellant’s deportation was justified on grounds of public policy and whether she presented a threat, ‘affecting one of the fundamental interests of society ...’ in the context of the 2016 Regulations which is a wider concept than the threat she presents to her son.
7. There was an OASys Report in which the conclusion of the author (AB/68) is that the Appellant presented a medium risk of harm to children (confirmed in an email (AB/69)). The judge did not grapple with this. Moreover it is not entirely clear that the ISW had before her the OASys assessment. Furthermore, if Ms Radford is correct that the judge considered the Appellant did not present a threat in the context of Reg.27(5)(c) and that the decision was not justified on public policy, there would have been no need for the judge to consider proportionality because the appeal should have been allowed at that stage. I do not accept that such a finding was made by the judge or that it can be implied that the judge found that deportation was not justified and the Appellant did not pose a threat in the context of the 2016 Regulations. I do not accept that the evidence before the judge can only bring about one lawful outcome in this case.
8. While there is no challenge to the assessment of the best interests of the Appellant’s son, the judge failed to make material findings on the evidence and resolve issues of conflict. Ms Cunha stated that there were no credibility issues arising from the evidence of the Appellant and witnesses before the First-tier Tribunal.
9. I appreciate that there are features of the case that are capable of supporting the Appellant. However, it is not clear on what basis this appeal was allowed. I am unable to conclude with certainty that despite the errors made by the judge, there could only be one lawful outcome which is favourable to the Appellant.
10. The decision of the judge to allow the appeal is set aside. The appeal will be re-made by the Upper Tribunal”.
The Background
3. The Appellant came to the UK at the age of eight years with her father and his then wife (AT). Their marriage broke down. The Appellant remained close to AT. In 2013 the Appellant on a holiday to Sierra Leone became pregnant and gave birth to a girl, S. The Appellant returned to live in the UK with AT. S remained with the Appellant’s grandmother in Sierra Leone. On another trip to Sierra Leone in 2014–2015 the Appellant met ART and they began a relationship. The Appellant discovered she was pregnant while on another trip to Sierra Leone in 2016. She asserted that ART was the father and he believed this to be the case. The Appellant returned to the UK. ART sought asylum in Germany. The Appellant gave birth to A and she took care of him with the support of AT.
4. The Appellant’s relationship with ART broke down. He wanted to be more involved with A. He was making a financial contribution. The sentencing judge made reference to a series of long and bitter arguments between the Appellant and ART who was described by the sentencing judge as “bemused” by the Appellant’s refusal to put his name on A’s birth certificate. The sentencing judge rejected the Appellant’s evidence that she was surprised when a DNA test showed that ART is not A’s father.
The evidence
5. For the purposes of the resumed hearing the Appellant relies on a bundle (AB comprising 102 pages). This bundle was the bundle that was before the First-tier Tribunal. There was a second bundle (consolidated bundle “CM”) prepared for the resumed hearing. This comprises 29 documents including up-to-date statements from the Appellant, her aunt (MA), and her uncle (JG). There is also a statement from her cousin (KK). The Appellant continues to rely on the report by Deborah Orr, an independent social worker (ISW) of 22 June 2021 and photographs provided by Ms Orr. The Appellant continues to rely on a psychiatric report prepared by Dr Marc Jeanneret of 17 October 2018 and a psychiatric report by Dr Janet M Parrott of 23 July 2018. There is a letter from Samantha Butt of the Probation Service of 25 February 2022. There is also updated evidence from Deborah Orr in an email of 11 April 2022.
6. I am not going to set the evidence out in detail. There are no credibility issues arising from the Appellant’s evidence and that of her supportive family members. The Appellant’s circumstances are not in dispute. She is now residing in a studio close to her aunt and uncle’s home where A resides. She sees him daily (save on Sunday) and has become a part of his daily life and routine. Her intentions are to find a permanent place to live near to A. She is very much supported by MA and KK. The witness statements from all support that the Appellant has a positive relationship with her son and that the impact of deportation on him would be detrimental.
7. Ms Butt is the Appellant’s allocated probation officer and she confirmed that the Appellant has attended 65 out of 72 appointments. She has no concerns in regard to the Appellant complying with the terms of licence and that she has continually remained in touch and updated her accordingly as regards to changes including to accommodation and work. The Appellant is currently assessed as medium risk of harm to children and low risk of harm to the public including persons known to her. Ms Butt indicates that there have been no concerns in regard to the risk of harm she poses since 8 July 2021 from when the Appellant has been under her supervision. The Appellant was released from HMP Send on 31 August 2020.
8. Ms Orr in her report of 22 June 2021 makes positive observations about the Appellant and A. Her opinion is that she is “emotionally invested in him, and that would be a significant loss to him if [the Appellant] was to be absent form his life, after being consistently, predictably involved on an almost daily basis and providing nurturing, encouraging and safe care, under the supervision of his Special Guardians”. A benefits greatly from contact with his mother. Ms Orr makes reference to the proceedings in the family court and the comments made by the judge at 2.43 -2.45 of her report.
9. Ms Orr in an email of 11 April 2022 indicates that she notes the contents of the OASys Report which was completed on 1 November 2019 and that the Appellant has been found to pose a medium risk of likelihood of serious risk to children in the community and low in relation to other risks and that the chances of reoffending are low. Ms Orr reported that the Appellant is a “proactive care giver” who is “involved in [A’s] daily routine including personal care, mealtimes, bedtimes and helping with his learning ... my observations indicate a strong, loving, appropriate mother–child relationship”. Ms Orr did not think that the Appellant posed a risk to A. In her opinion A’s interests would not be served by her deportation and “it is likely that he would suffer emotional harm, which might in turn affect his social, educational and emotional functioning, affecting him in the short, medium and long term”.
10. The Appellant was assessed by the Probation Services as posing a low risk of reconviction on all models (7/14% years 1–2 OGRS; 6–11% years 1–2 OVP; 7/11% years 1–2 OGP). The OASys report states “current evidence does not indicate likelihood of serious harm” to the public. With regard to children, “there are identifiable factors of risk of serious harm. The offender has the potential to cause serious harm but is unlikely to do so unless there is a change in circumstances. The report specifies that the risk is to ‘children’. Namely her own son”.
11. For the purposes of sentencing the Appellant the Central Criminal Court (CCC) ordered two psychiatric reports to be prepared pursuant to Section 38 of the Mental Health Act 1983. The Appellant relied on the reports before the Upper Tribunal. I will set out the salient parts of the psychiatric evidence.
The psychiatric evidence
12. Consultant forensic psychiatrist Dr Janet M Parrott prepared a report dated 23 July 2018. She described the Appellant as a 26 year old woman who had experienced the traumatic loss of her mother during the war in Sierra Leone followed by the loss of what is likely to have been her primary attachment to her maternal grandmother and emigration to the UK. In Dr Parrott’s view the experiences are likely to have had a profound effect on the Appellant’s psychological wellbeing and are often associated with depression and a coping style that involves “marked denial of psychological difficulties”. Dr Parrott states that the Appellant has a history of depressive illness and symptoms of eating disorder. She states as follows:-
“It would be typical for symptoms of postnatal depression to emerge some months after the birth rather than immediately so it is not inconsistent for this deterioration to occur following [the Appellant’s] return from Sierra Leone. Clearly the social context is also important but it is probable that the disordered thinking of the depressive component made a significant contribution to the offending as [the Appellant] was otherwise described as kind and gentle and a competent parent”.
13. She identified as well as vulnerabilities strengths of character as the Appellant being able to maintain work and friendships and not having a history of violent offending. Dr Parrott concluded:-
“I am not therefore of the view that she presents with formal personality disorder in a form that may be associated with a significant risk of causing serious harm to the public. Further assessment and treatment of [the Appellant’s] depression and trauma related psychological problems will be appropriate”.
14. Dr Parrott states that the postnatal depressive illness suffered by the Appellant is likely to have contributed to her difficulties in managing her relationship with her ex-partner and “increasing the risk of impulsive behaviour”. She states that:-
“Given that it is not possible to explore this with [the Appellant] as she views it as inconceivable that she would harm her son it is not possible to present a picture of her thought processes at the time but there is a strong suggestion of linkage between the culturally normal concerns about voodoo and the depressive symptoms”.
She concludes:-
“I am not of the opinion that [the Appellant] is a significant risk of causing serious harm to the public. Her risk to her son requires further careful assessment and Social Services have been monitoring this matter which is likely to change as different factors are addressed”.
15. Dr Parrott indicates that the Appellant’s mental health difficulties are amenable to treatment and specialist consideration of a treatment plan would be valuable. She recommended that the court gave consideration to admission to hospital for an assessment under s.38 of the Mental Health Act under an interim hospital order. The sentencing judge adopted this recommendation which gave rise to Dr Marc Jeanneret’s assessment of the Appellant.
16. Dr Marc Jeanneret prepared a psychiatric report dated 7 October 2018. Dr Jeanneret considered the risk that the Appellant presented at that time to others and he stated as follows:-
“118. [The Appellant] has been convicted of the attempted murder of her son. Prior to this she has no convictions. Although she was expelled from school for fighting, she does not have a significant history of violence or antisocial behaviour.
119. In terms of modifiable risk factors, there is no evidence of a major mental disorder in the form of a psychotic illness, nor does she have a personality disorder and she does not display violent attitudes. There is no history of illicit substance misuse. She does have a history of traumatic experiences and the offence was committed in the context of [the Appellant] bringing up a baby in difficult living circumstances, including a troubled relationship with [ART], who she thought at the time was the father of her child, and feeling unsupported. It is also very likely that [the Appellant] was suffering from depression at the time of the offence (see below).
120. Given the above, I do not think that [the Appellant] poses a risk to the general public. [The Appellant’s] risk to others appears to be principally towards her own children, particularly postnatally, were she to find herself in similar circumstances, feeling depressed, unsupported and stressed. Moreover, although it is difficult to characterise exactly how [the Appellant’s] psychological difficulties contributed to the offence given her inability to provide a coherent narrative of it, it is likely that the risk would be higher were she not to address these difficulties through treatment.
Whether [the Appellant] was suffering from any psychiatric condition that might touch upon mitigation in this case].
Psychiatric condition
121. [The Appellant] has a history of depression and it is highly likely that she was suffering from an episode of postnatal depression at the time of the offence. She has a number of risk factors associated with the development of postnatal depression including her history of depression, being a single parent, poor social support and significant social stresses.
122. [AT’s] witness statements underline that she believed that [the Appellant] was suffering from postnatal depression. She describes [the Appellant] as neglecting her self-care and isolating herself socially after the birth of [A]. She describes her as withdrawing from activities that she had hitherto enjoyed such as going to church and this description of [the Appellant] by [AT] would be consistent with a depressive episode.
123. The assessment carried out by the South London and the Maudsley Criminal Justice Mental Health Service on the day of the offence also adds weight to the idea that she was depressed around the time of the offence. [The Appellant] initially said that she was ‘OK’ but then later admitted to being under significant stress prior to her arrest, something that she put down to her social circumstances of having to look after her son in the crowded and chaotic conditions of her accommodation and her strained relationship with [AT]. She also admitted to fleeting suicidal ideation as a result of these stresses.
124. When I spoke to [the Appellant] about symptoms of depression after [A’s] birth, she did say that she was sometimes tearful and worn out and would cry about once a week. She also said that she felt unsupported. Nevertheless she denied the presence of other depressive symptoms such as losing interest in daily activities or suicidal ideation and said that she was not sure if she had been depressed. However, this may be representative of a tendency on [the Appellant’s] part to minimise her psychological difficulties both in the past and in the present.
125. When I asked her whether she thought that she had been depressed around the time of the offence she said that she found it ‘confusing’ to think about. She indicated that this was because, in her mind, to admit that she was depressed, would be to make it more likely for others to think that she had carried out the offence, something that she could not countenance. In this respect, it is possible that [the Appellant], whether consciously or unconsciously, downplayed her depressive symptoms at the time. Moreover, [the Appellant’s] avoidant personality means that she tends to cope with psychological difficulty by denying it both to herself and to others. Indeed, this has been evident during her stay at the Bracton Centre where she has often presented as stable in mood, only to then break down in tears during an interview.
126. These two aspects of her personality [the Appellant’s] avoidant personality and her belief that admitting depression might indicate an admission of guilt suggest that [the Appellant] may have minimised the extent of her low mood after the birth of [A] when discussing it, and go some way to explaining the difference between [AT’s] description of [the Appellant] as being depressed postnatally and [the Appellant’s] more equivocal characterisation of her mood at the time”.
17. Although Dr Jeanneret stated that because the Appellant denied the offence and has been unable to provide a “coherent narrative of her state of mind during it” and this made it more difficult to present a picture of her mental state at the time and to outline a definitive link between depression and the offence, he emphasised that the Appellant does not have a criminal record or history of violence except from being expelled from school for fighting and she appeared to have been a caring mother having been described by [AT] as doing “everything a mother should for a baby”. Dr Jeanneret concluded the following at paragraph 129:-
“129. With this in mind, while it is not possible to say whether [the Appellant] would have carried out the offence were it not for her depression given that she cannot provide an insight into her mental state at the time, it is likely that her depression and the difficult social circumstances that she found herself in had a significant bearing on the offence”.
18. Dr Jeanneret at paragraph 130, in response to the question whether the Appellant suffers from a psychiatric condition such as a personality disorder that would touch upon the issue of dangerousness, stated that she suffers from recurrent depression with a current episode that is moderate in nature but that she does not meet the threshold for a diagnosis of personality disorder and “most pertinently there is no evidence of an antisocial element to her personality”. Dr Jeanneret concluded the following at paragraph 131:-
“131. Given this and her lack of previous offending, I do not think that she poses a risk of causing serious harm to the general public. As described in the risk section above, the principal risk that [the Appellant] poses is to her own children were she to find herself in similar circumstances of feeling depressed, unsupported and in difficult living circumstances. The risk would appear to be particularly acute to an infant postnatally”.
19. Dr Jeanneret in his recommendations stated that she does require psychological treatment to address her depression and the sequelae of the trauma that she experienced as a child and adolescent either in custody or in the community, and he recommended that she should be referred to the in-reach team of the prison.

Comments of the sentencing judge
20. The judge described the details of the offence. She said that on the morning of the offence AT woke A and fed him later that morning. The judge described that:-
“... [AT] heard a thud. She described it as if his head had hit the cot. Then she heard muffled cries, quite unlike any she had ever heard from him before. She called out to know what was wrong. She called a second time; when you did not reply and the noises continued, she went straight to the bedroom and saw the baby on his back on the bed; you next to the cot with you over him. You were holding the duvet over his face and pressing down with your weight. His legs were kicking out as he struggled to breathe. She pushed you off him and snatched him up. She described him as weak and floppy and blue around the mouth. She described him as seeming in shock. She demanded to know if you wanted to kill him and when you did not answer, she said she would call the police, and you said ‘go on then’, so she did. Her 999 call has been played in court. It bespeaks of her state of mind. Police quickly arrived and what followed is captured on body worn camera and audio equipment. Nothing could more clearly attest to her panic and fear, her reluctance to get you into trouble but her belief that of overriding importance was the safety of the baby”.
21. The judge said in respect of the relationship between AT and the Appellant that while it had problems they loved and trusted each other. AT was the person that the Appellant turned to in time of need including when she was pregnant and when she was remanded in prison. AT was the sole witness to the events of that day. The judge said that having reviewed the facts she was hopeful that the impact upon A physically at least and hopefully psychologically will be very little, if any. The judge made it clear that on the evidence before her what AT did (in calling the police) was what she had to do that day and what was right to do

The 2016 Regulations
22. “Decisions taken on grounds of public policy, public security and public health
27. (1) In this regulation, a ‘relevant decision’ means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with a right of permanent residence under Regulation 15 except on serious grounds of public policy and public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who –
(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or
(b) is under the age of 18, unless the relevant decision is in the best interests of the person concerned, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.
(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles –
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person’s previous criminal convictions do not in themselves justify the decision;
(f) the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.
(6) Before taking a relevant decision on the grounds of public policy and public security in relation to a person (‘P’) who is resident in the United Kingdom, the decision maker must take account of considerations such as the age, state of health, family and economic situation of P, P’s length of residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the extent of P’s links with P’s country of origin.
(7) In the case of a relevant decision taken on grounds of public health –
(a) a disease that does not have epidemic potential as defined by the relevant instruments of the World Health Organisation or is not a disease listed in Schedule 1 to the Health Protection (Notification) Regulations 2010(18); or
(b) if the person concerned is in the United Kingdom, any disease occurring after the three month period beginning on the date on which the person arrived in the United Kingdom,
does not constitute grounds for the decision.
(8) A court or Tribunal considering whether the requirements of this Regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.)”.
“SCHEDULE 1
CONSIDERATIONS OF PUBLIC POLICY, PUBLIC SECURITY AND THE FUNDAMENTAL INTERESTS OF SOCIETY ETC.
Considerations of public policy and public security
1. The EU Treaties do not impose a uniform scale of public policy or public security values: member States enjoy considerable discretion, acting within the parameters set by the EU Treaties, applied where relevant by the EEA agreement, to define their own standards of public policy and public security, for purposes tailored to their individual contexts, from time to time.
Application of paragraph 1 to the United Kingdom
2. An EEA national or the family member of an EEA national having extensive familial and societal links with persons of the same nationality or language does not amount to integration in the United Kingdom; a significant degree of wider cultural and societal integration must be present before a person may be regarded as integrated in the United Kingdom.
3. Where an EEA national or the family member of an EEA national has received a custodial sentence, or is a persistent offender, the longer the sentence, or the more numerous the convictions, the greater the likelihood that the individual’s continued presence in the United Kingdom represents a genuine, present and sufficiently serious threat affecting of the fundamental interests of society.
4. Little weight is to be attached to the integration of an EEA national or the family member of an EEA national within the United Kingdom if the alleged integrating links were formed at or around the same time as –
(a) the commission of a criminal offence;
(b) an act otherwise affecting the fundamental interests of society;
(c) the EEA national or family member of an EEA national was in custody.
5. The removal from the United Kingdom of an EEA national or the family member of an EEA national who is able to provide substantive evidence of not demonstrating a threat (for example, through demonstrating that the EEA national or the family member of an EEA national has successfully reformed or rehabilitated) is less likely to be proportionate.
6. It is consistent with public policy and public security requirements in the United Kingdom that EEA decisions may be taken in order to refuse, terminate or withdraw any right otherwise conferred by these Regulations in the case of abuse of rights or fraud, including –
(a) entering, attempting to enter or assisting another person to enter or to attempt to enter, a marriage, civil partnership or durable partnership of convenience; or
(b) fraudulently obtaining or attempting to obtain, or assisting another to obtain or to attempt to obtain, a right to reside under these Regulations.
The fundamental interests of society
7. For the purposes of these Regulations, the fundamental interests of society in the United Kingdom include –
(a) preventing unlawful immigration and abuse of the immigration laws, and maintaining the integrity and effectiveness of the immigration control system (including under these Regulations) and of the Common Travel Area;
(b) maintaining public order;
(c) preventing social harm;
(d) preventing the evasion of taxes and duties;
(e) protecting public services;
(f) excluding or removing an EEA national or family member of an EEA national with a conviction (including where the conduct of that person is likely to cause, or has in fact caused, public offence) and maintaining public confidence in the ability of the relevant authorities to take such action;
(g) tackling offences likely to cause harm to society where an immediate or direct victim may be difficult to identify but where there is wider societal harm (such as offences related to the misuse of drugs or crime with a cross-border dimension as mentioned in Article 83(1) of the Treaty on the Functioning of the European Union);
(h) combating the effects of persistent offending (particularly in relation to offences, which if taken in isolation, may otherwise be unlikely to meet the requirements of Regulation 27);
(i) protecting the rights and freedoms of others, particularly from exploitation and trafficking;
(j) protecting the public;
(k) acting in the best interests of a child (including where doing so entails refusing a child admission to the United Kingdom, or otherwise taking an EEA decision against a child);
(l) countering terrorism and extremism and protecting shared values”.
Submissions
23. Ms Radford relied on her skeleton argument of 5 May. Mr Melvin relied on his skeleton argument of 4 May. The evidence was not challenged by the SSHD. The appeal proceeded by way of submissions only. The representatives made oral submissions relying on their skeleton arguments. Mr Melvin also relied on the decision letter.

Findings and Reasons
24. A is currently living with MA and her husband who have been granted a Special Guardianship order by the family court under the Children Act 1989. Under the terms of the order, they were charged with actively promoting A’s relationship with his mother. To this end A has daily supervised contact with his mother. This was supervised directly by the social services. It is now supervised by MA.
25. There is no issue as regards the Appellant and witnesses’ credibility. The Appellant committed the offence against A when she was suffering from postnatal depression. This was accepted by the trial judge who imposed the minimum possible sentence.
26. I have read the sentencing comments in full. The judge set out in some detail the circumstances leading to the offence. I bear in mind that the Appellant had a mental disorder (post – natal depression) at the time of the offence. She has a recurrent depressive disorder. I accept the assessment of risk in the OASys report that there is a low risk of re-offending but that she presents a medium risk of serious harm to children. The risk is not to children at large but to her children.
27. Mr Melvin is right to be concerned about the Appellant’s failure to acknowledge wrongdoing. I am similarly concerned. I am also concerned that the Appellant has not while in prison or since release received psychological treatment despite the recommendations in Dr Jeanneret’s report. The Appellant denied the offence and was described as having an avoidant personality. I accept that she has received counselling in prison and the evidence supports a willingness to visit her GP and that she has been prescribed medication to help with depression and anxiety. While I note the specific recommendations made by Dr Jeanneret have not materialised, there is some support that the Appellant recognises depression and is motivated to seek medical treatment. I take into account that a failure to accept the commission of an offence could in some circumstances support an enhanced risk of reoffending. However, in this case taking into account all the evidence, there is no reason for me to depart from the assessment made in the OASys report which took into account the Appellant’s denial. Moreover, this was a matter which Dr Jeanneret took into account when assessing the risk presented by the Appellant.
28. The Appellant had postnatal depression and a difficult relationship with the man she said was the father of her son. She also reported a stressful relationship with her step-mother, AT. The evidence strongly suggests that her current domestic circumstances are less stressful. The situation has moved on since the Appellant was released from prison. She has made progress and has re-established a parental bond with A. I attach weight to the evidence of Ms Orr in this respect. It must be considered in the light of the Appellant’s history and what is contained in the psychiatric reports. However, it is relatively recent evidence concerning the Appellant’s relationship with A post release from prison.
29. The possibility of the Appellant suffering a further depressive episode cannot be excluded. However, the threat that she would present to her child/children would mitigated. She is under the radar of the social services and in respect of A she has supervised contact only, as ordered by the family court. The family court will not make an order that is contrary to A’s best interests. The Appellant may have more children. She may apply for entry clearance on behalf of her daughter, S. However, because of the seriousness of the offence committed by the Appellant and the involvement of the social services it can be reasonably inferred that any such changes in the Appellant’s circumstances will be monitored.
30. The Appellant is living alone with the full support of her family who are supervising contact that she has with A and who are acting as A’s legal guardians. Moreover, the Appellant is on licence and sees her probation officer. A will be returned to her full-time care only if the family court is satisfied that he is no longer at risk. While Ms Radford told me that the social services have closed their file, they will be involved in the event of a change in circumstances and/or a further application to the Family Court.
31. While the Appellant is entitled to the lowest level of protection under the 2016 Regulations, taking into account all the circumstances in this case I find that the SSHD has not justified her deportation on grounds of public security taking into account Schedule 1 factors. Ms Orr is of the opinion that the Appellant does not pose a risk to A. This is her opinion and I attach some weight to it. However, I consider whether deportation is justified on the basis that there is a low risk of re-offending and that the risk of harm to her children, should she re-offend, is medium. However, what is significant in this case is that the risk overall is mitigated for the foreseeable future by the circumstances outlined above. The risk is contained. The Appellant is not living with A and she cannot spend time alone with him without a court order and or the consent of the social services. It cannot be said that the personal conduct of the Appellant represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account her past conduct and that the threat does not need to be imminent.
32. In any event, if I am wrong about this, I find that the decision is not proportionate taking into account the best interests of the A which are to continue to see his mother in a controlled setting and where the risk to him is minimalised. This offence was committed while the Appellant was suffering from post-natal depression. It was accepted that the Appellant is a loving and caring parent to A and that the bond of mother and son is intact. I accept the observations of Ms Orr about the relationship of the and the benefits to A and the impact of separation from his biological mother. Taking into account all that A has been through to separate for a second time from A would be unduly harsh and not proportionate to the threat presented by the Appellant.

Notice of Decision

The appeal is allowed.

An anonymity direction is made.

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

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

Signed Joanna McWilliam Date 25 May 2022

Upper Tribunal Judge McWilliam