(Immigration and Asylum Chamber) Appeal Number: DA/00387/2012
THE IMMIGRATION ACTS
Heard at Manchester
on 3rd June 2013
UPPER TRIBUNAL JUDGE MARTIN
UPPER TRIBUNAL JUDGE HANSON
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Miss Mair instructed by Paragon Law Solicitors.
For the Respondent: Mr Harrison Senior Home Office Presenting Officer.
DETERMINATION AND REASONS
1. This is an appeal against a determination of a panel of the First-tier Tribunal composed of First-tier Tribunal Judge Saffer and Mrs S.A. Hussain JP (hereinafter referred to as ‘the Panel’) who in a determination promulgated on the 22nd October 2012 dismissed the appeal against a deportation order dated 7th June 2012 made pursuant to section 32(5) UK Borders Act 2007.
2. Permission to appeal was granted on a renewed application to the Upper Tribunal on 20th December 2012.
3. SA was born oin the 12th April 1968 and is a national of Pakistan. He has a British wife and three children who we shall refer to as S, born in 2002, A, born in 2004, and H who was born in 2009. The children are British citizens too.
4. SA was convicted on 21st August 2009 at Leicester Crown Court, after trial, of conspiracy to supply cannabis for which he was sentenced to a total of six years in prison on 11th December 2009. In his sentencing remarks HHJ Wide QC stated:
SA, you are forty one. You were convicted after trial of involvement in this cannabis factory. It was a substantial, quite sophisticated, commercial operation, growing drugs for profit. There were two rooms at the premises that were set up for cannabis production. So far as the first is concerned, the calculation is that it would produce something like £11-£15,000 worth of cannabis every eight months, which his something in excess of £65,- £90,000 worth a year.
The drugs that were taken out of the second room – on the operation that took place, after the burglary – were worth something like £6-£8,000, from one crop. That means that this factory would have the capacity, well in excess of around £100,000 a year mark. Quite sophisticated, commercial, for profit.
You were very high in the pecking order – there may have been someone higher than you, but you were plainly in a high managerial position. With your apparent respectability, you were in effect a “front man”, and you were very much involved with the renting of the premises, with their adaptations: so high up but not at the very top.
5. For what was his first offence SA was sentenced to six years imprisonment on each of the two countsry concurrently.
6. SA relied upon two exceptions to be found in the 2007 Act, namely that his deportations will breach his rights under the Refugee Convention and the Human Rights Act.
7. Having considered the evidence the Panel set out their its findings from paragraph 39 of the determination, the key elements of which can be summarised as follows:
i. SA is presumed to constitute a danger to the community having been convicted in the United Kingdom of an offence and sentenced to a period of imprisonment of at least 2 years – section 72 Nationality, Immigration and Asylum Act 2002. 
ii. SA’s claim he was an army cadet and received training as an engineer is accepted but despite being in touch with his family in Pakistan and having seen them and having produced evidence from Pakistan, he has provided no documentary evidence of having joined the army. 
iii. SA’s was telling to truth when he said he trained in Italy but was told after his training there was no work for him. It is not accepted it is reasonably likely he would have returned to Pakistan in 1998 or 2007 if he had concerns about his personal safety. In 2007 he travelled using his own passport issued by the Pakistani authorities. If the Pakistan authorities had any interest in SA they would have detained him on return. It was not accepted that he was in hiding during his time in Pakistan. 
iv. It is not accepted SA is a military deserter or would be perceived as such. He fabricated the claim to be in fear of the authorities and he came to the UK to work.  The claims under Articles 2 and 3 ECHR were dismissed for the same reason. 
v. The children’s best interests must be considered as a primary consideration. 
vi. Prior to his imprisonment SA was living with his family and involved in normal day-to day care. He maintained contact with them whilst he was in prison and they visited him. He was an exemplary prisoner. 
vii. There is no reason to doubt the close nature of the family relationship. It is accepted that the children will suffer emotional harm if SA is deported. The family and professional support noted as being available to the family whilst SA was in prison can continue, which given the number of testimonials is extensive. 
viii. It is not in the children’s best interests to live in Pakistan and not appropriate for SA’s wife to move to Pakistan. 
ix. The children will struggle to understand why they are separated from their father and their mother will have difficulty being able to re-assure them although she will have access to professional support. The consequences for foreign nationals committing serious offences and being a danger to the public is that they may be deported. 
x. SA’s removal will not prove critical to the family unit in a tangible sense as he damaged the fabric of the family through his offending and they have survived that trauma for three years already. 
xi. For the older children it will be a profound and truly awful event and one which they will never be able to forget. Children who lose a parent are likely to need help to recover but can be helped through that process by the remaining parent and professional support which in this case is given by the extensive number of testimonials. 
xii. It has not been established that the deportation of SA will remove permanently any sense of security and contentment the children retain and undermine the relationship with their mother. With a proper explanation for SA’s actions it is not reasonably likely they will blame their mother for their loss. 
xiii. SA is a danger to the community given the length of his sentence and minimisation of his role. He has twice shown no regard for immigration laws by using false documents. He has been convicted of a serious drug offence. There remains a risk of re-offending and harm being significant albeit that both are categorised as low. He has not had the chance to commit further offences as he remains in custody and has undertaken courses seen as being useful. 
xiv. It is necessary in a democratic society to deport SA to prevent crime and disorder as there is a propensity to offend and his convictions, his caution, his failure to acknowledge his guilt, and his abuse of immigration control. 
xv. The decision to deport is proportionate. The family can maintain contact by visits and indirect means. Although not ideal this is not dissimilar to the structured contact that has occurred over the last three years and is a direct consequence of his offending. 
xvi. SA will have extensive support in Pakistan. 
xvii. Having considered the criteria set out in Uner v Netherlands Imm AR 303; that on balance it is in the best interests of the children to live with the appellant despite his offending behaviour but not in Pakistan, but given his bbehaviour this family should be separated and maintain their links in the manner identified. [56 (1) to (8)]
8. Miss Mair challenged the determination on two main grounds. The first relates to SA’s claim for asylum. In the determination the Panel refers to the provisions of section 72 of the 2002 Act. This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection) but the Panel made no finding on whether the presumption is rebutted on the evidence. We would find it is not. Article 33(2) of the Refugee Convention provides that the benefit of Article 33(1): “May not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
9. There is no section 72 certificate in the refusal letter although in SSHD v TB  EWCA Civ 977 the Court of Appeal made it clear that the presumptions apply irrespective of whether the certificate is issued. Once the facts giving rise to the statutory presumptions have been established it would be an error of law for an immigration judge to fail to apply the presumption required by the section.
10. The Panel may not have though it necessary to consider the section 72 issue further as their its finding in relation to this element of the appeal is set out at paragraph 43 of the determination in the following terms:
43. We do not therefore accept that the Appellant has established it is reasonably likely he is a military deserter or would be perceived as such. We are satisfied that he has fabricated the claim to be in fear of the authorities and that he simply came here for work.
11. Miss Mair submitted this finding is flawed as the Panel failed to provide any or adequate reasons for their its finding the appellant fabricated the claim. It is alleged such a finding is conjecture. There is reference to the acceptance by the Panel of the fact the appellant was an army cadet and trained as an engineer in the army but did not take up a position and so it is plausible he is at risk as alleged.
12. Had the Panel only made a bare statement that the claim is fabricated, and no more, there may have been merit in this ground but they it did not. The core of the claim for asylum is based upon the appellants desire to avoid having to return to military service as he claims he became disillusioned with the Pakistan Army and the power it exercised and so absconded to work in Saudi Arabia in 1996 for two years after which he trained in Italy. The Panel noted the appellant returned to Pakistan in 1998 and again in 2007 and found it not reasonably likely he would have returned to Pakistan if he had the slightest concerns about his personal safety. They It noted the trip in 2007 was made using a passport issued by the authorities and found if there was any interest in him it is reasonably likely the authorities would have detained him on arrival. The appellant’s claim to have remained in hiding during the two visits was rejected.
13. We find it was open to the Panel to find that the appellant failed to substantiate his claim for asylum on the facts of this case. A refugee is defined in Regulation 2 of the Protection Regulations as a person who falls within Article 1A of the Genève Convention, namely a person who owing to a well founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Regulation 7 does not apply. The act of making an application for a passport to those he claims to be in fear of, in which he would have had to provide a number of relevant details including his address and location, and actually returning to the Pakistan for a family visit whilst claiming he is unable to return there due to a well founded fear of persecution is contradictory. We find adequate reasons were given to allow a reader of the determination to understand why the claim was rejected and that no material error of law is proved.
14. The second head of challenge is to the Panel’s findings in relation to Article 8 ECHR and in particular their its assessment of the best interests of the children. Miss Mair referred to the fact the Panel accepted the important role the appellant played in the lives of his children which was underpinned by the evidence of an independent social worker, Christine Brown.
15. We note that in paragraph 45 of the determination the Panel set out the correct test, namely that they are required to consider the best interests of the children as their its primary consideration. We reject the submission they it failed to do so as it was found that the best interests are that the children be permitted to live with the appellant and their mother which is in accordance with Christine Brown’s report and case law. The fact this finding is recorded in paragraph 56 (8) is irrelevant as this is the section of the determination in which the Panel draws the threads of their its deliberations together by considering the criteria set down in Uner v Netherlands. The claim in paragraph 20 of the renewed grounds seeking permission to appeal that at no point in the body of the determination does the Panel make an explicit finding that it would be in the children’s best interest for their father to remain in the UK is therefore factually incorrect.
16. The submissions are in effect a challenge to the weight given to the evidence from Christine Brown regarding the children’s best interests but weight is a matter for the Panel provided it is demonstrated they havit hase considered the evidence with the degree of care required in an appeal of this nature and adequate reasons have been given for the findings made – see SS (Sri Lanka) v Secretary of State for the Home Department  EWCA Civ 155. In this appeal we find they haveit has. Reasons do not have to be given for each and every element of the evidence – see Shizad (sufficiency of reasons: set aside)  UKUT 85 (IAC)
17. Paragraph 26 of the grounds contains a specific allegation that the Panel’s assessment of the evidence of Christine Brown is flawed. There is a reference to paragraph 5.1 of the report in which Mrs Brown states that the appellant’s removal would prove critical at this point in the children’s lives and would fail to keep the family intact. Miss Mair also relies upon a quote from the report in which it is stated that separation will be a profound and truly awful event from which they will never truly recover or be able to forget. The finding to the contrary by the Panel is challenged for lack of adequate reasoning.
18. We accept that in paragraph 50 of the determination the Panel does appear to reject Christine Brown’s opinion relating to the effect of the appellant being deported and his separation upon the children. They It bases its their conclusions not on the fact that the appellant is responsible for the cause of the phenomenon, as alleged, but that the children have already survived three years separation as a result of his criminal activities. Whilst this in itself may be insufficient reasoning for rejecting the consequences of deportation the Panel in the next line of paragraph 50 accepts the conclusions of Christine Brown in relation to the effect on the children. Grounds reliant on selective quotes from the determination do not present the complete picture.
19. Miss Mair also criticises the Panel for their its comments in paragraph 50 regarding the fact some children often have to cope with the trauma of loosing a parent and the availably of professional support to assist if needed. This is not a comparison with a situation of bereavement in a family although the loss of a parent for any reason can have the same affect on a child. The loss of a parent can happen by death, deportation, marital breakdown, abandonment or statutory intervention and removal. The finding the children can be helped through any grieving process by their remaining parent and professional support is a finding open to the Panel on the evidence. There are a number of testimonials in the bundle, [pages 166 to 181] including a letter of support from the family GP referring to the appellant’s wife’s depression and anxiety. We accept there is no evidence of current ongoing professional support and that any reference to the same may be factually inaccurate, but that does not mean it will not be available in the future if needed. The fact there is currently no intervention is, we find, because there are no concerns in relation to the physical or emotional development of the children, despite the appellant’s absence due to his conviction. We find it a sustainable finding that services are available to assist the children which can include counselling and work to enable them to understand the reason for their father’s removal and family support. We find it has not been proved that if such help is sought it will not be sufficient to help the children understand and adapt even if their sadness and distress at the loss of their father remains with them. It was also accepted by Miss Mair that if the family reached crisis point post-removal, support services would be available.
20. It was suggested to Miss Mair that the submissions being made were in effect that the needs of the children should have been treated by the Panel as the paramount factor and determinative of the outcome. This was denied and it submitted that the Panel should have assessed the best interests and then seen what countervailing facts were applicable.
21. In the recent case of SS (Nigeria) V SSHD  EWCA Civ 550, Laws LJ reviewed the case law relevant to these issues and at paragraph 55 of the judgment set out the correct approach when stating:
55. None of this, I apprehend, is inconsistent with established principle, and the approach I have outlined is well supported by the authorities concerning the decision-maker's margin of discretion. The leading Supreme Court cases, ZH and H(H), demonstrate that the interests of a child affected by a removal decision are a matter of substantial importance, and that the court must proceed on a proper understanding of the facts which illuminate those interests (though upon the latter point I would not with respect accept that the decision in Tinizaray should be regarded as establishing anything in the nature of general principle). At the same time H(H) shows the impact of a powerful public interest (in that case extradition) on what needs to be demonstrated for an Article 8 claim to prevail over it. Proportionality, the absence of an "exceptionality" rule, and the meaning of "a primary consideration" are all, when properly understood, consonant with the force to be attached in cases of the present kind to the two drivers of the decision-maker's margin of discretion: the policy's source and the policy's nature, and in particular to the great weight which the 2007 Act attributes to the deportation of foreign criminals.
22. We find the Panel were was aware of the substantial importance of the interests of the children, as shown by paragraph 45, and that they it understood the relevant facts they it needed to consider. Having done so they it arrived that the conclusion in paragraph 56 (8) that the best interests were for this family to be kept together. This is in accordance with the opinion of Christine Brown.
23. This is not, however, the determinative factor as the best interests of the children are one element of the balancing exercise, albeit one of substantial importance. Had the Panel allowed the appeal on the basis of the needs of the children without considering the respondents position that in its self would have been an error of law. They It did not. The Panel considered both parties’ positions and in paragraph 54 concludes that it is necessary ion a democratic society for the appellant to be deported to prevent crime and disorder. The Panel finds there is a propensity to re-offend for the reasons given which is challenged before us on the basis the appellant was assessed as a low risk of re-offending in the OASys report dated 12th September 2011. We note in that report the fact the appellant continued to minimise his role in the offences [R6.1 page 91 of A’s bundle] and that the risk of re-offending is not determinative of the case.
24. Miss Mair quite properly accepted that the case of Masih (deportation – public interest – basic principles) Pakistan  UKUT 00046(IAC) Masih was relevant to this matter. In Masih Masih (deportation – public interest – basic principles) Pakistan  UKUT 00046(IAC) the Tribunal said that so long as account is taken of the following basic principles, there is at present no need for further citation of authority on the public interest side of the balancing exercise. The following basic principles can be derived from the present case law concerning the issue of the public interest in relation to the deportation of foreign criminals:
(i) In a case of automatic deportation, full account must be taken of the 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.
(ii) Deportation of foreign criminals expresses society’s condemnation of serious criminal activity and promotes public confidence in the treatment of foreign citizens who have committed them.
(iii) The starting-point for assessing the facts of the offence of which an individual has been committed, and their effect on others, and on the public as a whole, must be the view taken by the sentencing judge.
(iv) The appeal has to be dealt with on the basis of the situation at the date of the hearing.
(v) Full account should also be taken of any developments since sentence was passed, for example the result of any disciplinary adjudications in prison or detention, or any OASys or licence report.
25. In Boultif v Switzerland  ECHR 54273, as confirmed by Uner v the Netherlands  Imm AR 303, the Court said that in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued, the following criteria had to be considered:
(i) The nature and the seriousness of the offence committed by the Appellant;
(ii) The length of the Appellant’s stay in the country from which he or she was to be expelled;
(iii) The time that had elapsed since the offence was committed and the claimant’s conduct during that period.
(iv) The nationalities of the various parties concerned;
(v) The Appellant’s family situation, such as length of marriage and other factors expressing the effectiveness of the Appellant’s family life;
(vi) Whether the spouse knew about the offence at the time he or she entered into the family relationship;
(vii) Whether there are children in the marriage and if so their ages;
(viii)The seriousness and the difficulties which the Spouse is likely to encounter in the country of the Appellant’s origin;
(ix) The best interests and well being of any children of the Appellant; and in particular the seriousness of any difficulties that they would be likely to encounter in the country to which the Appellant would be expelled;
(x) The solidity of social, cultural and family ties with the host country and with the country of destination.
26. These elements were properly considered by the Panel.
27. In SS (Nigeria), at paragraph 53 and 54, it is stated:
53. The importance of the moral and political character of the policy shows that the two drivers of the decision-maker's margin of discretion – the policy's nature and its source – operate in tandem. An Act of Parliament is anyway to be specially respected; but all the more so when it declares policy of this kind. In this case, the policy is general and overarching. It is circumscribed only by five carefully drawn exceptions, of which the first is violation of a person's Convention/Refugee Convention rights. (The others concern minors, EU cases, extradition cases and cases involving persons subject to orders under mental health legislation.) Clearly, Parliament in the 2007 Act has attached very great weight to the policy as a well justified imperative for the protection of the public and to reflect the public's proper condemnation of serious wrongdoers. Sedley LJ was with respect right to state that "[in the case of a 'foreign criminal' the Act places in the proportionality scales a markedly greater weight than in other cases".
54. I would draw particular attention to the provision contained in s.33(7): "section 32(4) applies despite the application of Exception 1...", that is to say, a foreign criminal's deportation remains conducive to the public good notwithstanding his successful reliance on Article 8. I said at paragraph 46 that while the authorities demonstrate that there is no rule of exceptionality for Article 8, they also clearly show that the more pressing the public interest in removal or deportation, the stronger must be the claim under Article 8 if it is to prevail. The pressing nature of the public interest here is vividly informed by the fact that by Parliament's express declaration the public interest is injured if the criminal's deportation is not effected. Such a result could in my judgment only be justified by a very strong claim indeed.
28. The appellant’s involvement in the commercial production of cannabis for economic gain, as found by the sentencing judge, is a very serous offence. His deportation is in the public interests and for the public good as declared by Parliament in the 2007 Act. Notwithstanding the assessment of there being a low risk of reoffending and the effect upon the family flowing from separation from the appellant, it is within the range of permissible findings available to the Panel to find that the weight to be given to the respondent’s case tipped the proportionality assessment in favour of deportation. The grounds are in effect a disagreement with this conclusion based upon an argument that greater weight should have been given to the interests of the children. The outcome of a properly conducted proportionality assessment, we which we find this is, can only be challenged on public law grounds. We find no such grounds proved in this case sufficient to allow us to interfere with the decision.
29. There is no material error of law in the First-tier Tribunal Judge’s decision. The determination shall stand.
30. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
We continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).
Upper Tribunal Judge Hanson
Dated the 3rd June 2013