Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/00514/2014

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 18 October 2016
On 07 November 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

C A
(ANONYMITY ORDER MADE)
Appellant
and

secretary of state for the home department
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr Harrison, Presenting Officer

DECISION AND REASONS
1. I have made an anonymity order in respect of the appellant in this case. That is solely because of the danger of identifying children who are the subject of Family Court Orders, and thus to protect the children. Pursuant to section 97 (2) of the Children Act 1989 it is an offence to publish any material it is intended or likely to identify a child as being involved in any proceedings before the Court.
2. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Cope, promulgated on 3 July 2014, allowing Ms CA's appeal against the decision of the respondent made on 22 January 2014 to remove her from the United Kingdom pursuant to reg. 19 (b) of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"). The appeal against that decision is under Reg. 26 of the EEA Regulations.
3. The appellant is a citizen of Portugal who while living there entered into a relationship with FF, also a citizen of Portugal. FF had two sons from a previous relationship; the couple have a child born in 2005. In 2006 the family came to the United Kingdom to look for work which they found. Between 2007 and 2012, the appellant and FF were abusive, psychologically and physically to the two boys, who, along with the younger child, were taken into care in 2012. They wish to have nothing to do with the either FF or the appellant.
4. On 13 June 2013, the appellant and FF were sentenced to two years and three years' imprisonment respectively for offences of child cruelty. It was on account of those convictions that the respondent took steps to deport both the appellant and FF. It appears that FF has now been deported from the United Kingdom.
5. Prior to her imprisonment, the appellant's relationship with FF broke down, and she began a relationship with SH, who also has children from his marriage which had broken down. The relationship with SH continued despite the appellant's imprisonment.
6. The appellant's case was that she had acquired the permanent right of residence, and that she had not lost it despite being imprisoned. She submits that her removal was not justified under the EEA Regulations.
7. The respondent's case is that there are serious grounds of public policy, the protection of children, which justify the appellant's removal which, it is said is proportionate.
8. The judge heard oral evidence from the appellant and SH. He found that: -
(i) the best interests of the children of the relationship between the appellant and FF had been settled by the family courts, none of the children expressing any desire to have contact with them, the youngest expressing that no contact with the appellant was wanted [22] - [25];
(ii) it was not in dispute that the appellant had acquired permanent residence [33], that the decision to remove was based exclusively on the personal conduct of the appellant [37]; that the interest of society to be protected was the prevention of the mistreatment of children [39];
(iii) the convictions related to abuse of the two older children, there being no charged in respect of the youngest, contrary to the respondent's assumption in the refusal letter [50];
(iv) the offending behaviour was very serious indeed [54];
(v) the initial pre-sentence report concluded that the appellant posed a risk of harm to children, specific to those in her care, but as there were none at that point, the risk was not imminent [61]; that the OASys report showed the likelihood of reconviction is low, as was the risk of serious harm to others [62]; but, there was no proper basis for the later conclusion in a NOMS report that the appellant proposes medium risk of harm [63] - [65];
(vi) there was no generalised risk from the appellant to children as a whole [72], the pattern of offending being clear and restricted [73] - [76]; that it was unlikely she would at 43 have further children of her own [77]; that the risk of re offending was reduced because FF had been removed from the United Kingdom [83]; that there was no risk to the children of the family as they no longer had contact with her [84] - [85];
(vii) although SH's children had visited him, at his house, they would not do so if the appellant were there [93]; and, albeit that he did not appear to have knowledge of the appellant's offending behaviours [96] - [97]; there was no indication [100] - [102] that the probation service did see the appellant cohabiting with SH would create a risk to children;
(viii) taking into account a change in the appellant's attitude, and the changed circumstances, the appellant did not pose a present as serous risk to either her children, or those of SH; or, other children [117] - [123]; [127].
9. The respondent sought permission to appeal on the grounds that the judge had erred:
(i) In failing to give adequate reasons for concluding that there was no risk to SH's children, there being no assessment by social services as to the proposed arrangements, and in particular not taking into account that the appellant had not told SH of the nature of her offending, indicating that she may not be reformed and thus does pose a risk; and,
(ii) In not taking into account the absence of evidence that social services were even aware that SH might cohabit with the appellant, yet finding [125] that they would put measures in place to protect SH's children.
10. On 7 November 2014, Upper Tribunal Judge C Lane granted permission, stating:
(i) The First- tier Tribunal has made findings as regards the future care arrangements of young children on a basis where the involvement of Cumbria Social services remains unclear (see the grounds to Upper Tribunal) and the determination at [101] and [125]. Given the nature of the appellant's offending and the fact that the welfare of children is possible at issue, I am satisfied that the Upper Tribunal should consider the matter further. All grounds may be argued.
The hearing on 18 October 2016
11. When the matter came before me there was no appearance by the appellant. Enquiries made to the appellant's former solicitors revealed that they had not had any contact with her for some two years. I was, however, satisfied that due notice of the time, date and venue of the appeal had been sent to the address given by the appellant. In the circumstances, despite the delay in these proceedings, I considered that it was in the interests of justice to proceed to determine the appeal.
12. The appellant has made no statement pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008, or provided any other basis of challenge to the respondent's grounds.
Did the decision of the First-tier Tribunal involve the making of an error of law?
13. For the reasons set out below, I consider that it did.
14. It is, I consider, of significant concern that the judge did not, in assessing the appellant's evidence, take into account that SH had, despite having been in a relationship with the appellant since prior to her conviction, little knowledge of the circumstances of her conviction [96]. These, as set out in the sentencing remarks are as follows:
"? you have both pleaded guilty to offences of child cruelty, the offences concern J and D of whom you, FF, are the father and you, CA, were their stepmother, in your case, FF you have pleaded guilty to seven offences, covering a period of almost five years, from July, 2007 to February, 2012 , In July, 2007 J was 11 years of age and D was nine, you regularly hit them with a belt and with a walking stick and you slapped them with your hands, you had brought your sons to this country after they were abandoned by their mother in Portugal, they were in new and unfamiliar surroundings, they naturally looked to you for security, for love and for protection, you, sadly, repaid that trust, in a way that no father should ever treat a child, you say that you mistreated them under pressure from CA, by her threats to leave you, unless you hit and disciplined them, either you lacked the fortitude to withstand the pressure on you, or you put your relationship with your partner above the welfare of your children.
CA, you have pleaded guilty to offences, in respect of both boys, of being instrumental in the children being assaulted by FF, in a way likely to cause them unnecessary suffering or injury to health, in relation to J, to having slapped him, as part of a course of conduct, you got (I am quite satisfied from the evidence) FF to punish both of them, this was a sustained course of conduct by the two of you, these children spent their formative years in a loveless environment. Finally, a neighbour spoke to Social Services , she was prompted to do so, when her son reported to her 'that J had said, "I wish I dead, because nobody wants me" , she had witnessed a number of Incidents, she had seen you, CA, slap J across the face, leaving the imprint of your hand on his cheek, you then got, on that occasion, Fernando Ferreira to punish J and the neighbours had to intervene to stop him striking J with a walking stick, on another occasion she saw you, CA, tear up J's homework in front of him, calling him an idiot and FF then removed his belt and you struck J a number of times on the backside with that belt.
In addition to the immediate physical harm, the emotional harm that must have been caused to both boys is incalculable, they are now teenagers, on the verge of adulthood, they must live their lives in the knowledge of how they were treated, as young children, by the ones, who ought to have offered them warmth and security. Simply put, it is plain that these two boys were unwanted and unloved, just how deep and lasting the emotional scars will be, only time can tell, but one thing is sure, they will never forget how the two of you treated them.
FF, it is apparent, from the pre-sentence report, that you have not recognised the true degree of your responsibility and that you have sought to minimise it and to blame others. CA, you too have sought to play down your responsibility for the way the two boys were, treated, but I find it revealing that, to the author of the pre-sentence report, you openly admitted that you saw them as having ruined your life, I have little doubt that you resented their presence in the family and that this motivated you to encourage your partner to abuse them.
I take into account in mitigation that you were both brought up in families where physical chastisement took place, it is a sad fact that the way in which children are treated in their formative years may affect their own parenting style, that is part of the damage that you may have inflicted on J, on D and also on their half-sister B, who would have witnessed what took place. I also take into account that neither of you have any previous convictions and that you pleaded guilty, neither of you though pleaded guilty at the first opportunity, in your case, FF, you pleaded guilty only about three weeks before your trial was due to take place, by that stage the boys would have been anticipating that they were going to have to come to court to relive their experiences and potentially to be challenged about the truthfulness of their accounts. In your case, CA, although you pleaded guilty to counts 12 and 13 at an early stage, you continued to deny assaulting J until the trial was imminent."
15. Given that SH had described the appellant in his letter in support as the kindest, nicest most loving person that he has met [95], there is insufficient reason given by the judge for accepting his evidence about what mechanisms had been put in place to protect his children, not least given the findings by the judge as to the extent CA had manipulated her partner into abusing his own children.
16. Further, that the appellant had clearly not been candid with her partner of some years is not properly taken into account in the assessment of her credibility. Given a clear indication of a propensity to manipulate in the case of FF and the failure to be candid with SH, which post-dates her conviction, the assessment of her apparent acceptance of responsibility [110] - [111] is flawed. While the judge does at [110] consider that the appellant may have been untruthful to gain an advantage, what is missing from the judge's analysis is any appreciation that she had everything to gain from accepting responsibility when questioned by probation staff, yet she acted entirely differently with her partner. That is material, given that it flows into the analysis as to whether her attitude has changed - see [113] - [114] in particular - and the assessment of the threat she poses [115].
17. There is also no appreciation of the period over which the appellant carried abused the children in her care. This was not a one-off incident; it was systematic and continued violence over a period of five years, driven by it appears the appellant's resentment of her step-children.
18. In the circumstances, I am satisfied that the judge's reasoning that the appellant did not constitute a risk is flawed and unsustainable. I therefore set his decision aside for it to be remade.
Remaking the decision.
The Law
19. The respondent's power to deport an EEA national, and the matters that must be taken into account, are set out in the EEA regulations:
'19. (1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21.
(1A) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 of that person is subject to a deportation or exclusion order
(1B) If the Secretary of State considers that the exclusion of an EEA national or the family member of an EEA national is justified on the grounds of public policy, public security or public health in accordance with regulation 21 the Secretary of State may make an order for the purpose of these Regulations prohibiting that person from entering the United Kingdom
?
(3) Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom under these Regulations may be removed if-
(a) that person does not have or ceases to have a right to reside under these Regulations; or
(b) the Secretary of State has decided that the person's removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.
?
21. (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 permanent right of residence under regulation 15 except on serious grounds of public policy or 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 ?
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, 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 concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(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.
(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person 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 the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin.'
20. The appellant did not participate in the remaking. There is no up to date material in respect of her current circumstances, nor is it even clear that she is living in the United Kingdom.
21. I have no doubt that the appellant's crimes against children in her care were very serious, involving as they did, emotional and physical harm, the former being likely to be far longer lasting. These offences, appalling in themselves, are in my view aggravated by the fact that these children were more vulnerable and in need of parental love and affection as they had been abandoned by their own mother. The remark that she considered these young, vulnerable children as having ruined her life, displays a striking degree of self-absorption and a marked inability to look beyond her own self- interest. It is instructive also that, as Judge Cope noted [82], the appellant had initially sought to say it was she who had been coerced into abusing the children, when the sentencing judge found that it was she who had encouraged FF.
22. I have considered carefully the material from the Probation Service, but find nothing in therein that shows genuine remorse, or indeed, any real attempt to identify with her victims, or the long-lasting if not permanent damage she has caused them. There is no real evidence that she has developed any real insight to the hurt she has caused to children, hurt motivated in a large part by her own selfishness and achieved through the manipulation of another.
23. There is I find, an absence of any real remorse on the part of the appellant. It is remarkable, and instructive of her true feelings, that much of her statements are about the consequences of her abusing children in her care impacting on her new relationship with SH, not on the harm she has caused. Her own daughter, now in care, wants nothing to do with her; this does not appear to be of any concern whatsoever in CA's statement of 9 May 2014.
24. I accept that the risk the appellant presents has been considered as in some respects low, yet she is still within the terms of reference for MAPPA and is said to be of medium risk to children. She is barred from working with children, a strong other indicator of the risk she poses. While it might be said that this removes risk, such a submission ignores the fact that such measures are not taken in respect of the general public, only against those identified as posing an unacceptable risk to children. Further the NOMS assessment and indeed the report of Ms Robertson of May 2014 do indicate a medium risk of harm to a child in a relationship with her; that is a sustainable finding, and is not inconsistent with a lower general risk. In the circumstances, I am satisfied that she does represent a medium risk of harm to some children.
25. There are, I accept, character references but these do not properly engage with the appellant's offences, or address the fact that she is guilty of abusing children over a 5-year period. That, given the appellant's own lack of insight into her behaviours, is perhaps unsurprising.
26. Taking these factors together, with the very telling failure to be candid with SH, I am satisfied that in reality, the appellant is a manipulative and unremorseful offender who abused children in her care over a five-year period. I am not satisfied that she has in any real way accepted responsibility for this, showing a callous disregard for her victims, and thus, notwithstanding the probation reports which are in a sense mechanistic, I am satisfied that she does present a sufficiently serious threat to children, and thus reg. 21 (5) (c) is met. Further, I am satisfied in this case, her deportation is justified on serious grounds of public policy, that is, the protection of children.
27. I am satisfied that, in the circumstances, the respondent has shown that her decision to deport the appellant is based exclusively on her personal conduct, not reliant on general matters, and is not based exclusively on her criminal offences.
28. Turning then to the factors set out in regs. 21 (6), there is no recent evidence of the appellant's circumstances. There is no indication that her relationship with her partner, SH, subsists, or as to whether she is working or not. I am satisfied that, on the basis of the material before me, that taking into account how long the appellant has lived her, her deportation is, given the seriousness of the threat to the public which she presents, that her removal is entirely proportionate. There is no subsisting family life between the appellant and her child, or indeed her step-children.
29. In the circumstances, taking all of these factors into account, and bearing in mind that what is proposed is an interference with rights of free movement, I am satisfied that balancing the risk that the appellant pose as a result of her personal conduct and activities, that the decision to remove her is proportionate and in accordance with Regulations 21(5) and 21(6) of the EEA Regulations.
30. I am not satisfied either, in the light of these findings, that the appellant's deportation is, having had regard to section 117C of the Nationality, Immigration and Asylum Act 2002, is a breach of article 8. There is insufficient evidence that she meets any of the exceptions set out in paragraphs 399 or 399A of the Immigration Rules, nor that there is any other basis on which the very strong interest in deporting the appellant, who is a foreign criminal, could be outweighed.
31. Accordingly, I remake the decision by dismissing the appeal an all grounds.
SUMMARY OF CONCLUSIONS
1 The decision of the First-tier Tribunal involved the making of an error of law. I set it aside.
2 I remake the decision by dismissing the appeal on all grounds.
3 The parties are reminded of the anonymity order which is in place to protect the children of the appellants and to prevent them from being identified.

Signed Date: 3 November 2016

Upper Tribunal Judge Rintoul