DA/00621/2012

• Status of case: Unreported
• Promulgation date: 18 Jun 2013
• Last updated on: 26 Nov 2013

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00621/2012


THE IMMIGRATION ACTS

Heard at Stoke
Determination Promulgated
on 9th May 2013
On 18th June 2013

Before

UPPER TRIBUNAL JUDGE HANSON

Between

Mr KEVON ANTHONY GORDON
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms Mair instructed by Paragon Law.
For the Respondent: Mrs Heath Senior Home Office Presenting Officer.

DETERMINATION AND REASONS

1. This is an appeal against a determination of a panel of the First-tier Tribunal (hereinafter referred to as ‘the Panel’) composed of First-tier Tribunal Judge TRP Hollingworth and Mrs L Schmitt JP, who dismissed the appellant’s appeal against the order for his deportation made pursuant to section 32(5) UK Borders Act 2007.

2. The appellant, a citizen of Jamaica, was born on the 9th December 1990. His immigration history is set out in paragraph 3 of the Panel’s determination. He entered the UK on 25th November 2008 and has remained here since. He was arrested on 2nd March 2010 for possession of two types of Class A drugs with intent to supply. He was sentenced to two years imprisonment at Nottingham Crown Court. There was no appeal against conviction or sentence.

3. The appellant relied upon one of the exceptions contained in the Borders Act, namely that his removal from the UK will breach his rights under Article 8 ECHR.

4. The key findings of the Panel can be summarised as follows:

i. The adjournment request made at the hearing was refused. Both sides had had ample time to prepare and it was not in the interests of justice to adjourn. [10 – 13]

ii. The appellant was not found to be credible or reliable. [19]

iii. The appellant’s evidence regarding two apparently parallel relationships with Tanya Brown and Alicia Woodhouse was evasive and unconvincing. [20]

iii. The determination of IJ Shanahan was the staring point in the appeal. The appellant and those around him deliberately withheld information from that judge that he had been arrested for a serious drug related offence only eight days before the hearing. His counsel conceded this was correct. [21] Had the judge known it may have had some bearing on the decision reached. [23]

iv. The appellant has established a family life in the UK. He is in a relationship with the witness who gave evidence. They have a child together born on 16th July 2011. [25]

v. The respondent’s decision will have sufficiently grave consequences so as to engage Article 8. [26] The decision is in accordance with the law and the issue is one of proportionality. [27] and [28].

vi. There is nothing which assists the appellant in the current version of the Immigration Rules. He has been in the UK for just over four years. His sentence was of more than twelve months but less than four years, there is nothing exceptional about his position. There is a primary carer in the UK who can assume parental responsibility in the event of his removal. [29 – 30]

vii. Had the original judge in March 2010 been aware of his arrest only days before the hearing, the decision reached on that occasion may have been different. The appellant would have been aware of the importance of that hearing but that did not prevent him becoming involved in matters which led to a substantial prison sentence. [33]

viii. The appellant has been untruthful or willing to deceive his witness and the mother of his child, Miss Woodhouse. [35]

ix. The impression created by the appellant that he is in a loving relationship with Miss Woodhouse is flawed. [36 – 46]

x. The submission that whatever may have happened in the past that is ‘water under the bridge’ as the couple have a child, the appellant has been granted bail, and released into the community, was rejected. [49]

xi. The appellant’s propensity to be untruthful when it suits him assumes considerable weight in the Article 8 exercise. [50]

xii. There is a strong argument the appellant was deceiving Miss Woodhouse and seeing a second girlfriend during his incarceration. [51]

xiii. The appellant’s evidence regarding the circumstances of his guilty plea is unreliable [52] and another example of his propensity to manipulate and distort the evidence. [54]

xiv. In assessing the appellant’s relationship and the quality of that relationship with the chid, the parties have never lived together. [55]

xv. The appellant looks after their daughter A two to three days a week whilst Miss Woodhouse, the mother, works. A has also stayed over some nights at the house he shares with his mother in Nottingham as a result of his bail conditions. [56] Miss Woodhouse lives in Derby.

xvi. There is no clear picture of what the living or domestic arrangements are. [57] Neither is there any indication of the couple’s intention to live together permanently. [58] Neither witness statement mentions marriage. [59] Although one letter from Miss Woodhouse refers to marriage there was little to support such a commitment either through co-habitation or consistent support. [60]

xvii. The Panel accept the child A is the appellant’s. [62] For the first six months of the child’s life he was in prison. [63] He shares responsibility for A when she stays at his mother’s house. The claim the appellant has greater de facto control over the child as Miss Woodhouse works is not accepted. It is likely that Miss Woodhouse has day to day control of the child who is fifteen months old at the date of the hearing. [65]

xviii. The extent of the relationship between the appellant and child is nine months in total. [66]

ixx. It cannot be said the appellant is the primary carer. Miss Woodhouse also relies upon help from her own extended family. [67] It was found unfortunate there were no witness statements from her extended family and nor did they attend the hearing. [68]

xx. At all material times the child will remain with its natural mother, supported as necessary by other family members. There is attachment to both sets of grandparents which should be encouraged. [71] Removal of the appellant will not require the child to leave the UK. [72]

xxi The child’s best interests will be perfectly adequately covered by the present arrangements which amount to her being with her natural mother and her mother’s extended family. [73]

xxii. The deportation will not necessarily result in cessation of the relationship as Miss Woodhouse’s mother has a boyfriend of her own who normally resides in Jamaica. They maintain a relationship indirectly although it is recognised this is not the same situation with a very young child. [74]

xxiii. The appellant has now been charged with a new offence of shoplifting. [76] He was found in a compromising position with another female partner, not Miss Woodhouse and elected trial by Jury. [77]

xxiv. Considering his private life – the appellant has been in the UK for a short period of time, having arrived in 2008. He spent his formative years in Jamaica. It is not suggested he will have major difficulties if returned. He may aspire to employment but otherwise the appellant’s private life is unremarkable. [78]

xxv. The appellant allowed himself to become involved in extremely serious offences on 2nd March 2010. His motivation appeared to be financially driven. He pleaded guilty to two charges involving heroin and cocaine having pleaded not guilty until the day of the trial. [80]

xxvi. The appellant had only been in the UK for little over a year when he committed these offences involving the supply of drugs [81]. He has no previous convictions [82]. It is accepted he has undertaken courses in prison [83].

xxvii. The appellant has been assessed as a low rate of re-offending although there is no full copy of the OASys report. The risk of re-offending is not determinative. [85]

xxviii. The appellant may be prevented from re-entering the UK for as much as ten years. [86]

xxiv. Having balanced the competing interests the decision is proportionate and in favour of deportation. [87]

5. Permission to appeal was granted by another judge of the First-tier Tribunal on 21st November 2012. The appeal is opposed by the Secretary of State in her Rule 24 Reply dated 6th December 2012.

Discussion

6. The more recent offence referred to by the Panel in paragraph 77 has now been resolved in the appellant’s favour without trial.

7. The first challenge is to the refusal of the Panel to adjourn. Miss Mair submitted that a request had originally been made in writing to allow the appellant to obtain a report from an Independent Social Worker. This was refused. The application was renewed at the hearing accompanied by a letter from Christine Brown, the intended expert.

8. When asked by me why it was necessary for such a report to be commissioned Miss Mair stated it was because a social worker was needed to provide all the details. There would not have been a disproportionate delay and the Panel noted in paragraph 57 that they did not have a particularly clear picture of the living arrangements. It was submitted that such a report would have provided these details.

9. When asked why the family did not attend to provide such evidence Miss Mair stated they had mixed feelings about the relationship and had been asked to attend the hearing but did not do so. The expert could also deal with the long terms prospects for the child.

10. The Tribunal’s record of proceedings confirms that a written request was made for an adjournment to obtain the report on 2nd October 2012, the day before the pre-hearing review. The letter sought an adjournment until the third week in November 2012 when, it was stated, the report would be due. The request was considered at the hearing by Designated Judge of the First-tier Tribunal Coates and refused as he was not satisfied that the appeal could not be justly determined without a report from a social worker and, in any event, as the hearing was not until 23rd October, there was further time for it to be prepared.

11. The application was not renewed until the hearing when Judge Hollingworth has noted Miss Mair referred to a letter from Christine Brown and renewed the application. It was stated the report had not been prepared in time. The report is to assess the strength of family life. It was accepted the appellant was aware of the relevant dates. The application was opposed and refused, as stated in the grounds, as it was found both parties had had ample time to prepare and that it was not in the interests of justice given this is a very young child and there are witness statements from interested parties.

12. I accept that the key question to be asked when an application of this nature is made is whether it is fair in all the circumstances to refuse it. In WT [2004] UKIAT 00176 (Ouseley) the Tribunal said that it was not an error of law to refuse an adjournment requested on the basis of fresh evidence, which had yet to be obtained, when it was not clear how such evidence would make a material difference to the evidence already before an Adjudicator. In that case, while the fresh evidence, in the form of a report by the Medical Foundation, could not have been obtained with reasonable diligence before the Adjudicator’s hearing, the substance of that evidence could have been obtained from a GP and could have been raised by the appellant himself in time for the hearing. The Tribunal said that, although the Medical Foundation had a particular expertise, it was not unique. A report by them would consist of a description of physical symptoms, which could be provided by others, and an assessment of the consistency of those signs or symptoms with what the appellant described. However, consistency was not the same as proof.

13. Before any court or tribunal expert evidence should be restricted to that which is reasonably required to resolve the proceedings, i.e. what is necessary. Although there is no provision requiring permission to be given by the Tribunal to adduce expert evidence, at this point in time, in other jurisdictions such as the family courts considering public law children cases there is. In this appeal it was not an application for permission the Panel were considering but an application for the proceedings to be delayed to allow additional evidence to be obtained.

14. In the absence of a specific definition for a term in any regulations or statutory provisions, words must be interpreted by reference to their ordinary meaning. The online Oxford English dictionary defines necessary as something essential, that needs to be done. In family law, in the case of Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, the Court of Appeal said necessary has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.”

15. Designated Judge Coates did not consider a report from a social worker was necessary to allow the Tribunal to determine the relevant issue which was whether the appellant is able to rely upon the Article 8 exception to be found in the UK Borders Act to avoid deportation. On the information before Judge Coates this decision was correct as nothing in the papers establishes that such a report is necessary. The Panel’s Record of Proceedings shows the following:



Preliminary Matters

Adjournment Application
Counsel

We have received a letter from an independent social worker. It is to assess the strength of family life. She has not been able to complete the report in time. We would like an adjournment. The parents have done their best. Accept they wd have been aware of the relevant date. But seek an adjournment on that basis.

Mr Bates

The resp objects to the application. Tribunal have already considered the point on 2.10.12. The report can only provide you with general matters & the separation of a child from its parents. You have ample experience to deal with the aspects raised.

Ruling

We refuse the application. Both sides have had ample time to deal with the preparation. This issue was raised and refused at the CMR on 3/10. No attempt to re argue it beforehand. Not in the interests of justice to adjourn given this is a very young child. And there are w/s from interested parties.

16. The refusal was made by the Panel exercising their discretionary case management powers. The overriding objective is to be found in rule 4 of the Asylum and Immigration Tribunal (Procedure) Rules 2005, and the provisions relating to adjournments in rule 21. Rule 21 (b) imposes an obligation upon an applicant to show good reasons why an adjournment is necessary which it was found the appellant had not satisfied in this appeal. Rule 21 (3) states that the Tribunal must not adjourn a hearing in order to allow a party more time to produce evidence unless satisfied (a) the evidence relates to a matter of dispute in the appeal and (b) it would be unjust to determine the appeal without permitting the party a further opportunity to produce the evidence and (c) where the party failed to comply with directions for the production of the evidence, he has provided a satisfactory explanation for that failure.

17. I find these provisions were considered by the Panel. There is reference to the issue of fairness and also the availability of evidence from other sources relevant to the issue. There are also reported determinations by the President of the Upper Tribunal and others regarding the best interests of a child which it is accepted are, in the absence of countervailing factors, to be brought up in a stable home with a loving and caring mother and father.
 
18. Facts specific to this case should have been included in statements and oral evidence if the appellant wanted the Panel to consider them. The Panel was tasked to primarily act on the evidence in the case, which they did. The claim that the findings made demonstrate the decision to refuse the adjournment was incorrect, as the Panel found in paragraph 57 that they did not have a particularly clear picture of the living arrangements, is a submission made with the benefit of hindsight and does not show the decision made when it was, is wrong. The reason the Panel did not have a clear picture was the evidence from the appellant and others was simply not good enough to prove what was being alleged.

19. I find no error proved in relation to the refusal of the adjournment request on the facts of this appeal.

20. The second ground of challenge alleges the Panel’s findings on family life are flawed, alleging undue weight was placed upon the fact the appellant and Miss Woodhouse have not lived together and substantially underestimated the amount of time the family spend together and their future intentions.

21. The Panel found that the appellant and Miss Woodhouse have not co-habited which is factually correct. The pregnancy was accidental and the Panel noted the appellant’s lack of honesty and involvement with other women as summarised above.

22. In Berrehab v The Netherlands [1989] 11 EHRR 322 the European Court said that “the concept of family life embraces, even where there is no co-habitation, the tie between a parent and his or her child regardless of whether or not the latter is legitimate”. There is, therefore, clearly family life recognised by Article 8 between the appellant and A.

23. In relation to the appellant and Miss Woodhouse, the existence or non existence of family life for the purposes of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties. In Kroon v Netherlands [1994] ECHR 35 the Court accepted that family life could include relationships between unmarried adults who had made a sufficient commitment. More recently, in R (on the application of Kussin) v SSHD [2009] EWHC 358, a JR case in which there was a lack of substantive evidence to show that an engaged couple had lived together for eight yeas as claimed, Blake J pointed out (for the purposes of the unmarried partner’s policy) that the nature of their relationship was not on the same basis as husband and wife which would have required the relationship to have matured to the point of mutual commitment to a permanent relationship. Mere starting of a relationship, mere periods of cohabitation and a mere relationship with an individual did not equate to the status of husband and wife. In such circumstances, Blake J thought that there were no reasonable prospects that an Immigration Judge would allow the appeal on Article 8 grounds, given that the parties had no dependent children and they had developed and maintained their relationship at a time when the applicant‘s immigration status was unstable and insecure.

24. In Balogun v United Kingdom (Application no. 60286/09) ECtHR (Fourth Section), reported in May 2012, the ECtHR upheld the view of the Tribunal that the relationship with a girlfriend was not sufficiently settled, serious or long-term to amount to family life (para 47).

25. It is submitted that the reason the parties do not co-habit is due to the appellant’s bail conditions which require him to live in Nottingham whereas Miss Woodhouse lives in Derby. If there is a settled intention to live as man and wife with clear evidence of a sufficiently settled, serious, and long term relationship, and this is only prevented by extraneous factors, it could be said family life recognised by Article 8 has come into existence. Whatever the intention of Miss Woodhouse, however, the Panel clearly did not believe the appellant had such an intention. There is reference to other women he was seeing and being found in the company of, and in paragraph 58 and 59 the Panel note the lack of evidence regarding this issue. I accept Miss Woodhouse may have given evidence to this effect but unless the desire is mutual one parties view is not decisive. The old adage ‘it takes two to make a marriage but one to break it’ may be relevant here.

26. In any event, even if there is no family life recognised by Article 8 the friendships/relationship they do have will be an important element of their private lives recognised by Article 8. As stated in AA v United Kingdom (Application no. 8000/08) ECtHR (Fourth Section) Strasbourg jurisprudence tended to suggest that the Applicant, a young adult who resided with his mother and had not yet founded a family of his own, could be regarded as having “family life” for the purposes of Article 8(1). However, it was not necessary to decide this. As Article 8 protected the right to establish and develop relationships with other human beings and could embrace aspects of an individual’s social identity, it had to be accepted that the totality of social ties between settled migrants and the community in which they were living constituted part of the concept of private life within the meaning of Article 8. In practice the factors to be examined when assessing proportionality of the deportation measure were the same regardless of whether family or private life was engaged (paras 46 – 49).

27. In relation to the weight to be given to the appellant’s private life it is noted he entered the UK in 2008 and that Miss Woodhouse knew of his status. European Jurisprudence states that little weight need be given to a relationship developed when one party is aware of the adverse immigration status of the other. In Nunez v Norway (Application No. 55597/09) ECtHR (Fourth Section) the ECtHR said that an important consideration was whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. Where this was the case, the removal of a non-national family member would be incompatible with Article 8 only in exceptional circumstances. In Y v Russia (Application No 20113/7) ECtHR (First Section) the ECtHR appeared to suggest that, where family life was created at a time when the persons involved were aware that the immigration status of one of them was precarious, then removal of the non national family member would only be incompatible with Article 8 in exceptional circumstances.

28. A finding the relationship between the appellant and Miss Woodhouse did not make the decision disproportionate is within the range of findings the Panel were entitled to make on the evidence.

29. The third ground of challenge is to the Panel’s assessment of the best interest of the child. The findings Miss Woodhouse’s family will be able to assist, in paragraph 71, is said to be flawed as there was no evidence of this and the evidence was that at all times either the appellant or Miss Woodhouse cares for A. I accept the factual matrix is that the appellant lives with his mother at her house in Nottingham as part of his bail conditions and that he cares for his daughter while Miss Woodhouse is at work. There is no evidence the appellant’s mother has no role in caring for the child in such circumstances or that she or Miss Woodhouse’s family, who came to the Upper Tribunal hearing and to support her, would effectively abandon the child if the appellant was removed. In any event this is not material as it has not been proved Miss Woodhouse is unable to adequately care for the child and meet her needs if the appellant was removed, even if this meant she was unable to work.

30. I accept the appellant is known to his daughter but there is no error proved in the finding Miss Woodhouse is the primary parent with care on the facts. I find she is the primary carer with assistance from the appellant, even if such care is in reality shared in terms of the time A spends with each parent. I accept, as per the case law and established thinking, that A’s best interests are to be brought up in a settled family. There is no finding by the Panel to the contrary. The proportionality assessment considered the child’s position and it was found that her needs will continue to be met as she will remain with her mother. There was no evidence Miss Woodhouse is unable to meet the primary needs of heat, shelter, food, love, physical and emotional security, or that separation from the appellant will result in emotional or other harm to the child sufficient to render the decision wrong in law. A is very young and very young children are focussed on their parents rather than their peers and are adaptable.

31. The appellant was convicted of supplying Class A drugs. The Panel considered the factors relevant to assessing the public interest as per Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 00046(IAC). I find it was clear to the Panel that the needs of the child were an issue of substantial importance. I find the offence committed by the appellant, supply of Class A drugs and the prevention of crime and disorder and the protection of the public, as well as the deterrent element, means there must be a strong Article 8 claim for the appellant to succeed. This is also an automatic deportation case relating to an order made under the statutory provisions to be found in UK Borders Act 2007. The child and her mother shall remain in the UK. The child shall continue to be cared for by her primary carer. The child is still only very young. I do not find it proved that in dismissing the appeal the Panel made a decision outside the range of findings they were entitled to make on the evidence. The consequences of separation were noted and factored in regarding the effect of the decision on the child’s development. Even if care was shared no material error is proved in the way in which the proportionality balancing exercise was conducted.

Decision

32. There is no material error of law in the First-tier Tribunal Judge’s decision. The determination shall stand.

Anonymity.

33. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.




Signed
Upper Tribunal Judge Hanson

Dated the 17th June 2013