The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00799/2012


Heard at Columbus House, Newport
Determination Sent
On 22 May 2013
On 10 June 2013




mr barrington laxy thompson





For the Appellant: Mr Andrew Duncan, Solicitor, Duncan Moghal Solicitors & Advocates
For the Respondent: Mr Kelvin Hibbs, Home Office Presenting Officer


1. The appellant, a citizen of Jamaica, has permission to appeal against the determination of a First-tier Tribunal (FtT) (Judge Troup and Ms V S Street) who in a determination sent on 31 December 2012 dismissed the appeal against the decision made by the respondent on 17 October 2012 that he is a foreign criminal subject to automatic deportation under s.32(5) of the UK Borders Act 2007.

2. The principal ground on which the appellant relies is that the panel failed to give consideration to whether it would be in the best interests of the appellant’s children to be separated from their father. Linked to this, the grounds submit the panel defined the appellant’s family life ties too narrowly so as to exclude those with Sachon, Jahquarn and Teshi.

3. Taking the latter submission first, I do not consider that the panel’s assessment of the appellant’s ties with these children was flawed. Mr Duncan has argued that since the panel had accepted the appellant’s partner, Miss Esson, as credible and her evidence was the appellant was the natural father of these children, it was not entitled to find his paternity unproven. I cannot agree. The onus was on the appellant to prove paternity. Given that (i) the only relevant documentary evidence he relied on were birth certificates which did not name him as the father; (ii) there were no statements from the mothers of these children supporting his claim, I do not consider the panel erred in concluding as it did. But in any event, the panel’s material finding did not focus on paternity but the factual context of the appellant’s ties. Its findings were:

“41. Even if he is the father of those three children, we find that he has provided little or no financial support for them and his conduct has made family life tenuous in the extreme. We note that the Appellant was unable to identify any school which the children attend, he was unable to name a single class teacher and his claim to collect and/or deliver the children to and from school is less than credible, given the Appellant’s admission that has been a Class A drug addict for the last ten years.”

4. These findings were open to the panel on the evidence and their effect was that his ties to these children had little factual content and as such could not add significant weight to his Article 8 claim.

5. As regards the appellant’s ties with Miss Esson’s two children, her unchallenged evidence was that he was the father of Barrianne (which was confirmed by the birth certificate) and that he had a family life tie with her son from an earlier relationship, Raekwarn. On the basis of her evidence the panel accepted family life did exist between Miss Esson, these two children on the one hand, and the appellant on the other.

6. Insofar as concerns the panel’s consideration of the best interests of these two children, Mr Duncan accepts that there was partial consideration. At paragraph 51 the panel stated:

“51. As for the best interests and wellbeing of the children, we find that Miss Esson’s view coincides with that expressed in ZH (Tanzania) [2011] UKSC 4, namely that the children’s best interests are a primary consideration and that the intrinsic importance of citizenship should not be played down and that in all the circumstances it would not be in the interest of the children to remove to Jamaica.”

7. I would observe that this passage shows that the panel understood and applied the principle set out in Sanade and Others [2012] UKUT 00046 that in the case of a British citizen child (as each of these children is), it is not reasonable to expect them to leave the territory of the Union and relocate with the appellant in Jamaica, as this would deny them the substantial enjoyment of their rights as Union citizens. The panel did not phrase matters thus but that is the plan effect of paragraph 51 (see also paragraph 48).

8. Mr Duncan argues, however, that such consideration fails to address the question of whether the best interests of the children were vitiated by the appellant’s prospective removal. I cannot accept that argument. Albeit the panel’s treatment of the matter is brief it is quite apparent that the appellant’s relationships with Miss Esson and her children were seen as central to the assessment the panel saw itself as undertaking. The panel’s determination records at 31 the respondent’s submissions that interference with their family life would be proportionate bearing in mind that they have never lived with the appellant full-time and Barrianne has only seen the appellant in a prison environment since she was 9 months old and was nevertheless progressing and was well looked after (31).

9. At paragraphs 32-37 the panel notes submissions made on the appellant’s behalf that Marion is involved in an A level course and has a continuing relationship with his own father. At paragraph 50 the panel notes that Miss Esson had confirmed the appellant had been unable to provide financially for the children and also that she had gone ahead with having a child with him although fully aware of his problematic immigration status and the fact of his drug addiction. I consider that it was apparent from the panel’s assessment that they did not consider that the removal of the appellant would impact on either of these children in a way that would significantly impair their best interests. Given their other finding that there was a medium risk that he would reoffend (“his criminal history gives little ground for optimism”), it was clearly also a factor in the mix that just as he had denied himself and these children a proper family life by committing offences and being imprisoned in the past, it was likely the same might happen again. I would also observe that the evidence produced in support of the appellant’s case as to the strength and quality of his ties with these two children was limited and there was nothing to demonstrate that they had been or would be psychologically impaired by his physical absence from their lives. It is also significant that the panel’s analysis of the appellants Harrison and Walker (whose circumstances the panel saw as being “closely akin” to those of the appellant) in Sanade makes clear that visits to Jamaica and other forms of communication appear possible (paragraph 54) and there was no reason why all contact would be lost. The grounds dispute the efficacy of the panel’s reliance on these case comparisons but I see no factual basis for considering that the observations made about Walker at paragraph 54 were not equally applicable to the appellant.

10. The grounds also relied on two other matters. One, relating to the importance of the appellant’s relationship with his own mother, was formally abandoned before me by Mr Duncan and I would add that I think it was realistic of him to do so, not least because even in the 2009 representations made about the importance of this relationship it was accepted that the appellant’s family life “revolved around” his partner(s) and his children not around that matter. Although living with his mother it was also plain he spent a great deal of time away from home and that he did not financially support, nor was he financially supported in any consistent way, by his mother.

11. The only other ground pursued before me concerns the appellant’s dyslexia and the alleged failure of the panel to make proper allowances for the difficulties this condition (together with his drug abuse) caused to the appellant’s ability to recollect matters and to acquit himself properly when giving evidence. The short answer to this contention is (i) that the appellant’s representatives have known for some considerable time about these difficulties and are clearly in a position to have ensured they obtained evidence from third parties to support his various contentions (e.g. statements from the various mothers of his other children); in such circumstances they were entitled to count against the appellant shortcomings in his evidence relating to his inability to give details. At paragraph 41 the panel stated:

“41. Even ... We note that the Appellant was unable to identify any school which the children attend, he was unable to name a single class teacher and his claim to collect and/or deliver the children to and from school is less than credible, given the Appellant’s admission that has been a Class A drug addict for the last ten years.”

12. There were no documents or witness statements from others accompanying the grounds of appeal evidencing that the appellant had collected and delivered the children as claimed. I consider it was entirely open to the panel as a fact-finding Tribunal to disbelieve the claim made by the appellant about regularly picking up children from school.

13. For the above reasons I conclude that the FtT did not materially err in law and accordingly its decision to dismiss the appellant’s appeal must stand.

Signed Date

Upper Tribunal Judge Storey