Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/00877/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 December 2016 and 12 April 2017
On 26 April 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

d--- A--- o---
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: On 16 December 2016 the Appellant appeared in person
On 12 April 2017 the Appellant did not appear
For the Respondent: Mr S Kodas, Senior Home Office Presenting Officer
DECISION AND REASONS
(1) Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the Appellant. I make this order because, in order to explain my decision, it is necessary to refer to evidence about a person’s health and it would be distasteful for that person and harmful for the children concerned to know that it was in public domain.
(2) The Appellant did not attend the hearing on 12 April 2017. He attended the hearing on 19 December 2016 and notice of that hearing, like the notice of the hearing on 12 April 2017, had been sent to his stated address for service in Essex. In both cases notice of hearing was sent to solicitors but they had stopped acting for him before notice of the April hearing was sent and so cannot be assumed to have informed the Appellant of the hearing. I have seen correspondence from the Appellant to the Respondent dated 22 February 2017 in which he gave as his home address an address in Charlton and not the Essex address that was known to the Tribunal. I have checked with the Tribunal’s administration. There is no record of the Appellant notifying the Tribunal of a change of address and so I have to assume that the address on file (the Essex address) is the address at which the Appellant intended to be notified about the hearing.
(3) When the case came before me on 19 December 2016 the Appellant raised issues that I thought might be very pertinent but he had little evidence to support them. I adjourned the hearing subject to a strict timetable to give him an opportunity to produce further evidence. I extended that timetable on his application so that he had until 26 January 2017 to respond. He has not produced much fresh, independent, evidence of his relationship with his children. However he had shown sufficient interest in progressing his case to have applied for extra time and he was aware that there would be a further hearing but there is nothing before me that shows that he had actual knowledge of the hearing on 12 April 2017.
(4) As is explained below, he has also written to the Respondent expressing his desire to settle the case without a hearing. Given that indication and his poor response to Directions I doubted that he wanted to attend a hearing. I had no reason to think there was any further material available that would assist the Tribunal and notice of hearing had been sent to the address given by the Appellant to the Tribunal.
(5) This hearing is, regrettably, rather a long time after the events complained of and I decided that the interests of justice (which are wider than the interests of the Appellant) lay in proceeding with the case rather than giving the Appellant even more time to prepare his case.
(6) This appeal is an appeal against the decision of the Secretary of State on 25 April 2013 refusing to revoke a deportation order signed on 3 September 2009.
(7) The Appellant claims to have arrived in the United Kingdom in August 1987. In May 2008 he applied for indefinite leave to remain on the basis of long residence but the application was refused. In October 2008 at the Crown Court sitting at Woolwich he was convicted of offences of possessing a false identity document with intent, fraud and two counts of making false representations to obtain benefit. He was sentenced to two years six months’ imprisonment. The gravamen of that offences was cheating about £35,000 from the public purse by false benefit claims. He also had a false Nigerian passport.
(8) In March 2009 he was served with notice of liability to deportation. On 4 September 2009 he was served with a reasons for deportation letter and a signed deportation order. On 7 September 2009 he made a further application for indefinite leave to remain which was refused. He appealed and the appeal was dismissed.
(9) On 26 April 2010, through his representatives, he applied for asylum. An asylum interview was arranged for 27 May 2010 but he did not attend at the required time. A further interview was arranged for 17 June 2010 and that did not go ahead because he would not consent to being interviewed without his representative being present. A further interview was arranged for 15 July 2010 but that did not go ahead because he arrived late. The interview eventually took place on 22 July 2010. Judicial review was refused and on 11 March 2013 he was asked to give reasons why he should not be deported from the United Kingdom. He did not respond to the letter.
(10) The appeal against the decision to refuse to revoke the deportation order was heard and dismissed by First-tier Tribunal Judge Clayton sitting with a non-legal member, Mr G F Sandal, in a determination promulgated on 10 March 2014. Permission to appeal to the Upper Tribunal was granted essentially because there were concerns that the Tribunal had not had proper regard to the best interests of the Appellant’s children. Upper Tribunal Judge Renton heard the appeal and allowed it, setting aside the decision of the First-tier Tribunal and arranging for the Upper Tribunal to re-determine the appeal. Like the judge who gave permission to appeal, Judge Renton was particularly concerned that the interests of the Appellant’s children had not been considered properly and especially because limited contact had been ordered by the Watford County Court on 4 December 2013.
(11) At paragraph 4 of his decision Judge Renton directed himself in the following terms:
“Revocation of deportation order cases are to be decided in accordance with the provisions of paragraph 390 and 390A of HC 395 which referred to paragraphs 398, 399 and 399A. However, it has been the Appellant’s case throughout these proceedings that his deportation would amount to a disproportionate breach of his right to enjoy family life with his two children. I will limit myself to that issue. Owing to the date when this appeal was finally heard, that issue must be decided in accordance with the provisions of Sections 117A, 117B and 117C of the Immigration Act 2014. In particular, it is the Appellant’s case that his deportation would be disproportionate because Exception 2 embodied in Section 117C(5) applies. This states inter alia that the Exception applies when the Appellant has a genuine and subsisting parental relationship with a qualifying child and the effect of the Appellant’s deportation on the child would be unduly harsh. If that is the case, the public interest does not require the Appellant’s deportation”.
(12) He then went on to allow the appeal. It is clear that, as is almost always the case in my experience, the Judge did not allow the appeal for the sake of the Appellant but because of the impact that his removal would have on children who are, of course, innocent of the Appellant’s criminal behaviour.
(13) The Secretary of State’s appeal against Judge Renton’s decision was allowed by the Court of Appeal with the agreement of the parties. It was the order of the Court of Appeal that Judge Renton’s decision should be set aside and the Upper Tribunal should reconsider the appeal. There is nothing before me to suggest that there was any criticism of Judge Renton’s decision that the decision of the First-tier Tribunal was wrong. I do not have to decide if the First-tier Tribunal erred in law. Judge Renton’s decision that the First-tier Tribunal had erred in law and it’s decision be set aside has not been challenged. I have to remake the decision and remake it in accordance with relevant law.
(14) I must apply Section 117A, 117B, 117C and 117E of the Nationality, Immigration and Asylum Act 2002 (not the Immigration Act 2014 which amended the law). To the extent that a burden and standard of proof a relevant in the context of a balancing exercise the burden is on the Appellant to prove his case on the balance of probabilities. The approach that I must take when determining whether the decision not to revoke the deportation order interferes with the Appellant’s or other people’s private and family life in a way that is contrary to Article 8 of the European Convention on Human Rights is set out in Section 117A. Certain terms under Part VA of the Nationality, Immigration and Asylum Act 2002 a British citizen are defined. There is no doubt that the Appellant is a “foreign criminal” because he is not a British citizen and he has been convicted of an offence in the United Kingdom and sentenced to a period of at least twelve months’ imprisonment. His deportation is in the public interest and, unless he can show that his circumstances come within a statutory exception, the public interest in his deportation is so strong that it is required, because that is what Parliament has said.
(15) However there are certain circumstances in which deportation can be avoided under the Act. Provided the Appellant has not been sentenced to at least four years’ imprisonment (clearly he has not) the public interest requires his deportation unless Exception 1 or Exception 2 apply. Exception 1 applies if in certain conditions including that he has been lawfully resident in the United Kingdom for most of his life which he has not. The Appellant cannot rely on Exception 1.
(16) Exception 2 applies where there is a “genuine and subsisting relationship with a qualifying partner or a genuine and subsisting parental relationship with a qualifying child, and the effect of (the Appellant’s) deportation on the partner or child would be unduly harsh”.
(17) I must look at the Appellant’s evidence and see if he is able to show, on the balance of probabilities, that either of the relationships identified under Exception 2 exist in this case. Additionally I must be alert to the possibility that a claim that fails to satisfy the rules might nevertheless be made out on human rights grounds and decide if this such a case.
(18) I confirm that I have considered all of the papers before me, including those prepared for earlier hearings and a substantial bundle of photographs. When the case came before Judge Renton the Appellant relied on his relationship with his two children. The first was born in September 1999 and the second was born in April 2002. Plainly the oldest is now nearly 18 year old and the youngest is about 15 years old. Judge Renton accepted the evidence that the Appellant had resumed contact with his children and established a relationship with them and said that they are “close” and that the Appellant plays a significant part in the life of his children. By way of example he said that the Appellant was in contact with the schools if there were any problems there but the judge also noted there was no particular evidence of any damage to the children in losing contact with their father.
(19) I have had particular regard to the letter dated 22 February 2017 from the Appellant sent to the Presenting Officers’ Unit and the Home Office case worker and its appendices because these are the most recent and therefore likely to be the more relevant strands of evidence. In the letter the Appellant hopes for “settling out of court” and says that that he had suffered tremendously.
(20) He said it had been “rather difficult” to meet the needs of his children and his nephews.
(21) The Appellant explained that his sister had died during 2015 and he produced a death certificate to confirm that claim. He said that she was the mother of four children and there was no father in the family. Those children had come to regard him as “Mum/Dad” and that he played roles for them and his own children. He then drew attention to a letter written by his niece (his deceased sister’s daughter) about their relationship and the important part he played in it.
(22) He said he had good computer skills and was able to assist charities and believed he could work if that was permitted. He talked about his son and daughter spending weekends and part of the school holidays with him and said how his son and daughter were home schooled in their last year by their mother and he helped them with their course work.
(23) He was concerned about his son living in an all-female environment and, in the circumstances, he thought his contact was all the more important.
(24) He then explained that their mother was “very sick”. She was in a civil partnership and was suffering from a tumour on her brain and there were concerns about the prognosis. He told a deliberately tender story about her daughter reflecting on how “mummy has cancer and gets sick all the time”.
(25) He also pointed out that although he recognized he had committed offences he had not been in further trouble.
(26) He then said how he had formed a close relationship with a woman who I identify as “MC” and they had proposed marriage.
(27) He produced a letter dated 20 February 2017 from Victoria Yembra who identified herself as his niece being the daughter of his late sister. She explained how the Appellant had always played a part in their lives and treated them as his children although she acknowledged that he also had children of his own. She was particularly appreciative of the assistance that the Appellant had given when their mother died and she said that they had no other family and she was very grateful for his support.
(28) There is also a letter from someone described as the Reverend Duke Imajemite. The letter is dated 10 January 2017 and described the Appellant as a person who “attends our church occasionally with his late sister Philippa and her children”. I am not sure what that means. The letter explained that the Appellant is now the “sole guidance of her four children” and comments on his “outstanding personality and disposition in dealing with people”. He had been active in various aspects of church administration. Mr Imajemite described the Appellant as “very sincere and honest”.
(29) The bundle of evidence produced for the First-tier hearing includes some unsinged statements and therefore can only be given most superficial consideration but there is a letter from the Appellant’s daughter R--- M--- W--- dated 7 August 2014. She speaks in tender terms of her father and the importance she places on their relationship. There is a similar letter dated 3 August 2014 from the son J---.
(30) There is also a tranche of evidence about the Appellant’s apparently commendable behaviour when he was in custody.
(31) I do not have is reliable independent evidence about the relationship between the Appellant and his children.
(32) I can only attach a little weight to the letter from Mr Imajemite. He gives no indication of his experience or academic qualifications as a minister of religion. It concerns me that he comments favourably on the honesty of the Appellant when the Appellant has convictions for offences of dishonesty. I appreciate that the offences were committed some time ago. If this is a case where the Appellant has rebuilt his life after going to prison then I would have expected him to have had the courage to have discussed this part of his life with his pastor and for the details to be reflected in the pastor’s letter.
(33) I also note that although there is some supporting evidence from the children concerned the evidence is only in the form of a letter or a statement. Nobody appeared before me and faced cross-examination where the story could be tested and the degree of involvement made more clear.
(34) I have seen the papers relating to earlier hearings. The psychiatric report if Dr Judith Freedman and Mr John Lawrence reveal many tensions and allegations of a range of bad behaviour by the Appellant and his former partner but the report is dated November 2011 and so is of little help to me. Contact was ordered by a District Judge and was sufficiently successful for further contact to be ordered and the parties permitted at least to some extent to make their own arrangements.
(35) However I do not have clear evidence of present contact arrangements.
(36) I am very much in the position I was in when the case came before me in December last year. The Appellant is saying things which are capable of being weighty matters but are not supported by any independent evidence or even good quality challengeable evidence such as would enables me to accept that he is as involved in the lives of the children as he would have us believe.
(37) I accept that the Appellant has some contact with his own children but the oldest is nearly adult and they are living with their mother. It is inherently likely that their father has a beneficial effect upon their lives but I do not accept that he is a particularly important feature. There is no reason why his claims could not have been supported clearly by evidence from their mother or more detailed evidence from the children.
(38) If it is his case that his removal will hurt them then it would have been helpful to have had independent expert evidence to explain and support that contention.
(39) His relationship with those children is a parental relationship. He is their biological parent and the days have gone when the vast majority of children spent their entire minority with both parents living together as a nuclear family. The relationship with the children does not cease to be parental when the parents part. However, as I cannot make clear findings about how the Appellant and his children enjoy their present relationship I cannot say that his removal would be unduly harsh for them. He can still communicate with them and they are of an age when then need for frequent, physical contact is diminishing.
(40) I have considered the awful possibility that the Appellant is supporting his children during their mother’s terminal illness. Certainly this is suggested in the Appellant’s letter of 22 February 2017 but there is nothing from their mother or her partner to confirm that she is in fact very ill or that the Appellant is giving the children important support. I make it clear that although I do not find this line of evidence important I have not rejected it because I disbelieve it. The Appellant’s former partner may well be gravely ill and may well be aggravating the problems by not facing them. However, in the absence of independent evidence I cannot accept that the Appellant is as important to the children as he might genuinely think is the case. Even if his former partner will not help him, and it is not fanciful to expect her to do that if she is seriously ill and her children need their father, his children are old enough to give useful evidence.
(41) I am aware of the dangers of deciding cases because of the evidence that this missing but I find the gaps in the evidence in this case to be significant.
(42) Similarly the Appellant’s sister’s children are, as far as I can see, being looked after well by their oldest sister. Again I accept that the Appellant plays a part in their lives and it is a positive one but I do not accept on the evidence before me that it is sufficiently important to be described properly as a parental relationship within the meaning of the Act. It is sad that their mother has died and good that their uncle (the Appellant) has taken an interest in them but supportive and meaningful relationships from concerned relatives are not necessarily quasi-parental. The relationship is, literally and metaphorically, avuncular and that is not enough to come within Exception 2. It might be different if there was evidence of cohabitation, long term commitment and financial support but that is not the case here. Further, although not strictly relevant, given my findings about the relationship, the Appellant has not shown that his departure would have an affect that was “unduly harsh”. He would be missed because he is a welcome feature in their lives but they are not dependent on him. They merely benefit from him.
(43) Whilst he may well have behaved properly in prison and there is certainly no evidence that he has been in further trouble he is in the position that he is because he chose to commit serious criminal offences. They were offences that involved persistent dishonesty for significant sums of money. Parliament has made it plain that the public interest lies in such people being deported unless certain exceptions apply and other than acknowledging this obligation I see no point in commenting on the offences.
(44) I cannot say that the disturbance to the innocent people consequent on his removal would be unduly harsh. At its highest they would be rather sad that he had gone and they would miss him from time to time but that is as far as it goes.
(45) I appreciate that the Appellant is not represented and he claims that is because he could not afford the fees. That might be right. It is very believable that he has any substantial financial reserves. Certainly he should not have been earning or claiming any significant sums in benefits. Professional services are not free and I accept that he cannot afford the representation that he would like. However, I cannot move from there to decide that if he had been able to pay for his case to be presented professionally it would have led me to a different conclusion. That would be unfounded speculation. The evidence before me is not sufficient to show that he has a parental relationship with his sisters’ children or, in the case of his own children or hers, that the effect of removal would be unduly harsh. It follows therefore that I must dismiss his appeal insofar as it relates to his relationship with his children.
(46) The relationship with his alleged new partner is of no great significance. That he has chosen to propose marriage at a time when he knows that he is under direct threat of deportation he may reveal something discreditable about his own sense of responsibility but I cannot say that the effect of deportation would be unduly harsh. It might be what is to be expected if someone chooses to form a close relationship with a person they know or ought to know can be removed from the United Kingdom but again it goes no further.
(47) I have also reflected on the delay. It has been about 8 ½ years since he was sent to prison. The Appellant has remained in the United Kingdom and has taken steps to prolong his visit by using the legal process. He is entitled to do that. There is nothing detrimental to the Appellant using the avenues of appeal that are open to him but he cannot use the time that they take as a reason to be allowed to remain.
(48) The Appellant has not been able to show that his case comes within exceptions recognised by the Rules. I remind myself that a case brought on human rights grounds is not necessarily completely answered by the application of the Rules or even the Act. However although the Appellant has satisfied me that his removal would interfere with his private and family life the interference would be lawful unless contrary to his human rights. I can see no basis for saying it is contrary to his human rights unless I found his removal a disproportionate interference with his Article 8 rights. It is unlikely that there are circumstances where removal that is not stopped by Section 117D or C is still disproportionate. The circumstances do not exist here.
(49) It follows therefore that although I do have some concerns about this case because the claims made by the Appellant might support a favourable finding I have to conclude that the evidence before me does not and I therefore dismiss the appeal. The decision that the First-tier Tribunal was wrong stands and my decision remakes the decision after the first decision had been set aside by Judge Renton.
Decision
The Appellant’s appeal is dismissed.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 25 April 2017