The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00882/2011


Heard at Stoke
Determination Promulgated
on 30th October 2013
On 23rd December 2013




PBCO (aka BEO)
(Anonymity order in force)


For the Appellant: Mr O Ngwuocha Solicitor.
For the Respondent: Mr M Hussain – Senior Home Office Presenting Officer.


1. This appeal has been remitted to the Upper Tribunal by the Court of Appeal in an order sealed on 14th June 2013. The scope of the remittal is to allow the Upper Tribunal to consider whether (i) there is a genuine and subsisting relationship between the Appellant and his child and, (ii) the Respondent's decision to deport the Appellant breaches his rights to a family life pursuant to Article 8 of the ECHR. I find (i) yes there is and (ii) it will not as the decision has been shown to be proportionate.
2. The Statement of Reasons attached to the order notes the Appellant is a Nigerian national who entered the United Kingdom as a visitor in 2004 and overstayed. His date of birth is 2nd November 1980. He commenced a relationship with a British citizen with whom he has a son born on 4 November 2006 who is also a British citizen.
3. On 29th December 2010 the Appellant was arrested at Luton Airport on suspicion of travelling with a false travel document. He was convicted on 11th January 2011 for knowingly possessing a false or improperly obtained identity document for which he was sentenced to 12 months imprisonment. The Sentencing Judges remarks record that the Appellant was detained, having arrived on a flight from Bucharest in possession of a false Belgian passport and a photocopy of a stolen German passport. He admitted in interview purchasing the Belgian passport in 2005 in order to remain in the UK when his lawful leave as a visitor expired. He also admitted to working illegally in the UK since 2005. These are serious offences undermining the integrity of the UK’s immigration system which is reliant upon the reliability of documents.
4. On 7th February 2011 the Appellant was served with notice of liability to automatic deportation as a result of which, on the 15 April 2011, he claimed asylum.
5. The asylum claim was refused on 17th November 2011 at which point it was also found that his deportation would not breach Article 8 ECHR or any human rights. The Appellant appealed those decisions.
6. The appeal was dismissed by a panel of the First-tier Tribunal on 1st February 2012 (‘the FTT Panel’). With reference to the Appellant’s relationship with his son on the FTT Panel found
“… The appellant may have a child but the child is not dependant upon him. The child lives with the mother. He may have a child in this country but there has not been established that his relationship with the child is so exceptional or dependant that the child needs him in the UK”.
7. Permission to appeal was granted and the matter further considered by a panel of the Upper Tribunal composed of Upper Tribunal Judge Martin and Deputy Upper Tribunal Judge Parkes (‘the UT Panel’) sitting at Nottingham Magistrates Court on the 26th April 2012. They found no error of law in the determination such as to warrant it being set aside. In paragraph 27 of their determination they state:
“So far as the Tribunals (FTT) use of the word “exceptional” is concerned; while the choice of the word is indeed unfortunate given the significance the word “exceptional” has come to have in this jurisdiction following Huang we do not regard it as an error of law”
8. Permission to appeal to the Court of Appeal was eventually granted by Lord Justice Ward following an oral hearing on 5th December 2012 in which he stated:
“The issue is simply this, and this is the ground upon which I give permission. The First-tier Tribunal found … that the relationship that this applicant has with his child is not “so exceptional or dependant that the child needs him to remain in the UK”. Ms Norman submits that is the wrong test, that it is an important matter of principle that the right test be applied. The right test is, she says simply, that it be genuine and subsisting. For that she relies on … EB (Kosovo) v SSHD [2008] UKHL 41 … So she submits that the test is simply genuine and subsisting and that in applying an exceptionality test they have got it wrong.

… (the appellant) can have permission to appeal to see whether they have misdirected themselves in applying an exceptional and dependant test and whether they have failed properly to take account of the boy’s interest, which it is now incumbent on us to do.”
9. Although not specifically stated to be so, it must be the case that the effect of the Court of Appeal order dated 14th June 2013 is to set aside the determination of the UT Panel and for the determination of the FTT Panel to be the correct starting point for me in this case.
10. The Appellant has filed a further witness statement in which he asserts that his relationship with his son is very close, genuine and subsisting. The Appellant accepts his contact was limited whilst he was in detention but claims that since his release on bail, in December 2012, it has been more frequent [8]. He meets his son from school each day and they are together until 6.00pm when he is taken home to his mother and that they have spent several weekends together [9]. His son’s teachers are also aware of his involvement in his son’s life [10].
11. The Applicant accepts that his son cannot return to Nigeria with him and that this is a family splitting case [14].
12. The primary submission made before me is that the Article 8 rights of the child are engaged to the same extent as those of the Appellant even though the deportation decision only relates to the Appellant. I accept this principle which is in line with the guidance provided in the case of Beoku-Betts [2008] UKHL 39.
13. The child is nearly seven yeas of age having been born in November 2006. It is conceded before me that the Applicant has family life recognised by Article 8 with his son, the quality of which is demonstrated by the interaction referred to in the witness statement. It was accepted by both advocates that the issue is that of the proportionality of the decision. The FTT Panel concluded that any interference was proportionate and I shall proceed to consider whether that is a finding properly open to them on the evidence if the merits of the case are correctly assessed.
14. Mr Ngwuocha sought to rely upon EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 in which Lord Bingham said that it was rarely proportionate to uphold an order for removal where spouses had a close and genuine bond, and the resident spouse could not reasonably be expected to follow the removed spouse to the country of removal. Two issues arise from this, the first of which is that EB (Kosovo) is not a deportation appeal and secondly, in R (on the application of Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) Mr Justice Sales held that Lord Bingham had not intended to be unduly prescriptive in EB (Kosovo) when he said that it was rarely proportionate to uphold an order for removal where spouses had a close and genuine bond, and the resident spouse could not reasonably be expected to follow the removed spouse to the country of removal. The Court found that that reference was a loose summary of how the ECtHR tended to look at the issue rather than an authoritative expression of the correct approach (paras 44 – 47).
15. I accept that in general terms the best interests of a child are to be brought up by both parents living as a single unit, in a caring and loving environment. This does not occur in this case as the Appellant and the child’s mother live apart. In such a case it is accepted that the best interests are served by ongoing contact with the ‘absent parent’ to maintain the bond, in the absence of evidence to the contrary. This will be direct contact but, if not possible, then by indirect means. In this case it is accepted that the child currently enjoys direct contact and if the appeal fails and the Appellant is deported this will revert to indirect contact by whatever means are available.
16. Mr Ngwuocha further submitted that the consequences of the Appellant’s removal are important which is correct as this is a relevant part of the proportionality balancing exercise. There is, however, no expert evidence indicating emotional or psychological consequences that will lead to irreparable harm to the child or to make the decision disproportionate on this basis. I accept that most children losing contact with a parent they love will suffer distress and that it is reasonable to assume this will be the case if the Appellant is removed. There is no evidence the child will not be comforted by his mother or that she will not be able to continue to provide for the child’s essential needs of love, security, accommodation, food, clothing and protection. The child will continue to attend school who can no doubt be made aware of the change in his life and assist directly or through other professional services if required. I accept the child may have to adapt to a new family structure as many children do when families breakdown and/or contact is lost. There is no evidence the child suffered adversely when his father was detained and not able to see him as he has started to do following his release.
17. There is insufficient evidence to substantiate Mr Ngwuocha’s submission that the child’s mother is unable to meet all his needs. She has had to in the past and it is reasonable to assume, in the absence of evidence to the contrary, that she will be capable of doing so in the future and of providing the routine so important to any child’s development. There is no evidence that the support given by the mother will not allow the child to realise his potential in the future.
18. I do not find Mr Ngwuocha’s submission that the upset and distress separation may cause will have severe consequences for the child. Mere assertions of such a traumatic effect must be supported by evidence. None was provided.
19. The child’s mother failed to attend court or to support the Appellant in his case or in relation to the child. I was told by Mr Ngwuocha that this was because she is in a relationship with another person which resulted in another issue being raised by the Appellant who expressed concern for the safety of his son. He stated that if an issue arose between his son and his step-father he needed to be there to protect him. Whilst I understand the emotional reaction the Appellant may feel to the prospect of another man caring for his son and fulfilling the role as a de-facto father that he may feel his is entitled to, there is no evidence to support the claim there may be child protection issues and I find, on the evidence, this to be mere speculation. In any event statutory services exist to protect children if such issues arise.
20. The Appellants case is that the best interests of the child are not outweighed by the need to remove him.
21. The Respondent relies upon the case of Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 00046(IAC) in support of the public interest argument which includes the deterrent factor. In Richards v Secretary of State for the Home Department [2013] EWCA Civ 244 the Court of the Appeal upheld the decision and said that the important point was that the strong public interest in deporting foreign criminals was not merely the policy of the Secretary of State but the judgement of Parliament. That gave it special weight which the courts needed to recognise.
22. The above is relevant as Mr Ngwuocha sought to distinguish the case of SS (Nigeria) v SSHD 2013 EWCA Civ 550, in which that appellant had been sentenced to three years for dealing drugs, on the facts but such an approach has no merit for the key principle to emerge from SS is the statement by the Court of Appeal that in previous cases in which potential deportees raise claims under Article 8 relying on the children's interests insufficient attention had been paid to the weight attached to the policy of deporting foreign criminals which came from primary legislation. The weight to be given to the fact this Appellant is the subject of a deportation order made under the 2007 Act still applies even though he was not convicted of a drug related offence. The nature of the offence maybe a relevant factor in the balancing exercise but not an element that allows the Tribunal not to follow the guidance provided in SS (Nigeria).
23. The Appellant is an overstayer. He has no leave to remain and became involved in a relationship and conceived his son at a time when he had no leave and when he had no legitimate expectation he will be permitted to remain in the UK. Accordingly Maslov does not apply to his case as he has no lawful residence.
24. There is reference in the grounds to the Boultif criteria, as confirmed by Uner v the Netherlands 2007 Imm AR 303. In those cases 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.
25. The need for the Appellants removal is set down in statute approved by parliament and, as noted in SS (Nigeria), this is within the margin of appreciation granted to Member States to control entry to their territory of non EU migrants and their ability to remain here. This is a splitting case and the key issue, as identified, is whether the needs of the child outweigh the right of the State. I find in this case they do not. I find the Respondent has discharged the burden upon her to the required standard to show the decision is proportionate when considering the legitimate aim relied upon, the nature of offending, the statutory provisions, and the seriousness and nature of the offence. None of the exceptions to deportation to be found in the 2007 Act have been shown to apply. In this regard I note the findings of the FTT Panel that the Appellant’s claim for asylum or any other form of international protection was rejected and that clear adverse credibility findings were made against him. There is no challenge to the decision refusing his appeal on all grounds relating to protection issues before me.
26. It was not argued before me that “exceptionality” was the correct test to be applied by the FTT Panel. What is needed in any Article 8 case, but especially one involving children, if the Appellant is unable to succeed under the Immigration Rules (as this Appellant is unable to), is an assessment of the proportionately of the decision which is a fact sensitive exercise with no ‘bright line’ test. Having undertaken such an exercise the finding of the FTT Panel that none of the exceptions in s33 of the 2007 Act apply is within the range of findings they were entitled to make on the evidence. To the extent that finding was based upon the application of an incorrect test (that it was necessary to show the relationship with child was so exceptional or dependant that the child needs him to remain) the determination is set aside for legal error although all factual findings are preserved. For the reasons set out above I substitute a decision to dismiss the appeal.

27. The First-tier Panel materially erred in law. I set aside their decision. I remake the decision as follows. This appeal is dismissed.
28. The anonymity order shall continue (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008) to protect the identity of the minor child.

Upper Tribunal Judge Hanson

Dated the 18th December 2013