Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00895/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 March 2017
On 23 March 2017

Before

UPPER TRIBUNAL JUDGE KING TD

Between

k t
(ANONYMITY DIRECTION made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Eaton, of Counsel, instructed by Asylum Aid
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, who is a citizen of the Democratic Republic of Congo, appeals against the decision of the Secretary of State for the Home Department, made on 1 May 2014, whereby the Secretary of State refused to revoke a deportation order made pursuant to Section 5(1) of the Immigration Act 1971.

2. The appellant arrived in the United Kingdom on 8 October 1993 and claimed asylum. On 23 June 1999 his application was refused but he was granted exceptional leave to remain until 23 June 2003, thereafter leave was extended to 23 June 2006.

3. On 3 March 2003, the applicant was convicted of theft, two counts of forgery and attempting to obtain property by deception.

4. On 9 January 2004 the appellant was convicted of conspiracy to fraud, handling stolen goods, obtaining pecuniary advantage by deception for another and two counts of obtaining property by deception. He was sentenced to three concurrent sentences of six months’ imprisonment.

5. On 25 April 2006 he submitted an application for further leave to remain which was refused on 13 April 2007.

6. On 20 October 2006, the appellant was convicted of five counts of false accounting and sentenced to nine months’ imprisonment. He was notified of his liability to deportation on 7 November 2006.

7. On 19 February 2008, the respondent signed a deportation order against him.

8. In a letter of 27 June 2013 the appellant’s legal representatives submitted an application for revocation of the deportation order on refugee and human rights grounds. This was on the basis that the appellant committed no further offences. He had been for the past three years in a committed relationship with a partner and her stepdaughter. It was in respect of those representations that the respondent made the decision of 1 May 2014 not to revoke the deportation order.

9. The appeal came for hearing before First-tier Tribunal Judge Flynn on 2 December 2014 and 2 February 2015. The appeal was allowed.

10. The respondent sought to appeal against that decision, which appeal came before Upper Tribunal Judge Chalkley, with permission, on 1 February 2016. The decision of First-tier Tribunal Judge Flynn was set aside by reason of error of law. In particular, the Judge had failed to identify with sufficient reasons why the appellant’s removal would make it unduly harsh for either of the children.

11. The matter was remitted to the First-tier Tribunal for a re-hearing on the human rights aspect of the appeal, the findings in relation to the asylum appeal and its dismissal being retained.

12. Thus the matter came before First-tier Tribunal Judge Corben on 15 July 2016. There is a detailed determination which concluded with the decision that the appeal be dismissed.

13. The appellant submitted grounds of appeal against that decision, contending that it was flawed in a number of respects.

14. The primary challenge is the contention that the Judge materially failed to give consideration to the full range of Section 117C conducting the proportionality balancing exercise. In particular, Section 117C(2) and 117C(5) sets out exception (2) applies with the effect of the deportation on the appellant’s partner or child would be unduly harsh. Linked with that is the situation of the appellant himself, it being said that it is clear from the judgment of the Court of Appeal in MM (Uganda) [2016] EWCA Civ 450 , in considering whether or not the effect of deportation of the appellant would be unduly harsh for his partner and British children, the public interest in his deportation is reduced by virtue of the relative lack of seriousness of his offending.

15. Section 117C(2) provides that: “the more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal”. In that connection at paragraph 24 of the Judgment in MM is cited as follows:

“This steers the tribunals and the court towards a proportionate assessment of the criminal’s deportation in any given case. Accordingly the more pressing the public interest in his removal, the harder it will be to show that the effect on his child or partner will be unduly harsh. Any other approach in my judgment dislocates the ‘unduly harsh’ provisions from their context. It would mean that the question of undue hardship will be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case, the term ‘unduly’ is mistaken for ‘excessive’ which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case. In the present context relevant circumstances certainly include the criminal’s immigration and criminal history.”

16. It is contended in the grounds,therefore, that the relevant circumstances in this case applying MM are that the appellant’s last sentence was of nine months’ imprisonment. He has not offended since 2008. No action has been taken to secure his removal since that time.

17. It is submitted that in connection with the public interest aspect the Judge has fallen into error by reason of the remarks in paragraph 54 of his determination.

18. At paragraph 39 of the determination the Judge indeed does note that the appellant has not been convicted of any further offences since he was released from prison and immigration detention. What was not apparent to the Judge was why he had not been deported thereafter.

19. What is clear, however, from paragraph 40 of the determination is that the appellant commenced his cohabitation with his current partner in 2013 and her daughter. His son was born on 6 November 2014.

20. Thus it is entirely apparent that, notwithstanding the deportation order which was signed against him and not appealed, the appellant remained in the United Kingdom and commenced to build up his family life. Such is an important consideration in the context of this particular case. It was the point made by the Judge explicitly in paragraph 54 of the determination. He noted that the relationship was not formed prior to the appellant being notified that he was liable to deportation but in full knowledge of the deportation decision:

“Deportation carries a deterrent effect to other non British citizens who might be tempted to commit criminal offences and the public would lose confidence in a system where an appellant was permitted to escape deportation completely, primarily because of the establishment of a family life in the United Kingdom that postdates the making of the deportation order. These considerations make the public interest in continuing with the deportation order that much stronger than a case where revocation is sought over a deportation that has occurred and some period of time has been spent outside the United Kingdom by the appellant seeking revocation.”

21. Although challenge is made to that approach it seems to me to be an entirely reasonable one. Indeed what would seem to have not been made clear to the Judge are the remarks by Upper Tribunal Judge Chalkley in his decision to order a re-hearing. It appears from paragraph 9 of Judge Chalkley’s determination that the appellant had absconded to avoid removal. In any event, the deportation order was not appealed and it was only until 2013 that further submissions were made. It is readily to be appreciated how important the public interest would be in securing the removal of an individual, who not only deliberately evades deportation but then seeks to create a family life thereafter, in order to use that to bolster his claim to remain. Clearly the appellant’s lack of co-operation with the authorities may well explain to some extent the delay that otherwise falls to be explained. Although his lack of offending since 2008 may properly be a factor to be held to his credit, his immigration history clearly is one that is not.

22. The situation of the appellant is a curious one, given the sentence which he received of nine months’ imprisonment. Such does not, under the strict interpretation of the Regulations or statute, make him a foreign criminal such as to benefit as of right from the matters set out in Section 117C in relation to Article 8. Equally, although technically he would fall within 117B that makes little practical sense given that he is the subject of deportation already. The pragmatic view, which was taken by First-tier Tribunal Judge Corben, was to have regard to the spirit of that particular section.

23. The Judge at paragraph 45 said as follows:-

“45. It is apparent that on both definitions of foreign criminals provided by statute it is envisaged that some non British citizen offenders will fall outside the scope of the provisions. On the evidence before me this appellant does and consequently I do not consider paragraphs 398, 399 or 399A have any application to this appeal.

46. This means that I need to consider paragraphs 390, 391 and 391A of the immigration rules. As paragraph 391 provides that continuation of a deportation order would not be appropriate if it would be contrary to Article 8 of the Human Rights Convention this the next aspect I turn to. In considering whether the continuation of the deportation order would amount to a breach of Article 8 I am directed to Part VA of the Nationality, Immigration Act 2002. I have to take into account the provisions of section 117B(1)-(5) inclusive. However as I am not persuaded that the appellant falls within the definition of a ‘foreign criminal’ under that part of the Act I leave out of account section 117C. This is not to say that the factors listed in section 117C are not relevant to my Article 8 assessment because they are in part an attempt to recognise relevant factors that would apply to any Article 8 assessment involving the deportation of a foreign national for criminal offending but by virtue of the definition of foreign criminal section 117C I do not have to have regard in particular to section 117C considerations.”

24. Neither party before me seeks to challenge that approach but Mr Eaton submits that if Section 117C is to be taken into account, then it must be taken into account as a whole. That includes 117C(5) where the appellant, as in this case, has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of his deportation on the child or partner would be unduly harsh. He submits that that assessment has not been undertaken in any shape or form in the determination and it ought in fairness to have been done.

25. There is some merit in the concern as to that issue, particularly because it was a matter highlighted by Judge Chalkley in setting aside the previous determination of Judge Flynn, because inadequate reasons had been given for the finding that it would have been unduly harsh for the children that the appellant be removed. It would therefore have been important for Judge Corben to have considered that explicitly.

26. That having been said, Judge Corben has set out in considerable detail all the evidence and the circumstances that relate to the appellant, his partner and to the two children.

27. Considerable reliance was placed by the appellant upon the report by Diane Jackson, an independent social worker of 12 July 2016. Arrangements had been made to interview the appellant at his home on 21 June 2016. At that time his step-daughter, S, was still at school and was attending a disco and so it was that the social worker had managed to speak to her after the disco. It was not entirely clear therefore from the report how much time the social worker spent with her or indeed with the appellant’s son prior to making the report.

28. It is noted, so far as the son was concerned, that he appeared to be happy and alert and relaxed in the company of his father, aunt and sister as well as his mother. The step- daughter moved to her present school in May 2015.

29. The report touches upon the relationships with family members in the United Kingdom. The appellant has a sister who lives with her partner. His brother lives in Wandsworth with his partner and has two sons from a previous relationship and two daughters from his current relationship. The appellant’s youngest sister lives in Penge and has a son and has recently given birth to a baby girl. The family would seem to be close with frequent visits and inter-reaction between siblings and the children. They seem to be a happy and united family and good relationships are spoken of in the report.

30. There would seem to be some questioning of the appellant’s daughter who said that she got on well with the appellant. She said that she had been to the seaside with her family and with her three cousins who are the children of her mother’s sister and they live in Croydon. She enjoys school, her favourite subjects being maths and literacy. She touched upon the cooking that the appellant does and the games which are played.

31. The social worker spoke with her teacher on the telephone who said that she was “very social and has a good group of friends”. Academically she is where she needs to be and is working towards her target and she is a happy child. She misses her father and also her baby brother. There are no concerns. She spoke of being happy now that the appellant was her father and speaks of going to the cinema together. The teacher made the comment that she does not talk a lot about the appellant but is clearly pleased to see him.

32. The social worker in her report at paragraph 10.5 speaks of the good relationships between family members and that such relationships are important to the appellant’s daughter, S, and that her relationship with her immediate family is of prime importance to her. It was the view of the author of the report that, were the appellant to be absent from the life of S, she would not understand, be angry and sad and suffer bereavement. This may have long lasting effects if she saw her mother’s distress and her brother’s distress and sadness might show in anger in other ways. The social worker then speaks of the impact on L, the appellant’s partner, were he to be absent from her.

33. The Judge looked at such matters in paragraph 41 of the determination. It was accepted that the appellant plays a role in both the children’s lives but the primary parental responsibility falls upon his partner’s shoulders. S attends primary school and M attends a childminder five days a week, enabling his mother to attend college where she is studying. The Judge did not find any reason why the current childminding arrangements would need to change if the appellant were no longer in the United Kingdom. He accepted that the removal of the appellant from the family unit would cause distress and upset for the partner and the two children, “though more immediately so for her daughter than her son as he is still very young”. The Judge goes on:

“I note Ms Jackson’s concerns about the severity of the effect but it is fair to say that Ms Jackson’s evidence tended to add succeeding layers of possibilities one on top of another to reach her overall assessment. I was not able to follow why Ms E, who was able to look after her daughter for some 7 years before she began cohabiting with the appellant, was likely to suffer from such a strong bereavement reaction that she would be unable to cope and the children would be at risk of being taken into care. Ms E had other family members around her who would no doubt provide some support and she has known for some considerable time that the appellant was subject to a deportation order. She stated this was not something she worried about at the time and it did not deter her from extending her family with the birth of her son. As Ms Jackson commented on her report Ms E presented as an intelligent, committed and caring young woman who has overcome the difficult start she had with the loss of her own parents and relocation from the DRC. Having seen and heard from Ms E I formed the view that Ms E was not the sort of personality that would be unable to function without the appellant however sad and distressed she might be at his removal.”

34. At paragraph 52 the Judge gave reasons why it was in the best interests of the children for the appellant to be with them but continues at paragraph 53 as follows:

“Thus it is my view in the best interests of the children for the appellant not to be separated from them. I also recognise that the children’s best interest or interests are a primary consideration and I treat it as such. Nevertheless it is not the determinative factor. I am conscious that the appellant’s son is not yet 2 years old and the immediate separation from the appellant may have fewer repercussions than the immediate separation would have from Ms E’s daughter. As far as the appellant’s relationship with Ms E’s daughter is concerned the appellant has not been present throughout the daughter’s life and it has been only about the last 3 years that the appellant and Ms E have cohabited.”

35. It clearly would have been desirable for the Judge to have perhaps commented explicitly on whether the departure of the applicant would have an unduly harsh effect upon the step-daughter. It is clear from the overall context of the detailed determination that the Judge has looked at who has the primary responsibility for the daughter; the length of that relationship and has expressed reservations as to the overall conclusions of the report of Ms Jackson.

36. Fundamentally the appellant’s step- daughter is a happy contented child, working well at school and enjoying not only the relationship with the appellant but also the wider relationship with her extended family and cousins. Although Ms Jackson may speculate as to what might occur in the future in terms of anger, it is fundamentally a very happy and united family. In those circumstances there is very little that would in reality support the contention that is advanced on behalf of the appellant, that his departure would be unduly harsh in respect of his daughter.

37. It seems to me that had the Judge been asked to specifically articulate on that issue, the Judge would not have found that removal was unduly harsh in all the circumstances on the basis of the factual matrix as set out in the determination. There is indeed nothing on the evidence that was presented, apart from the speculation by Ms Jackson, to support any conclusion to the contrary.

38. In effect therefore the appellant is somebody who sought to evade deportation, certainly for a period, during which time he created a family and private life in full knowledge of his deportation order and sought to use that family and private life as a reason for his non deportation. I find that the Judge was entitled to regard the appellant’s overall immigration history as providing a very strong reason to support the correctness of deportation, notwithstanding the difficulties which that will have upon the children.

39. Overall, therefore, although the Judge was in error in not articulating more clearly the issue whether or not removal was unduly harsh, such an error is not material, given the nature of the evidence that has been presented and the indication from all the remarks of the Judge that had that matter been articulated it would not have succeeded.

40. I do not find, therefore, that any omission by the Judge to articulate matters with particular clarity was in the circumstances so significant as to render the decision unsafe.

Notice of Decision

41. In all the circumstances I uphold the decision of the First-tier Tribunal Judge and dismiss the appeal lodged against it. The decision shall stand, namely that the appellant’s appeal in respect of human rights and Article 8 is dismissed such that the decision of the respondent not to revoke the deportation order is upheld.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 23 March 2017

Upper Tribunal Judge King TD