Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01205/2014

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 6 December 2016
On : 13 December 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

tahoor Mahboob
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B Amunwa, instructed by ULaw Legal Advice Centre
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Pakistan, born on 16 September 1978. Following a grant of permission to appeal against the decision of the First-tier Tribunal allowing his appeal against the respondent's decision to deport him from the United Kingdom, it was found, at an error of law hearing on 21 July 2016, that the Tribunal had made errors of law in its decision and the decision was set aside, to the extent set out below. Directions were made for the decision to be re-made by the Upper Tribunal.

Background

2. The appellant entered the United Kingdom on 23 July 1990 with his mother and brother, at the age of 11 years, and was a dependant in his mother's asylum claim. On 11 August 2000 he was granted indefinite leave to remain under the "backlog clearance" exercise.

3. On 20 January 2001 the appellant married Andrea Barath, a Hungarian national. They had two children together, a son Amin born on 2 October 2004 and a daughter Laila born on 14 February 2006. The appellant and his wife separated on 16 November 2012, when the appellant left the family home at the request of his wife. They were divorced on 30 August 2013.

4. Between 23 July 1996 and 12 October 1998 the appellant received four convictions for eight offences, including vehicle taking, theft from a vehicle, driving whilst disqualified and possession of Class B (cannabis) drugs. Between 15 December 2009 and 10 May 2013 he received a further nine convictions for 14 offences, including driving with excess alcohol, making off without paying, possession of Class A (cocaine and crack cocaine) drugs, failing to surrender to custody, possession of Class B (cannabis) drugs, failure to comply with the requirements of a community order, failure to attend drugs tests and threatening to damage property.

5. On 28 June 2013 the appellant was convicted of burglary and theft of a dwelling and possession of Class B (cannabis) drugs, the index offence, and was sentenced to 16 months' imprisonment. He served eight months of his sentence in prison and was then detained under immigration powers until 26 February 2014.

6. On 31 October 2013 the appellant was notified of his liability to automatic deportation, but following representations as to his marriage to an EEA national he was issued with a fresh liability to deportation in relation to the EEA Regulations. Following notification of the appellant's divorce his case fell again to be considered under the provisions of automatic deportation under section 32(5) of the UK Borders Act 2007. On 11 June 2014 a deportation order was signed against the appellant and a decision made the following day, on 12 June 2014, that section 32(5) of the UK Borders Act 2007 applied.

7. The respondent, in considering the appellant's Article 8 claim, considered that paragraph 398(b) of the Immigration Rules applied to him, given the length of his sentence of imprisonment. With regard to paragraph 399(a), the respondent noted that the appellant's ex-wife had confirmed that he maintained contact with their children but considered that the criteria therein did not apply as their mother could continue to care for the children. Paragraph 399(b) did not apply as the appellant was no longer in a subsisting relationship with his ex-wife. With regard to paragraph 399A the respondent noted that the appellant had been lawfully residing in the UK for approximately 23 years since the age of 11, but considered that he maintained ties to Pakistan and concluded that he did not, therefore, meet the relevant criteria. The respondent did not accept that there were exceptional circumstances such that the appellant's right to family and/or private life outweighed the public interest in his deportation. It was accordingly concluded that his deportation would not breach Article 8.

8. The appellant's appeal against that decision was initially heard in the First-tier Tribunal on 20 November 2014 by First-tier Tribunal Judge Martins and was dismissed in a decision promulgated on 13 February 2015. That decision, however, was set aside in the Upper Tribunal on 24 September 2015, on the basis that the judge had considered the wrong version of paragraphs 399 and 399A, which had changed by the time of the appeal hearing, and had failed to take into account section 117B and C of the Nationality, Immigration and Asylum Act 2002. The appeal was remitted to the First-tier Tribunal to be heard de novo.

9. The appeal was then heard on 15 January 2016 by First-tier Tribunal Judge O'Garro. Judge O'Garro heard from the appellant, his ex-wife Andrea Mahboob, his sister and his mother. She accepted the evidence of all the witnesses. She accepted that the risk of the appellant re-offending was low. The judge found that paragraph 399(b) (which she mistakenly confused with paragraph 399(a)) did not apply, since the appellant was not married and did not have a partner. With regard to paragraph 399(a) she accepted that the appellant had a genuine and subsisting relationship with his two children and that they would be very upset if he were deported. Applying the guidance in MAB (para 399; "unduly harsh") [2015] UKUT 435 she concluded that it was not reasonable to expect the children to leave the UK if the appellant was deported, but she concluded that it would not be unduly harsh for them to remain in the UK without him. Turning to paragraph 399A the judge found that the appellant had spent most of his life in the UK, that he would have lost all ties to Pakistan and that there were significant obstacles to his integration in that country. She concluded that his deportation would breach his Article 8 rights and that the exception to automatic deportation applied. She accordingly allowed the appeal.

10. Permission to appeal to the Upper Tribunal was sought by, and granted to, both parties. The appellant sought to challenge the judge's findings on paragraph 399(a) and (b), whilst the respondent sought to challenge the findings on paragraph 399A.

11. Following an error of law hearing on 21 July 2016, I upheld the First-tier Tribunal's decision in relation to paragraphs 399(a) and (b) but allowed the Secretary of state's appeal and set aside the judge's decision on paragraph 399A, as follows:

" Consideration and findings

Mr Mahboob's Appeal

17. I turn first of all to Mr Mahboob's cross-appeal.

18. Mr Amunwa submitted, in summary, that the judge had failed to make any express findings on what was in the best interests of the children, that she had rolled the children up into one consideration and that she had failed to consider the relationships between the appellant and each individual child. He submitted further that she had wrongly speculated about the cause of the children's trauma being the lack of any contact whilst the appellant was in prison and that she should have concluded that the "unduly harsh" test had been met. He also submitted that the judge had failed to consider the evidence that the appellant and his ex-wife were back together and that the very compelling circumstances test had been met.

19. It seems to me that, albeit in parts arguably brief, the judge's findings nevertheless addressed all relevant matters in relation to both the children and the appellant's relationship with his ex-wife. It is clear from her findings at [73] and [74] that the judge gave full consideration to the ISW's report, considering the observations made by Mr Horrocks in regard to each child separately. I do not agree with Mr Amunwa, that the judge's finding at [77] about the cause of the children's trauma was unduly speculative and contradicted by the ISW's report, but consider that she was entitled to conclude as she did, in particular considering the observations made by Mr Horrock at paragraph 4.13 of his report. The judge clearly gave careful consideration to the best interests of the children and their close relationship with the appellant and, whilst not expressly stated, it is plain from [76] that her conclusion was that it was in the children's best interests for the appellant to remain with them in the UK. Nevertheless she recognised that, whilst that was a primary consideration, it was not the only consideration, and she then assessed other relevant considerations including their support network in the UK and the availability of methods of contact with their father after his deportation.

20. As Mr Amunwa acknowledged, the judge's assessment of the "unduly harsh" test was conducted with reference to the guidance in MAB, whilst that case has since been found by the Court of Appeal in MM (Uganda) [2016] EWCA Civ 450 to have been wrongly decided, in favour of the more stringent test in KMO (section 117 - unduly harsh) [2015] UKUT 543. The test therefore required a wider assessment than the children's needs which included a proportionality assessment including a consideration of the appellant's criminal offending, relevant risks, and the public interest. That was indeed a matter properly recognised by the judge at [75] when she referred to the public interest in deporting criminal offenders.

21. Accordingly, for all the reasons cogently given by the judge, she was, in my view, fully entitled to conclude that the evidence did not demonstrate that it would be unduly harsh for the children to remain in the UK without the appellant. I find no errors of law in her decision on paragraph 399(a).

22. With regard to the assertion that the judge had failed to consider the evidence that the appellant and his ex-wife were back together, for the purposes of paragraph 399(b), it seems to me that the evidence did not demonstrate that that was the case. The evidence suggested no more than that the couple were considering the possibility of a future reconciliation but were awaiting the outcome of the deportation appeal before make any decisions (ISW report at 3.11 and 3.23). In fact the appellant's witness statement, at paragraph 49, stated that it was unlikely that they would reconcile. There was certainly nothing in the oral evidence given at the hearing to suggest that they were back together. Accordingly the judge was perfectly entitled to conclude that there was no evidence of a genuine and subsisting relationship for the purposes of paragraph 399(b).

23. With regard to the fourth ground, the question of "very compelling circumstances", that was not a matter considered by the judge as she had already found that the criteria in paragraph 399A had been met.

24. Accordingly, for all of these reasons, I find no errors of law in the First-tier Tribunal's decision on the appellant's grounds relating to paragraphs 399(a) and (b) and I uphold the decision in those respects and dismiss the appellant's cross-appeal.

Secretary of State's Appeal

25. I do, however, find merit in some of the Secretary of State's grounds of appeal.

26. Mr Melvin properly conceded that the first ground, in regard to paragraph 399A(a), was not the strongest, given the contents of [50] of the reasons for deportation letter in which it was accepted that the appellant had been lawfully resident in the UK for approximately 23 years at that time. In light of the view expressed in that paragraph, it is plain that the judge was perfectly entitled to conclude that the criteria in 399A(a) had been met.

27. Neither do I find any merit in the second ground relating to paragraph 399A(b), the question of social and cultural integration in the UK. The judge gave cogent reasons for concluding as she did in that regard at [80] of her decision.

28. However it seems to me that the judge erred in her findings on paragraph 399A(c) when considering whether there were any very significant obstacles to integration into Pakistan. It is of some concern that the judge, at [86], referred to "significant obstacles" rather than "very significant obstacles", although she set out the correct test at [81] and [83] and it is therefore questionable which test she applied. That is of particular significance when considering that the judge's conclusions at [86] were based on the appellant having lost all ties to Pakistan, whereas the evidence was of extended family members remaining in Pakistan. Although First-tier Tribunal Judge Martins' decision was set aside, the evidence that was before her is not excluded and may be considered, and I note that there was reference in that decision to extended family members at [57], [98] and [118]. That does not appear to be a matter fully and properly considered by Judge O'Garro and neither did she give consideration, or proper consideration, to the appellant's language and cultural ties to Pakistan. Her decision appears to have been made with reliance on the more restrictive test in Ogundimu (Article 8 - new rules) Nigeria [2013] UKUT 60 applicable to the old version of paragraph 399A rather than the wider consideration envisaged in the revised paragraph 399A(c).

29. Furthermore, I find myself in agreement with Mr Melvin's submission that the judge's assessment of paragraph 399A(c) ought to have included, but failed to include, any consideration of the public interest and the negative aspects of the appellant's conduct. The recent cases of MM (Uganda) and MA (Pakistan) [2016] EWCA Civ 705 make it clear that a holistic consideration, including a consideration of the public interest, has to form part of the assessments in paragraph 399, and so too it ought to have formed part of the judge's assessment of paragraph 399A. I do not agree with Mr Amunwa that the judge's previous references to the appellant's criminal offences and to the public interest demonstrate that these were matters taken into consideration when making her findings on paragraph 399A(c) later on in her decision.

30. For all of these reasons I find that the First-tier Tribunal's decision to allow the appeal on Article 8 grounds, with reference to paragraph 399A, has to be set aside and re-made. The Secretary of State's appeal is therefore allowed. I set aside the decision allowing the appeal under paragraph 399A. The judge's findings on paragraph 399(a) and (b), and her findings on paragraph 399A(a) and (b) are preserved.

31. The appellant's appeal will therefore be listed for a resumed hearing in the Upper Tribunal in order for the decision to be re-made on paragraph 399A and, if the criteria in paragraph 399A are found not to have been met, on paragraph 398 and the question of "very compelling circumstances".

Appeal hearing and submissions

12. The appeal then came before me for a resumed hearing on 6 December 2016, to re-make the decision on paragraph 399A(c), as to whether there would be very significant obstacles to the appellant's integration into Pakistan, and, if relevant, whether there were very compelling circumstances over and above those described in paragraphs 399 and 399A, for the purposes of paragraph 398 of the immigration rules.

13. Further oral evidence was given by the appellant, his ex-wife and his sister to address the above questions.

14. The appellant, when asked how familiar he was with the culture in Pakistan, said that he was more familiar now than previously as he was now a practising Muslim and was learning the basics of the culture through his mother and cousins. Previously he had not understood why men and women were kept separate, since he had grown up mixing with his brothers and sisters, and his male and female cousins. He now understood that there were good reasons for separating them. However he believed that he would feel like an outsider if he returned to Pakistan, as he had done when he visited previously, as the country was poor and corrupt and he would not know who to trust. His relatives in Pakistan were poor and would not be able to help him. He had maternal and paternal uncles in Pakistan, with their families, but he only spoke to them if he was at his mother's house and she was speaking to them. It would be possible to strengthen his bonds with them but they could not support him financially and he would be a burden on them. One uncle had had to rely financially upon his daughter's husband's family as he could not support himself and so he (the appellant) could hardly ask him for help. The appellant said, further, that he could speak conversational Urdu but could not read or write the language and so would have to get people to help him in Pakistan and would not be able to progress quickly. He agreed that he could use his skills as a mechanic in Pakistan even if he could not read or write in Urdu.

15. When cross-examined by Mr Melvin, the appellant said that he lived at his mother's house and was supported by his parents, although he only required food and accommodation. He had stopped drinking and smoking. He had many family members in the UK but they could not assist him financially in Pakistan as they had their own debts here. His parents had nothing to give him financially but could only assist by guiding him by contacting his uncles. He had been attending the mosque for about six to seven months. He had been to Pakistan only twice, in 2006 and 2008 for family weddings, and his mother had stopped going there since her mother died in 2013/14. The appellant confirmed that he now accepted that the culture of Pakistan, in segregating men and women until marriage, was the correct way. In response to Mr Amunwa's further questions, the appellant said that it was best for his children if he remained in the UK. He was able to guide them in regard to their school life and education and keep them safe, as he had been through the education system in the UK himself, whereas his ex-wife was not familiar with school life here.

16. The appellant's sister, Samia Rabbani, then gave her evidence, confirming that she had come to the UK with the appellant when they were young, when they had very little English and associated with the Pakistani community here. She said that the appellant would find it difficult to cope in Pakistan as he had limited knowledge of Urdu and did not know his uncles very well. She would not have spare money to send him if he was in Pakistan as she had a family to support here. When cross-examined, she said that the appellant did not know the system in Pakistan and so would find it difficult to work there.

17. Finally the appellant's former wife, Andrea Mahboob, gave her evidence. She said that the appellant had little to do with his family in Pakistan and would only speak to them when he was at his mother's house. If they visited any family abroad it was her family in Hungary as it was closer and in any event the appellant's brothers and sisters were in the UK. It would be undescribably hard if he had to leave the UK and she did not know how she was going to be able to cope with teenage children without their father around. It was a huge benefit having him living close by and he was very close to his children. She had never been to Pakistan and knew nothing about the Pakistani culture.

18. Both parties then made submissions.

19. Mr Melvin submitted that there were no very significant obstacles to the appellant integrating in Pakistan. He could speak the language and could work as a mechanic. He was now a practising Muslim. It was not accepted that his large extended family in the UK would not be able to provide some initial assistance when he returned to Pakistan. There were no very compelling circumstances outweighing the public interest for the purposes of paragraph 398 and outside the rules, with reference to the judgment of the Supreme Court in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60. The situation had changed since the independent social worker's report, with the appellant's return to Islam, and great weight should be placed on the appellant's offending and the fact that he was a medium level offender. The appeal should be dismissed.

20. Mr Amunwa relied on the judgement in Kamara v SSHD [2016] EWCA Civ 813 in relation to the question of "very significant obstacles to integration". He submitted that the integration test was a "broad evaluative judgment" in which it was relevant that the appellant would be an outsider in Pakistan. He had spent the majority of his life in the UK and had no one readily available to guide him in Pakistan, where it was a very different environment to what he was used to. He was illiterate in Urdu and that would affect his ability to cope there in terms of finding accommodation and employment. His extended family in Pakistan would not provide an active support network, having never made regular visits to the UK or experienced any intensive contact. Mr Amunwa relied on the "balance sheet" approach advocated in Hesham Ali, and submitted that whilst the best interests of the children fell short of meeting the "unduly harsh" test, their separation from their father would nevertheless be harsh. He relied on the independent social worker's report in that respect. In addition, the appellant was significantly rehabilitated, he had a supportive relationship with his ex-partner and lengthy residence in the UK. There were therefore weighty factors in favour of the appellant and the appeal should be allowed.

Consideration and findings

21. The issues in re-making the decision in the appellant's appeal are narrow and concern the question of whether there would be very significant obstacles to his integration into Pakistan for the purposes of paragraph 399A(c), whether there are very compelling circumstances over and above those described in paragraphs 399 and 399A, for the purposes of paragraph 398 of the immigration rules, or whether there are any other features outweighing the public interest outside the immigration rules, pursuant to the decision in Hesham Ali.

22. Turning first of all to paragraph 399A(c), which is reflected in Exception 1 in section 117C(4)(c) of the Nationality, Immigration and Asylum Act 2002, I do not consider that the appellant has succeeded in demonstrating that there would be very significant obstacles to his integration in Pakistan. The strength of his case in this regard lies in his length of residence in the UK and the fact that he has lived in this country since the young age of 11 years and would thus be returning to a country with which he has limited familiarity (having visited only twice) and which has a different language, system and culture to that to which he has become accustomed in the UK, and furthermore that his close family members, including his children, all live in the UK rather than Pakistan. These are of course weighty matters and indeed led Judge O'Garro to allow the appeal.

23. However, "very significant obstacles" means something more than difficulties, or even significant difficulties. In this case, the appellant spent the first 11 years of his life in Pakistan and attended school there for 5 years (as indicated at [5] of his first witness statement of 18 November 2014). As he explained at [8] of that witness statement, after moving to the UK his family lived within their own community where they spoke their own language. It seems to me that the appellant has been less than truthful in respect to his account of his language ability, claiming in his most recent witness statement, at [12], that he spoke the language at a "barely conversational level", which is clearly untrue and was contradicted by the evidence given at the hearing and by the indication in the evidence given in his previous statement at [8] and [9]. I also find it difficult to accept that, having spent 5 years at school in Pakistan until the age of 11, he is currently illiterate and unable to read or write Urdu, as he claims, and I consider that that is also untrue, or at least an exaggeration. He clearly speaks the language and would have no problem communicating in Pakistan. The appellant accepted that he would be able to utilise the skills attained in the UK as a mechanic and I consider, therefore, that he should not have problems finding employment in Pakistan, whether or not he can read and write in Urdu. He has extended family in Pakistan, namely uncles and aunts and cousins, who could guide and assist him in that and other respects. Whilst he claims to have had limited contact with that extended family, the reliability of that claim is somewhat undermined by his attempt to underplay his language ability, but in any event it is his case that he has communicated with those family members when at his mother's house and he accepted himself that he would be able to strengthen the family bonds if he was to return to Pakistan.

24. The problem which the appellant identified in particular was that his extended family in Pakistan did not have the financial means to support him and he feared becoming a burden upon them. However, whilst the claim in the evidence was that his family members in the UK could not provide him with financial support, I see no reason why they could not provide the limited assistance required in the short-term before he was able to earn his own living through working as a mechanic or otherwise. Whether or not his extended family in Pakistan have limited financial means, it is clear that, and I find that, there is a support network available to him in terms of initial accommodation and guidance. As regards familiarity with the culture, it is the case that the appellant has already returned to the religion and religious culture which exists in Pakistan and he accepted himself that he now understood and accepted the cultural norms that he had previously not espoused, such as the separation of male and female relatives.

25. Mr Amunwa, in his submissions, accepted that the concerns in regard to integration in the appellant's case were in effect now limited to language and lack of support network. However, for the reasons given, I do not agree that either present significant obstacles, and certainly not very significant obstacles, to integration. I consider the appellant's circumstances are entirely different to those of the appellant in Kamara who had no knowledge of the local languages, no familiarity with the cultural norms and no family ties in his country of origin. On the basis of the broader evaluative judgment suggested in that case, it seems to me that, in terms of the approach in [14], the appellant will be enough of an insider to have a reasonable opportunity to be accepted in society in Pakistan, having an ability to communicate in the language, an identification with and understanding of the religion and culture, the skills to enable him to find employment and the support (even if not financial) of extended family members. I do not, therefore, accept that there would be very significant obstacles to the appellant's integration in Pakistan and do not accept that he meets the criteria in paragraph 399A(c).

26. Turning to "very compelling circumstances over and above those described in paragraphs 399 and 399A", I find again that there are none. It has already been found, for reasons fully and properly given, that it would not be unduly harsh for the appellant's children to be separated from their father and for them to remain in the UK with their mother upon his deportation. The appellant's children's best interests and the report of the independent social worker have been considered in some detail by Judge O'Garro in her decision and I have provided reasons for upholding her decision. I do not, therefore, consider it appropriate to repeat the findings made. Indeed, recent case law has particularly emphasised the weight to be given to the public interest in cases concerning foreign criminals despite the best interests of the children.

27. Taking account of all relevant factors in this case, including those set out in section 117B and C of the 2002 Act, and giving weight to the appellant's length of residence, close family and other ties and integration into this country, his lengthy absence from Pakistan since childhood, his relationship with his children and their best interests, the reasons given for his criminal offending and his assurances that he would not re-offend, the low risk of re-offending and his efforts towards rehabilitation, but also considering the nature and extent of his criminal convictions and his offending history, and the weight to be attached to the public interest, it seems to me that there is nothing sufficiently compelling in the appellant's circumstances or those of his children or other family members to outweigh the significant public interest in his deportation for the purposes of paragraph 398 of the immigration rules.

28. In Hesham Ali the Supreme Court held that the immigration rules were not a complete code and I have therefore considered whether there is any other aspect of the appellant's case which would outweigh the public interest in his deportation. For the reasons already given, I find that there are none. Accordingly I consider that the appellant's deportation would not be disproportionate and would not breach his human rights. The exceptions to deportation set out at section 33 of the UK Borders Act 2007 therefore do not apply.

DECISION

29. The making of the decision of the First-tier Tribunal involved an error on a point of law in relation to its findings on paragraph 399A, and the decision has accordingly been set aside in that respect. I re-make the decision by dismissing the appellant's appeal on all grounds.

Signed Date

Upper Tribunal Judge Kebede