Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01224/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 March 2017
On 26 April 2017

Before

Mr H J E LATTER
DEPUTY UPPER TRIBUNAL JUDGE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

o c
(ANONYMITY DIRECTION made)

Respondent

Representation:

For the Appellant: Mr A Melvin, Home Office Presenting Officer
For the Respondent: Ms S Bassiri Dezfouli, Counsel, Greenland Lawyers LLP (London)

DECISION AND REASONS

I make an order under rule 14(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the appellant or any members of his family. This order applies both to the appellant and to the respondent. Failure to comply with this order could lead to contempt of court proceedings.

1. This is the resumed hearing of an appeal by the Secretary of State against the decision of the First-tier Tribunal issued on 28 July 2016 allowing the appeal by the applicant against the decision made on 17 June 2014 to make a deportation order against him. In a decision issued on 11 October 2016 the Upper Tribunal (UTJ Rintoul) found that the First-tier Tribunal had erred in law such that the decision should be set aside.

2. Directions were given for the decision to be re-made in the Upper Tribunal but the hearing on 22 November 2016 had to be adjourned as the witnesses had been advised that they need not attend. Further directions were given for the hearing to be relisted on 17 January 2017 but again the appeal had to be adjourned as the documentary evidence had not been properly collated and the hearing was duly relisted for 16 March 2017. I will refer to the parties as they were before the First-tier Tribunal, the applicant as the appellant and the Secretary of State as the respondent.

3. When setting the decision aside UTJ Rintoul indicated it would be necessary to address the following issues in re-making the decision:

“(a) Whether the appellant is a persistent offender?

(b) If so, what is in the best interests of the children and whether 399(a)(ii) is met?

(c) If not, whether there are any very compelling circumstances over and above the Immigration Rules such that the deportation should not proceed.”

To set these and other relevant issues in their proper context I will need to summarise the background to the appeal.

Background

4. The appellant is a citizen of Jamaica born on 25 December 1987. He first came to the UK on 24 March 2002 with his brother to join his mother who had herself entered the UK in 1998. He was granted indefinite leave to remain on 20 May 2006 as a dependant of his mother. The appellant has three children from two different relationships. A son, K, born on 22 November 2011 and a daughter, A, born on 29 November 2013 who live with their mother, Ms T. The appellant also has another child, a son R, born on 26 October 2013 who lives with his mother, Ms S. She is pregnant with another child with the appellant, due to be born in April. The appellant regularly sees all three children. He lives with his mother and he has three siblings all living in the UK.

The Criminal and Procedural Background

5. Between 2006 and 2012 the appellant was convicted of nine offences. On 26 September 2006 the appellant was convicted at Horseferry Road Magistrates’ Court of resisting/obstructing a constable and possession of cannabis and received twelve month’s conditional discharge, on 3 August 2007 at Thames Magistrates’ Court of having an article with a blade and possession of cannabis and was fined and received a community order with a supervision requirement for six months, on 1 February 2008 at Waltham Forest Magistrates’ Court for breach of the community order and received a continuation of the community order and on 17 January 2009 he was arrested at Gatwick Airport on re-entry to the UK from Jamaica in respect of a pro active operation between 26 and 27 November 2008 when he sold a police officer a quantity of drugs and on 16 February 2009 he was convicted at Waltham Forest Magistrates’ Court of the offence of supplying cannabis and was sentenced to six weeks’ imprisonment.

6 As a result of that conviction the appellant was served with notice of liability for deportation on 25 May 2009 and subsequently a notice of a decision to deport him on 20 August 2009. His appeal was heard by a panel of the Asylum and Immigration Tribunal. The Tribunal found that the respondent’s decision was disproportionate and would breach article 8 and the appeal was allowed accordingly in a decision issued on 2 December 2009. An application by the respondent for reconsideration was refused by the Tribunal in a decision dated 14 January 2010 on the basis that although the merits of the matter were finely balanced the grounds for consideration amounted more to an argument as to merit rather than as establishing any material error of law.

7 On 23 April 2010 the appellant was found in possession of cannabis and an offensive weapon and on 21 May 2010 he was sentenced at Snaresbrook Crown Court to a total sentence of sixteen weeks. Following that conviction, the respondent wrote to the appellant on 24 June 2010 indicating that she had decided not to take any deportation action on that occasion but warned him that if he should come to any adverse attention in the future she would be obliged to give further consideration to the question of whether he should be deported.

8. The appellant’s final conviction was at East London Magistrates’ Court on 21 November 2012 for possession of cannabis when he was given a twelve month conditional discharge. The appellant was subsequently issued with a notice of intention of liability for deportation on 15 November 2013.

9. On 4 June 2014 the appellant was involved in a serious road traffic accident when a passenger in a friend’s car. He has no recollection of the accident but woke up in hospital with severe pain and was told by family members about the accident. In the appellant’s bundle there is a medical report dated 30 June 2016 from a consultant neurologist dated 4 June 2014 with a supplementary report dated 30 June 2016 and a neuropsychological report from a consultant clinical psychologist dated 30 August 2016. It appears that the car was being driven by the appellant’s friend at high speed and collided with a stationary bus. The appellant suffered a severe head injury with a small subarachnoid haemorrhage and frontal contusions, also sustaining injuries to his neck, right knee and ankle.

10. On 17 June 2014 the respondent decided to make a deportation order. An appeal against this decision made was allowed by the First-tier Tribunal in a decision issued on 19 August 2015 but that decision was set aside by the Upper Tribunal on 20 February 2016 on the basis that the First-tier Tribunal had erred in law in its assessment of whether it would be unduly harsh to expect the children to remain in the UK without the appellant. The appeal was remitted to the First-tier Tribunal for reconsideration by way of a full rehearing which took place on 14 and 15 July 2016 and is the decision currently under appeal.

Further Evidence

11. At the hearing before me I heard oral evidence from the appellant, the mothers of his children, his mother and a pastor with whom he is in regular contact. There is a consolidated bundle of documents (“A”) on behalf of the appellant containing these witness statements together with other relevant documents indicated and paginated 1 – 252 and a bundle of documents (“R”) from the respondent.

The Oral Evidence

(i) The appellant.

12. The appellant adopted his witness statement at A1 – 8. It is undated and the appellant could not remember the date when it was signed but confirmed that it was his statement. He confirmed that he has three children K and A who live with their mother and R who lives with him although he explains in para 10 that R’s mother works full-time and therefore he has to take and pick him up from nursery. She is expecting his fourth child. He explained that he has contact with his other two children on a fortnightly basis and he has strong bonds with all his children. Whenever his oldest child gives cause for concern, he is the first person his mother calls to sort out any problems. The appellant’s statement responds to evidence relied on before the First-tier Tribunal from the crime reporting information system and criminal intelligence reports of the Metropolitan Police under Operation Nexus but those issues have not been pursued at this hearing

13. He says that his relationship with his children will be adversely affected as he will not be physically present in their day-to-day lives if he is deported and this will adversely affect their welfare and wellbeing. The relationship between his children will also suffer as he would not be able to bring them together and ensure they are raised as siblings despite being born to separate mothers. He says he has shown remorse for his actions in the past and is not a repeat offender, his last offence being in 2012 for the possession of a class B drug. He confirmed that Ms S is expecting his fourth child in about two weeks. He takes the children swimming, to the park and gets them together.

14. If he is not here the children will not see each other. As far as his eldest child, K, is concerned sometimes his mother phones him with problems about his behaviour and when K hears his voice he changes his behaviour. He fears if he is removed they will not have a father figure with them. He did not have a father figure. He left Jamaica when he was young and did not know his dad. He explained that he wanted to be a good dad and lead his children in the right way. He spent time with his kids and they kept him happy. He said that he had no other relatives in Jamaica. He had an aunt but she had died.

15. In cross-examination he repeated that he loved his kids and wanted to be with them. It was put to him that he had committed his last offence after his first child was born. He said he could not remember that but when the dates were put to him he accepted that that was true saying that it was his last offence and he was a new father at that time.

16. He lives with his mother and younger brother aged 15. His sister was at university and another brother was living with his wife in Brixton. He saw his children K and A every two weeks when they came to stay at the weekend. He had been on school trips with K. Ms T brought them on a Friday evening and he took them back on Sunday night. He helped to pay for things for the children, his mother gave him the money. He explained that he saw R every day saying that he had lived with the appellant since his birth. He was not a in relationship with Ms S but they were close. He repeated that he had no relatives in Jamaica. He explained that since leaving school he had studied painting, decorating and roofing. He had been to one college and then another but had had to show proof that he was allowed to be in this country.

17. He was asked about the accident of 4 June 2014 and said that he could not remember why the driver was speeding or what had happened. There was a compensation claim. He said that he did not take drugs anymore. He was asked about the medical reports which referred to him still smoking marijuana three or four times a day. The appellant said that that was then, when he needed to relax. He could not work and had to stay in his house. He could not remember when he stopped using drugs. He was asked about whether he had assaulted Ms S. He accepted that this was right and it had been after the accident. There had been no Social Services involvement with the children. He had not had any professional help about smoking drugs.

(ii) The evidence of Ms T.

18 Ms T adopted her witness statement of 6 February 2017. She is a British citizen and she has two children by the appellant, K and A. They are British citizens. She had met the appellant in 2009 and their relationship had become serious. The appellant was a good father to the children. He made sure he picked them up every other weekend and they were able to keep company with their half-brother, R. It was her view that the appellant had learnt his lesson, shown remorse and regretted the difficulties he had got the family into. It was important that he be allowed to remain in the UK to continue playing a role in the lives of his children. He was very good and very much involved with the children and his bond with them was unbreakable. If he was deported to Jamaica it would have a big effect on the children particularly K. She described the appellant as a proper family man with a mother, two brothers and a sister and his bonds with his mother and sibling would also be broken.

19. In oral evidence she confirmed that the appellant saw the children every two weeks and that occasionally in the week he came down to school to pick them up. She described K’s behaviour as erratic and at an age when his mother’s voice did not matter, so she would call the appellant and K listened to him. She explained that she did not have any relationship with R’s mother and it was the appellant who was able to bring the three children together.

20. In cross-examination she confirmed that she lived with her children and no-one else lived there. She worked and her hours were flexible. Her mother did not see her children regularly but her sister saw them from time to time. There had been no Social Services involvement with the children. She was asked about whether the appellant continued to use drugs and replied that she would say it was for personal use but if he smoked a spliff when her children were with him they would not be under the same roof. She had seen nothing in his behaviour giving her cause for concern.

(iii) The evidence of Ms S.

21. Ms S confirmed that her witness statement dated 6 February 2017 was correct and accurate. She is a British citizen who entered the UK at the age of 4. The appellant is the father of her son R, born on 26 October 2013. They had met three years ago and they grew very close. She described the appellant as a good father who adored children and always wanted to be with them. He had developed a strong bond with R. The effect of the deportation on the children would be enormous and she did not think it was in their interest for their father to be deported at a stage in their life when they need their father to be present. She explained that she was not in touch with her own family and because of the history between them she had moved away. They lived in Manchester and she had last been in contact six years ago. The appellant’s family had been there for her.

22. She described the appellant as a good father and a good person in general. He had a lot of contact with R. She explained that R went to nursery from 12.30 to 3.30 Mondays to Fridays. The appellant took them on Mondays, Wednesdays and Thursdays, whereas she took them on Tuesdays and Fridays. She lived ten minutes away from the appellant’s mother’s house. She was pregnant, the appellant was the father and the baby was due in April. She lived alone with R and he loved to be around the appellant’s family. R was very close to the appellant and asked about him every day.

23. She said that the appellant’s accident had not led to him behaving in a way which would worry her but he did forget things a lot and she had to remind him what to do and be very specific about arrangements. She accepted that the appellant had assaulted her since the accident and said she had ever seen him like that. He had lashed out without knowing himself. She had spoken to the doctor who had spoken to the appellant and he had had therapy sessions. If the appellant had to leave the UK, this would affect R because of the additional pressures on her with another child coming along. It would cause a lot of grief to R to lose his relationship with the appellant.

24. In cross-examination she said that she could not remember when the assault took place save that it was straight after the accident. The appellant had been on antidepressants. He did not live with her but he did visit regularly. They had not cohabited during the last year. She did not know whether he smoked marijuana or what was going on in his life. After she had been assaulted, Social Service had come to see her to check the position but there had been no other involvement. She had not had any concerns about R being with the appellant or his grandmother.

(iv) The appellant’s mother.

25. The appellant’s mother confirmed her signed but undated statement at A13 – 15. She did not know where the appellant’s father was as she had last seen him in 2005 and was not in contact with him. She was aware of the appellant’s convictions because they were committed when he was under age and because he lived under her roof, the police had always contacted her. She did not want to make excuses for his cannabis use but knew that he was always conscious of not having a father figure in his life and this may have affected him adversely and he began to seek attention but to use the wrong source. Seeing him interact with his children showed that he was seeking to make amends and give his children something he had never had, a father who was present. He was close to his brothers and his sister and he loved his own children tremendously and was a very good father. He saw R more frequently because his mother worked and he took him to school and spent a lot of time with him both at S’s house and at their home. She said the appellant would not be able to cope if he were to leave the UK and go to Jamaica. It would break his heart to leave his children and family and the aunt he knew there was now deceased.

26. She confirmed that she saw her grandchildren every other week and when the three of them were together. She saw R more frequently. She would say that the appellant was a good father to his children who looked after them, read stories, took them to the barbers and to school. She said that she knew that he smoked cannabis because of stress and depression and that he had been smoking for the past nine years. She supported the appellant financially when the children were visiting, getting the shopping and clothes until he was able to work and provide for himself. He had briefly worked after he had left school in a record shop but now did not have an NI number. They had not got one when he was 16. After the accident his personality had changed. His short-term memory was affected and she tried to support and uplift him. She has another sister who lives in Jamaica. She has her own children and responsibility and she could not say whether her sister would help. If he had to go to Jamaica, his children would be affected a lot.

27. In cross-examination she said the sister in Jamaica was age 52 and had a husband. They had four boys but they were not living there. Their father lived in America and they often travelled there. The appellant last went to Jamaica in 2009, although she had returned last year to bury a sister. She confirmed that the appellant had been back to Jamaica on three occasions and that they had visited the sister still living there. She said she had not seen the appellant smoking but she was able to smell it on clothes. He did not smoke in her house. She tried to encourage the appellant to go to church and she also tried to encourage him generally. Following the car accident in 2014 she agreed with the doctors that the appellant had a short-term memory loss. She knew there was a problem and that it would take time to heal. She had to encourage him to take his medicine. The appellant had tried to harm himself in the first three months after his accident but she could not recall anything else more recently. She never felt the children were at risk with him.

(v) The evidence of Mr M.

28 Mr M explained that he is a pastor and has known the appellant for over two years. He got to know him as his mother was a member and prayer partner in his ministry. He had seen the appellant regularly and advised him in a ministerial capacity. He confirmed that there had been significant changes in the appellant’s behaviour. The appellant had told him about his past offences and he had worked closely with him and could confirm that he had not reoffended and had abstained from using cannabis.

29 After the appellant’s accident there had been a high degree of frustration because of memory loss when he would get agitated and the frustration came out. He was aware of the appellant’s past with the law and had spoken to him about the smoking. He said that the appellant had given that up and was embarrassed about it. He knew that every other weekend the appellant was with his grandchildren and that he lived close to R. He wanted his grandchildren to remain in close contact with each other. It was clear that the children got very excited when they saw him and they just loved their father. If the appellant had to return to Jamaica, it would be the toughest thing that he had experienced. His children were like his therapy and to remove him would be devastating both to him and the children.

30. In cross-examination Mr M explained that he belonged to an independent Pentecostal Church. The appellant attended church and also came to Friday night prayer meetings and he had given up cannabis two years ago. He had been with the appellant to medical appointments, to the occupational therapist and when the appellant had had to receive emergency treatment in Central London.

Submissions

31. Mr Melvin relied on the respondent’s written submissions. He submitted that the appellant was a persistent offender. He had offended very shortly after succeeding in his appeal against deportation and again after he had received a warning letter from the respondent. There had been a consistent thread to the offending, being in possession of cannabis with additional instances of possessing bladed weapons. It was accepted that the appellant had contact with his children and was the father of a child soon to be born, but he did not live with his children and there were people in the UK who would be able to take care of them. It had not been shown that it would be unduly harsh for the children to remain in the UK after the appellant was deported. He submitted there was evidence that the appellant remained a regular user of prohibited drugs. This was still a criminal offence. The appellant had an aunt in Jamaica and there was no reason to believe she would not be able to help him reintegrate into life in Jamaica. He submitted that there were no compelling circumstances justifying a finding that deportation would be in breach of article 8.

32. Ms Bassiri Dezfouli relied on her skeleton argument. She made the point that the appellant’s recent offences would be considered spent under the Rehabilitation of Offenders Act. The maximum prison sentence the appellant had received was one of sixteen weeks. The offence in 2012 had taken place when police had gone to his home to investigate and found two spliffs. He had been given a conditional discharge and that indicated the lack of seriousness of that offence. When the position was considered as at the date of hearing, the appellant’s last offence was in 2012 and there had been significant changes in his life. She submitted the appellant was now a changed person. His former partners had both come to the hearing and had spoken well of him. She submitted that the appellant could not be considered a persistent offender as he had not offended since 2012 and most of the offences were pre-2009. Even if the appellant still smoked cannabis occasionally, it was not in the presence of any of the witnesses.

33. She submitted that the best interests of the children had to be taken into consideration and in particular the fact that K had some behavioural problems. The consequences for the children if the appellant was deported could properly be categorised as unduly harsh. There was no relationship between Ms T, mother of K and A, and Ms S, the mother of R, and the children would not be able to see each other. The appellant had been involved in a very serious car accident which had affected his physical and mental condition and he still needed the support of family and friends. She submitted that the appellant was very remorseful for his previous behaviour but he was continuing to be supported by his family who had always been to hearings with him. She submitted that it was not proportionate now for him to be removed from the UK when he was beginning to find his feet and realise what his responsibilities as a father were.

Assessment of the Issues

34. I will first consider the issues relating to deportation under the provisions of paras A398 – 399A of HC 395 as amended. The appellant does not fall within the provisions of para 398(a) or (b) but the respondent argues that he does fall within para 398(c) which provides:

“the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, … they are a persistent offender who shows a particular disregard for the law”.

If the appellant falls into this category I must consider whether para 399 or 399A applies and, if not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paras 399 and 399A.

35. The meaning of persistent offender was considered by the Upper Tribunal in Chege (“is a persistent offender”) [2016] UKUT 00187 where the Tribunal said:

“[i] The question whether the appellant ‘is a persistent offender’ is a question of mixed fact and law and falls to be determined by the Tribunal as at the date of the hearing before it.
[ii] The phrase ‘persistent offender’ in s.117D(2)(c) of the 2002 Act must mean the same thing as ‘persistent offender’ in para 398(c) of the Immigration Rules.
[iii] A ‘persistent offender’ is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or that the continuity of the offending cannot be broken. A ‘persistent offender’ is not a permanent status that can never be lost once it is acquired, but an individual can be regarded as a ‘persistent offender’ for the purpose of the rules and the 2002 Act even though he may not have offended for some time. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date. Each case will turn on its own facts.”
36. It is not in dispute that between 2006 and 2012 the appellant was convicted of nine offences. In his decision dealing with the error of law UCJ Rintoul said at [14] that it was beyond argument that the appellant was certainly, until 2012, a persistent offender. The offences were committed on seven different occasions albeit for ten different offences but it could not be rationally said that this did not amount to persistent offending not least because the offending was of the same nature which was possession of cannabis albeit that the two offences involving bladed weapons were in addition to that and that there was a consistent thread of repeat offending throughout. I agree entirely with this comment but of course the issue for me to assess is whether at the date of this hearing the appellant still falls within the category of a persistent offender. Before the First-tier Tribunal there was evidence in reports obtained by the Metropolitan Police under Operation Nexus (R.H1-7) but the judge made a clear finding (at [151] of his decision) that the material failed to show that the appellant was someone with very serious links to organised crime or to gang involvement or anything of that nature. The respondent has not sought to reopen that matter and I have discounted that evidence in my assessment of the issues in this appeal.
37. I take into account that the definition of persistent offender includes showing a particular disregard for the law. So far as the appellant is concerned, this is apparent not only from his offences but also his lack of response to the sentences imposed. His first sentence was a conditional discharge but he offended again during that period. He was later given a community order but he breached that order and in 2009 he received a sentence of six weeks’ imprisonment. The respondent decided to make to make a deportation order but his appeal was allowed on 2 December 2009. Nonetheless, on 21 May 2010 the appellant was sentenced to sixteen weeks’ imprisonment for possession of an offensive weapon and for possession of a controlled drug, apparently heedless of the opportunity given to him by the Tribunal in December 2009 to show that he had changed his ways. The appellant was then sent a warning letter by the respondent but again on 21 November 2012 he was convicted of possession of a class B controlled drug. It is correct that that offence by itself was not a serious offence but when looked in context confirms the appellant’s persistent disregard for the law at that time.
38. I must set against this the fact that the appellant has not reoffended since 2012 when he received a conditional discharge and did not breach that order and consider whether the appellant has changed his ways or had a change of heart such that he has ceased to be a persistent offender. The appellant said in evidence that he had given up using cannabis but could not remember when but in his evidence Mr M said that this was two years ago. This evidence is inconsistent with the evidence of the appellant’s mother, which was more frank on this issue when she referred to him smoking because of stress and depression and Ms T who sought to make the point that his smoking was for personal use and she would not tolerate it in the presence of her children. It is also inconsistent with the medical evidence which refers to the appellant’s use of cannabis. I find that the appellant was seeking to mislead me about his cannabis smoking. I accept that he does not smoke in front of the witnesses and I think this explains Mr M’s attempt to give a date when he thought the appellant gave up but I am not satisfied that Mr M has seen the whole picture.
39. When assessing the appellant’s evidence, I take into account the fact that he has sustained serious injuries in a car accident and has suffered brain damage and short term memory loss and I accept that its consequences have caused him stress and depression which has caused upsetting behaviour such as the assault on Ms S. Nonetheless, it does explain the appellant’s untrue assertions as I find them to be about his use of cannabis. Whilst I accept much of his evidence about his relationship with his family and children, I find that he was willing to mislead when he thought it to his advantage to do so not only about his smoking but also on the issue of whether he had any relatives in Jamaica, denying that this was the case when he has an aunt there. I do not believe that this was an oversight on his part. Looking at the evidence a whole and taking into account the very real efforts by his mother and Mr M to encourage and support him and the views of the witnesses about the appellant’s character and behaviour, which I accept are views they genuinely hold, I am not satisfied that the appellant has changed his ways and I therefore find that he still falls within the provisions of para 398(c) as a persistent offender and in these circumstances his appeal under the Rules requires an assessment of whether he can bring himself within the provisions of para 399 or 399(A).
40. I will consider first the provisions of para 399(a). I accept that the appellant has a genuine and subsisting parental relationship with his children under the age of 18 who are British citizens. I also accept the evidence about the nature and extent of his contact with his children. He sees them regularly and facilitates contact between K and A with R. It is not being argued that the children should live in Jamaica where the appellant would be deported and it would be unduly harsh for them to do so. The remaining issue is whether the appellant is able to meet the requirement of para 399(a)(ii)(b) of showing that it would be unduly harsh for the children to remain in the UK without him.
41. The issue of undue harshness has been considered by the Court of Appeal in MM (Uganda) v Secretary of State [2016] EWCA Civ 617. Laws LJ said as follows:
“22. I turn to the interpretation of the phrase ‘unduly harsh’. Plainly it means the same in s.117C(5) as in rule 399. ‘Unduly harsh’ is an ordinary English expression. As so often, its meaning is coloured by its context. Authority is hardly needed for such a proposition but it is anyway provided, for example by VIA Rail Canada [2000] 193 DLR (4th) 357 at paras 35 to 37.
23. The context in these cases invites emphasis on two factors, (1) the public interest in the removal of foreign criminals and (2) the need for a proportionate assessment of any interference with article 8 rights. In my judgment, with respect, the approach of the Upper Tribunal in MAB ignores this combination of factors. The first of them, the public interest in the removal of foreign criminals, is expressly vouched by Parliament in s.117C(1). s.117C(2) then provides (I repeat the provision for convenience):
‘The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal’.
24. 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 would 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.”
42. This authority therefore confirms that the assessment of undue harshness requires regard to be had to all the circumstances including the appellant’s immigration and criminal history. However, I must take into account as a primary consideration the best interests of the children. The proper approach has been set out by the Supreme Court in ZH (Tanzania) [2011] UKSC 4 and Zoumbas v Secretary of State [2013] UKSC 74. The children’s best interests are a primary consideration. They are not determinative but should be considered in advance of other matters and no other single consideration should be regarded as more important. As Elias LJ said in MA (Pakistan) and Others v Secretary of State [2016] EWCA Civ 705, it could not now be said that courts and tribunals were mandated to look at matters in any particular way such that it was an error of law for them to fail to do so, no doubt it would be usually be sensible to start with the children’s best interests but ultimately it did not matter how the balancing exercise was conducted provided the best interests were treated as a primary consideration.
43. It is in the best interests of the children for them to have proper contact with their father and with each other. As I have already said, I am satisfied that the appellant has a genuine and subsisting parental relationship with his children. He has regular contact with them seeing K and A every other weekend and occasionally during the week. He sees more of R as he lives closer and his mother works. I accept that he helps take the children to and from nursery school and that they are with him at his mother’s house on a regular basis. I also accept that the appellant has done his best to make sure that R sees his half-brother and sister.
44. Whilst I am satisfied that the deportation of the appellant to Jamaica would cause the children upset and distress and they will miss seeing their father, I am not satisfied that it will amount to undue harshness when looked at in the light of the circumstances as a whole. Whilst the children have regular contact with the appellant, they are not living with him. If he has to return to Jamaica, they will continue living with their respective mothers. So far as R and A are concerned, they will lose their regular fortnightly stay and contact with their father but they will be able to continue seeing his mother and his siblings. So far as Ms S is concerned, with another child being born shortly, she will have to make other arrangements about taking R to nursery and it may be more difficult but not impossible for arrangements to be made through the appellant’s mother so that R is able to see his half-brother and half-sister. I have no doubt that the appellant’s mother will want to continue seeing the children and will do her best to ensure that the children see each other. If the appellant is deported to Jamaica, this does not mean the end of all contact but it will be limited to indirect contact by letter, phone or internet but this can still be meaningful contact.
45. The appellant is not in a subsisting relationship with a partner and cannot bring himself within the provisions of para 399(b). In the appellant’s skeleton argument the issue of para 399A is raised and it is argued that the appellant has no social, cultural or family ties to Jamaica and that having left there as a child and not having an independent life in that country he is socially and culturally integrated into the UK and there would be very significant obstacles to his integration into Jamaica. I am not satisfied there is any substance in this ground. The appellant came to the UK when he was 14 and he is now 30. I accept that he is socially and culturally integrated in the UK but I am not satisfied there would be very significant obstacles to his integration into Jamaica. The appellant said in his own evidence that he had no close relatives there but it was clear from his mother’s evidence that he has an aunt there. I am not satisfied this was a memory lapse on the appellant’s part but whatever the explanation for his evidence there is an aunt and there is no reason to believe that she would not help him if need be. It is also clear that the appellant has visited Jamaica on three occasions albeit not since 2009. I am not satisfied that there is any substance in a submission based on private life under the provisions of para 399A.
46. As the appellant is unable to meet the requirements of paras 399 or 399A the provisions of para 398 require that public interest in deportation would only be outweighed by other factors where there are very compelling circumstances over and above those described in paras 399 and 399A. The issue of compelling and very compelling circumstances was considered by the Court of Appeal in NA (Pakistan) v Secretary of State [2016] EWCA Civ 662 where Jackson LJ said:
“28. The next question which arises concerns the meaning of ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’. The new para 398 uses the same language as s.117C(6). It refers to ‘very compelling circumstances, over and above those described in paras 399 and 399A.’ Paragraphs 399 and 399A of the 2014 rules refer to the same subject matter as Exceptions 1 and 2 in s.117C, but they do so in greater detail.
29. As we have indicated above, a foreign criminal is entitled to rely upon such matters, but he would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 (and in paras 399 or 399A of the 2014 rules), or features falling outside the circumstances described in those Exceptions and those paras, which make his claim based on article 8 especially strong.
......
33. Although there is no ‘exceptionality’ requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, would not be sufficient.”
47. I have already referred to the best interests of the children as a primary consideration and of course that must be properly considered when assessing whether there are very compelling circumstances. In Secretary of State v AJ (Zimbabwe) [2016] EWCA Civ 1012, Elias LJ said at [31]:
“I am not satisfied that the FTT did give appropriate weight to the public interest in deportation, notwithstanding its reference to the principles enunciated in MF (Nigeria). The later reference to the “significant weight” to be given to the relevant public interest suggests that the full rigour of the test was not appreciated. Even if I am wrong about that, in my judgment the FTT did not apply the article 8 proportionality assessment in accordance with the principles laid down in the authorities. It was not open to the FTT to find that the separation of the children from the father/stepfather was a compelling reason to allow the respondent to remain. Far from being an exceptional circumstance, this is an everyday situation as the authorities I have set out demonstrate. They show that the separating parent and child cannot, without more, be a good reason to outweigh the very powerful public interest in deportation. No doubt the FTT was right to say that these children would unfortunately suffer from the separation but for reasons I have already explained, if the concept of exceptional circumstances can apply in such case, it would undermine the application of the immigration Rules.”
48. I am not satisfied that there are circumstances in the present case which can be described as very compelling over and above those described in paras 399 and 399A. I take into account the fact the appellant was involved in a serious road traffic accident in 2014. It is clear from the medical reports that the accident was responsible for a moderate end of severe traumatic brain injury with extensive pre and post traumatic amnesia. The appellant’s present condition is described as having throbbing headaches with nausea and phonophobia occurring once or twice a week. He has a very poor memory even of discussions less than one hour previously and can feel lost and angry with outbursts of frustration. I am not satisfied that the fact of the accident and its impact on the appellant’s health, both physical and mental, is such as to amount to very compelling circumstances.
49. It is clear from the judgment of the Supreme Court in Hesham Ali (Iraq) v Secretary of State [2016] UKSC 60 that the Rules do not provide an exclusive code for the assessment of article 8 and that the obligation remains on the Tribunal to make its own assessment of the proportionality of deportation. Again in this context it is important that the best interests of the children are taken into account as a primary consideration and that the public interest as set out in the Rules is given proper weight. When considering the matter outside the Rules I must take into account the provisions of s117B and C of the Nationality, Immigration and Asylum Act 2002 as amended.
50. Insofar as these provisions apply to the appellant, he is able to speak English. He cannot be described as financially independent. In substance he is dependent upon his mother who referred to buying food and clothes when the children came to stay. However, there is no evidence to suggest that he has been a burden on taxpayers. His immigration status has been precarious since the respondent decided to make a deportation order. The issue of his relationship with his children has already been explored and it would not be reasonable to expect them to leave the UK. Section 117C(2) provides that the more serious offence committed by a foreign criminal, the greater is the public interest in deportation. In the present case the public interest arises from the fact that the appellant is a frequent offender.
51. I must also take into account the relevant Strasbourg jurisprudence. I have been referred to the Boultif criteria. These require consideration of the nature and seriousness of the appellant’s offences. In this case the seriousness lies in their frequency and in the appellant’s disregard for the law. After winning his deportation appeal, he committed another offence and was sent to prison. After receiving a warning letter, he committed albeit a lesser offence of being found in possession of cannabis. He has been in the UK since 2002. His last offence was in 2012 and it is correct that he has not committed any offences since then. However, one of the root causes of the appellant’s offences has been his use of cannabis and I am satisfied, in the light of the evidence to which I have already referred, that the appellant is continuing to use cannabis. I do not accept his evidence that he has stopped using it.
52. I have also considered whether the appellant’s accident has been such that he has changed his ways and will not reoffend but, as already set out, I am not satisfied that that this is the case. I have also considered the effect of the accident on the appellant and its impact on the way he is able to live. It has not affected his ability to look after his children when they visit. His mother described how he looked after them, read them stories and took them out although I note that Ms S referred to the need to be very precise in leaving him with instructions but neither she nor Ms T said that his behaviour gave them any cause for concern. I am not satisfied that the fact of the accident and its impact on the appellant is such as to make deportation disproportionate.
53. I take into account the children’s ages and the fact that they are UK citizens. I have already referred to their best interests and to the upset and difficulties which may follow from the appellant having to return to Jamaica. I am satisfied that the appellant does have social, cultural and family ties with the UK and far less strong ties with Jamaica. I have also taken into account the fact that the appellant’s removal would have an effect on other family members and a serious impact on the appellant to himself. I have also considered the lapse of time caused both by the appellant’s accident and the length of these proceedings but the delay has not been sufficiently unreasonable to have any significant bearing on the assessment of proportionality.
54. Whilst the appellant’s offences do not bring him within the provisions of paras 398(a) or (b), the public interest in deportation applies to persistent offenders who show a particular disregard for the law within para 398(c). I must give considerable weight to that policy which is set out in the Rules. Taking all the relevant matters into account I am satisfied that the public interest outweighs the countervailing considerations arising from the appellant’s family life in particular with his children. There are no compelling or exceptional circumstances which would make deportation disproportionate to a legitimate aim.
Decision
55. It has been found that the First-tier Tribunal’s decision was in error of law and has been set aside. I re-make the decision by dismissing the appeal against the deportation order on both immigration and human rights grounds. I have made an anonymity order as I am satisfied that this is a case where the children should not be identified.

Signed HJE Latter Date: 25 April 2017

Deputy Upper Tribunal Judge Latter