Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01337/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 21st November 2012
On 16th December 2013

Before

THE HONOURABLE LORD MATTHEWS
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
UPPER TRIBUNAL JUDGE REEDS

Between

BIDEMI Anthony OLUDARE
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs T White, Counsel instructed by Ali Sinclair Solicitors
For the Respondent: Mr G Saunders, Senior Presenting Officer

DETERMINATION AND REASONS
1. The Appellant is a citizen of Nigeria, born on 29th October 1975. He has been given permission to appeal against the decision of the First-tier Tribunal panel (Judge Kaler and Mr C P O’Brian) who in a determination promulgated on 2nd September 2013 dismissed his appeal against the Respondent’s decision that Section 32(5) of the UK Borders Act 2007 applied.
2. On 24th February 2012 at Northampton Crown Court the Appellant was convicted of conspiracy to do an act to facilitate the commission of a breach of UK immigration law by a non-EU person and obtaining the right to remain in the UK by deception. The Appellant was sentenced to a period of imprisonment of twelve months in length.
3. The judge’s sentencing remarks are as follows:-
“Mr Oludare, I have to sentence you for obtaining the right to remain in the United Kingdom by deception and the deception you practised was by going through a ceremony of marriage with a Dutch national in January of 2008. That is a serious matter as I am sure you know because it affects those who wish to get married genuinely and they feel that their marriages have been somehow besmirched by the fact that there are people who are prepared to conduct marriages in church for dishonest purposes. On the plus side, Mr Oludare, I accept every word Mr Kirk has said that you have been a very useful member of society. You have trained. You have worked. You have been paying national insurance and income tax and indeed you contributed towards a mortgage in Corby but I am afraid all those things cannot prevent me from passing what I regard to be an appropriate sentence here. This offence is so serious that only a sentence of immediate custody can be justified. The bracket, recommended by the authorities, is a bracket of twelve to eighteen months on a guilty plea. I put you at the bottom end of that bracket and sentence you to twelve months’ imprisonment. That will invoke the UK Borders Act 2007 which will result in your deportation. … At the end of the custodial term or perhaps during it you will be deported.”
4. The circumstances preceding the offence can be seen from the history. The Appellant entered as a student on 4th April 2003 having been issued with a student visa for the UK on 4th April in Paris (valid until October 2003). He was issued with a further student visa valid until October 2004 and leave to remain until 30th April 2007.
5. On 8th December 2007 he was served with an IS.151A as an overstayer and on 17th December 2007 he made a further application for leave as a student.
6. On 12th January 2008, he went through a ceremony of marriage with Diana Altagracia Olivieira, a Dutch national, to obtain the right to remain in the United Kingdom by deception. He was issued with a residence card based on that marriage to an EEA national.
7. It was not until 15th December 2011 that he was arrested in connection with having taken part in a sham marriage to avoid immigration control. This led to his conviction at Northampton County Court on 24th February 2012.
8. On 9th March 2012 the Appellant was sent a notice of liability to deportation. On 6th December 2012 a deportation order was signed against the Appellant and a decision was made that Section 32(5) of the UK Borders Act 2007 applied.
9. The Appellant exercised his right to appeal that decision and the appeal came before the First-tier Tribunal panel, consisting of First-tier Tribunal Judge Kaler and Mr C P O’Brian, at Taylor House on 28th August 2013.
10. The panel reminded themselves that this was an automatic deportation case and that it was not in dispute that the Appellant was a foreign criminal within the meaning of Section 32 of the UK Borders Act 2007, his deportation was deemed to be conducive to the public good and that the Respondent must make a deportation order in respect of him unless one of the exceptions set out in Section 33 of the Act applied. They also identified that in this case the Appellant’s rights under the Human Rights Convention would apply. They recorded that, contrary to the claim originally made for asylum, his claim under the Refugee Convention was now not being pursued.
11. The panel heard oral evidence from the Appellant and from a witness Pat Uche Okoh and heard submissions from each advocate present. The panel made an assessment of the evidence before them. The basis of the Appellant’s case was that he was the father of two children, Tamilolowa Gislaine Oludare (known as Tami) born on 22nd June 2007 and Jonathan (Nathan), born on 20th June 2012. The mother of Tami was Angela Ogbene Kanjal. Her immigration history is set out in the Notice of Refusal, namely that on 10th September 2003 she entered as a student with leave valid until 2007. An application for further leave to remain was refused on 3rd December 2007 against which she lodged an appeal but that was dismissed on 28th January 2008. Her rights of appeal were exhausted by 4th February 2008. On 26th January 2008 she married Koffi About, a Belgian national and was issued with a residence card on 5th August 2008 valid until 5th August 2013.
12. The mother of Nathan is Pat Uche Okoh. The Appellant and Ms Okoh were previously in a relationship during which time Nathan was born in June 2012. The Appellant was no longer in a relationship with either of the mothers of his children but it was his case that he continued to have contact with each of the children and had provided them with financial assistance.
13. It was common ground that the Appellant could not satisfy the provisions of either paragraph 399 or paragraph 399A on the particular facts of this appeal but the Appellant relied upon paragraph 398 relating to “exceptional circumstances” or in the alternative Article 8 “outside of the Rules” both on his enduring relationship with the two children resident in the United Kingdom.
14. The panel made the following findings concerning the Appellant’s relationship with each respective child. In respect of Tami, the panel noted that whilst they had a typed letter from the mother of Tami, Angela Kanjal, she had not attended at the hearing and the explanation given as to her non-attendance was found to be “unimpressive” by the panel and thus they attached little weight to her claim concerning the level of contact and relationship between Tami and her father. The panel found there had been no evidence of any contact between Tami and the Appellant prior to the Appellant’s arrest and detention and made a finding that he had sought to re-establish contact with her since his release. The panel placed weight on the evidence that despite his claim to have been in a relationship and exercising contact with Tami, in response to a letter from the Respondent, his legal representative stated that the mother’s address (Angela Kanjal) was unknown. They further took into account that whilst the Appellant claimed to be visiting the mother’s home every fortnight and slept there at times, he did not know if the father of Jason (a further child) also lived at their home and stated “Someone who visits the house as frequently as he claims would know this information. As a committed father, we expect that he would know if there was someone acting in a stepfather role to his daughter”. The panel also noted that they had no supporting evidence to show that Tami and her mother visited the Appellant in Corby. Whilst they accepted that the Appellant had some contact with his daughter they found not that he had regular or frequent contact but that he had “re-established contact to bolster his claim to remain in the UK and not because of any genuine bond between them”. Furthermore, they found that there was “no independent evidence on the impact the Appellant’s departure would have on Tami”.
15. In respect of Jonathan, they accepted that they were related as claimed and that given his date of birth in June 2012, the Appellant must have been in a relationship with his mother in or about September 2011. They observed that no mention had been made of Nathan or his mother by the Appellant until the statement in the bundle which was signed on 8th August 2013. The Respondent had served the Appellant with notice of liability to be deported in March 2012 and in the ensuing correspondence there had been no reference made to Nathan. It was common ground that the Appellant and Ms Okoh were not in a relationship and the panel accepted that he paid money to her but that the frequency and the amounts that had been paid reflected “something more than maintenance for the child”. They accepted on the evidence that the Appellant had maintained regular contact with Nathan and his mother since August 2012 and that he and his mother had spent days staying with the Appellant in Corby (paragraph 33). However they went on to find that the parties had a business relationship based on the sums of money that had been paid to her, which they found to be frequent and consisting of large sums. Thus they found that the Appellant and Ms Okoh had not been entirely truthful about the nature of their relationship.
16. In respect of the children’s best interests they noted that they were a primary consideration but not the sole consideration (at [34]) and considered whether it was in the best interests of the children for the Appellant being allowed to remain in the UK. They took into account the findings they had made that the relationship with the Appellant was “tenuous”, in respect of Jonathan, that whilst he saw his son they questioned the genuineness of his motives and that the level of the financial dealings led them to conclude that there was another purpose behind the frequent contact between Nathan and his father than simply “one of maintaining a family bond”. They stated that “whilst Nathan has a father figure in the Appellant, he is 1 year old, and we do not find that the impact of the Appellant’s departure would have any serious affect on him”. In respect of the offence they found this to have been a serious offence going to the heart of immigration control (see [29]), that the Appellant established a family life with the children at a time in which he was enjoying leave to remain which he had received as a result of deception and by way of a sham marriage (see [35]), they found that the Appellant “did not accept responsibility for his offence until the court hearing, and less than wholeheartedly showing genuine remorse”, he had not been fully forthcoming about the nature of his financial dealings. In respect of maintaining the relationship between the children they noted that the Appellant could maintain ties with them by modern means of communication, that he could be involved in any important decisions regarding their future and that as the child’s mother had relatives in Nigeria they could accompany the child to visit the Appellant.
17. The panel concluded at paragraph 38:-
“38. We have established that the Appellant deliberately committed an act that went to the heart of the immigration system. The removal of the Appellant will serve as a deterrent to others. The Appellant’s tie to his children and their relationship with him are not such that would make his removal disproportionate.”
Thus they dismissed the appeal.
18. Permission to appeal was sought on behalf of the Appellant and was granted on 24th September 2013 by First-tier Tribunal Judge Pooler. The grounds, in summary, assert that the panel failed to consider properly the evidence relating to the history of prior contact between the Appellant and Tami. Further it was asserted that the panel had failed to consider or make findings on what were the best interests of each of the children and also when considering that issue did not consider their interests separately from that of the public interest as identified in the decision of the Tribunal in MK (best interests of the child) India [2011] UKUT 475. It was further asserted on behalf of the Appellant that the findings made by the panel at paragraphs 37 and 38 were inconsistent and the making of such findings on a crucial issue concerning the proportionality of removal wholly undermined the determination.
19. On 22nd October 2013 the Secretary of State served a response to the grounds of permission under Rule 24 in which it was stated on behalf of the Respondent that the panel had directed themselves appropriately, had made reasonable sustainable findings and that the grounds advanced did not establish any material arguable errors of law capable of having a material impact upon the outcome of the appeal.
20. Thus the appeal came before the Upper Tribunal. Mrs Tanya White, who had settled the Grounds of Appeal, relied upon a helpful skeleton argument that reflected the grounds upon which permission had been sought. In her oral submissions, she sought to address us upon what she considered to be the crucial ground advanced on behalf of the Appellant, which was the panel’s approach to the issue of the best interests of the children and by particular reference to paragraph 35 of the determination. She submitted that the panel had approached it in the wrong way and had muddled this with issues of the Appellant’s poor immigration history and conduct rather than considering the individual interests of each of the children separately before putting that into the balancing exercise. In support of her submissions she relied upon the decision of the Tribunal in MK at paragraphs 19 and 35 in which it was stated the best interests of the children should be addressed as a distinct enquiry. She submitted that whilst the panel made reference to their citizenship as not being a “trump card” it was an example of how the panel had muddled up the assessment of the best interests of the children and what they should have done was to look at the implications for education, for example, of them being uprooted from the United Kingdom. She submitted that the panel should not have looked at the nature of the relationship at this point.
21. As to the other issues outlined in the grounds, Mrs White submitted that the determination suggested that there had been no prior contact between the Appellant and Tami and that it had only been established after his release from prison. However, contrary to that finding, there was evidence before the panel which was referred to in the Appellant’s witness statement. She conceded that it related to second-hand evidence in the form of a solicitor’s letter but submitted that there was evidence from Tami’s mother. At this point in her submissions, Mrs White produced an NHS card relating to Tami. Mrs White did not know if this had been produced before the First-tier Tribunal. However it did not feature in the consideration of the evidence by the panel, nor was it exhibited in the two bundles of documentation that had been placed before the First-tier Tribunal. In those circumstances she did not take that submission any further. Thus she submitted that the determination of the panel was flawed in law and therefore could not stand.
22. Mr Saunders on behalf of the Respondent relied upon the Rule 24 response. In addition he submitted that whilst the reasoning of the First-tier Tribunal concerning the issue of the best interests of the children had been criticised, it had been difficult to keep the area of best interests entirely separate from the context of the case as a whole and it was an inevitable consequence that there would be reference to the history when assessing the genuineness and his attachment to the children. As to the order in which matters should be considered, MK made it clear that an assessment of the best interests of the children was an ingredient to consider. However this is what the First-tier Tribunal panel had done. He referred the Tribunal to paragraphs 30 to 35 of the decision where they had made a proper assessment of proportionality. Furthermore he submitted that any submission concerning the best interests of the children needed to be supported by evidence. As regards Nathan, who was aged 1 at the time of the hearing there was little evidence as to his best interests save that they were to continue living with his mother and in respect of Tami who was aged 6, no doubt whilst she has some attachment to her father, it fell far short of constituting evidence as to her best interests which would render removal disproportionate.
23. As to the finding of the panel concerning the level of contact between Tami and her father, he noted that he could find no reference to the NHS card that had been produced before us and stated that he could not see reference to it in the Presenting Officer’s note of the evidence and that it had not been placed in the bundles before the First-tier Tribunal.
24. As to the issue raised in the grounds that the panel used the term “re-established” and that was inconsistent with their finding of there being no prior contact, that did not detract from the overall findings made by the panel which were clear and sustainable. For those reasons, he submitted there was no error of law and the decision should stand.
25. We reserved our determination.
Discussion and Decision
26. We turn first of all to the finding of the First-tier Tribunal that there was no evidence of any contact between the Appellant and his daughter Tami prior to his arrest and detention which is challenged on behalf of the Appellant. It is submitted that the panel were wrong to reach such a finding and that there was evidence before them capable of establishing that the Appellant did have contact with Tami prior to his arrest which was set out in the Appellant’s witness statement at paragraph 17.
27. We have considered this. It reads as follows:-
“17. The Home Office requested further documentation from me and this was duly submitted on 28th May 2012. I clearly confirmed then that I have continuous contact with both my children.”
28. It is now accepted on behalf of the Appellant that paragraph 17 of the Appellant’s witness statement was referring to a solicitor’s letter dated 28th May 2012 and insofar as it was evidence, was only second-hand at best. However, Mrs White submitted that there was evidence in the form of a letter from Ms Kanjal (page 13 of the bundle). Thus she submits for the panel to say that there was no evidence would be overstating the case.
29. We consider that the panel’s finding was a sustainable one which was firmly based on the evidence before them. The panel were correct in their conclusion that there was no evidence of contact between the Appellant and Tami prior to arrest or detention but perhaps a better way of expressing this was that there was no cogent evidence of this. As can be seen, the witness statement made reference to a letter written by a solicitor who said on 28th May 2012
“They separated soon after the child was born. However our client had an ongoing relationship with his daughter before incarceration.”
30. As Mrs White conceded, this was second-hand information set out in a solicitor’s letter and does not identify any evidence upon which this was based. Furthermore, there was no evidence contained in the witness statement from the Appellant dealing in a narrative form as to the type and nature of contact he claimed to have enjoyed prior to his imprisonment.
31. As to the evidence of Angela Kanjal, the panel observed at paragraph 13 that a typed letter had been produced by her and the contents of that letter were set out. She had not attended the hearing before the panel and it is plain from paragraph 13 that the Appellant was asked about the reasons for her failure to attend the hearing given the issues in this appeal. The panel having considered the evidence that was before them, set out their findings at paragraphs 31 and 32. They observed that on 8th May 2012, UKBA had required confirmation of Tami’s current address and a letter sent on 29th May 2012 on behalf of the Appellant said that he did not know her full address which therefore did not support his claim to have been having regular contact prior to his imprisonment. The panel also considered the evidence from Ms Kanjal. It is plain from paragraph 31 that they did not attach weight to the contents of that letter. They found that the reasons given by the Appellant for her non-attendance were “unimpressive especially when she considers the effect on her daughter would be severe if the Appellant were to be deported”. In those circumstances we do not find it surprising that the panel gave little weight to the letter. It gave no factual account of the relationship between Tami and her father and made no reference to the type and nature of the contact that had been established nor importantly that he had been exercising contact prior to his imprisonment. The panel at paragraph 32 also took into account the evidence of the Appellant concerning the level of contact that he claimed to have, namely every fortnight, and that he had slept there at times. However as the panel observed, the Appellant did not know if Jason’s father also lived at the home and that
“Someone who visits the house as frequently as he claims to would know this information. As a committed father, we expect that he would know if there was someone acting in a stepfather role to his daughter. Nor do we have any supporting evidence to show that Tami and her mother visit the Appellant in Corby.”
32. At the hearing before us Mrs White made reference to evidence in the form of an NHS card. She was not clear whether the evidence had been put before the First-tier Tribunal and she was not Counsel in the case. We had the original bundles of evidence before the First-tier Tribunal in the file and whilst there was a letter from the NHS (at 15 to 17) it referred to medical treatment for the Appellant and there was no evidence relating to Tami. There also does not appear to be a record of such documentary evidence being recorded in the ROP. Whilst it is exhibited in the new bundle, it does not appear to have been evidence before the First-tier Tribunal. In those circumstances we agree with Mrs White that this does not take the matter any further. In those circumstances, we consider the finding made by the Tribunal was one that was properly open to them and a sustainable one on the evidence before them.
33. Whilst the panel used the word “re-establishes contact” at [31], the submission made by Mrs White that this is inconsistent with their finding that there had been no evidence of contact prior to arrest, is a submission that we find is wholly without merit. The fact that the panel used the word “re-establish” is not inconsistent with the primary finding that they made. They were merely referring to the fact that it was not disputed that he was the father of the child, but that after he had been served with the notice of liability to deportation, it was at that late stage that he sought to have contact with the children. We find that nothing turns on that.
34. We are therefore satisfied that the findings of the panel concerning the lack of cogent evidence concerning prior contact were open to the panel to make. It therefore follows that their subsequent findings concerning the strength of the relationship between the Appellant and both children are not undermined in the way that is advanced in the grounds at paragraph 4(3).
35. We are also satisfied that there is no merit in the grounds where it is submitted that the panel’s findings at paragraphs 37 and 38 are wholly inconsistent with each other and therefore undermine the determination as a whole. It is plain from the determination when read as a whole that the panel had reached its conclusions after weighing the matters in the balance, that the decision to deport the Appellant was a proportionate one and where the panel referred to “disproportionate” at paragraph 37, that is nothing more than a typographical error which, had it been noticed shortly after promulgation, would likely to have led to an amendment being made under the provisions relating to the slip rule. We find no merit in that submission either.
36. We turn now to the central submission made by Mrs White and the panel’s consideration of the children’s best interests. Counsel relied upon the decision of MK (best interests of the child) India [2011] UKUT 475, which, when summarising the judicial learning in respect of the best interests, identify that
“Whilst consideration of the best interests of the child is an integral part of the Article 8 balancing exercise (and not something apart from it), ZH (Tanzania) makes clear that it is a matter which has to be addressed first as a distinct inquiry. Factors relating to the public interest in the maintenance of effective immigration control must not form part of the best interests of the child consideration.” (refer to paragraph 19 and also (iii) of the headnote).
MK (India) was a case involving the removal of two children and both of their parents.
37. In this case the Appellant and his children do not, and would not be living together in the UK even if the Appellant were allowed to remain here. Also, as identified by the findings of the panel in respect of Tami, he had sought to “re-establish” contact with her to bolster his claim to remain in the UK and not because of any genuine bond. The panel found that there had been some contact with Tami since his release from prison but not regular or frequent contact as put forward (see paragraph 32 findings). In respect of Nathan, the panel accepted that the Appellant had regular contact with him since August 2012 and that he and the mother had spent days staying with him in Corby (paragraph 33). The panel found that the Appellant had exaggerated his strength of relationship with Tami and they “did not accept that his frequent meetings with his son and Ms Okoh are solely because of the father/son bond” (paragraph 33).
38. There can be no doubt that on the facts of the case the best interests of both Tami and Nathan were to remain living in the United Kingdom with their respective mothers. It had not been asserted, neither could it be, that it would be in their best interests to live with the Appellant either in the UK or in Nigeria. In that sense, the submission made by Mrs White that they had failed to consider important aspects of the best interests of the children including the level of disruption of their education simply does not apply.
39. Thus the issue was whether it would be in their best interests for the Appellant to remain in the UK for their relationship to continue. This was a point referred to by the panel at paragraphs 32 and 34 of the determination in which they said “We first considered whether the best interests of Tami lie in the Appellant being allowed to remain in the UK” and the only reasonable inference from that approach is that it was considered as a starting point that it was in the interests of the children to maintain a relationship with their father.
40. We further consider that, whilst the panel did not set out with any particularity what the best interests of the children were, it is plain from reading the determination as a whole that they carried out a holistic analysis in assessing the best interests of the children in line with ZH (Tanzania) per Lady Hale at paragraph 29 and part of that assessment included the genuineness and strength of the attachment to the children, the extent of their relationship and whether there was evidence before them to demonstrate that the Appellant’s removal would have any serious effect on them (see paragraph 35). Much criticism is levelled at the panel’s approach to the order and manner in which they considered the children’s best interests. We find the panel did take into account their best interests in a holistic manner as follows. In making an assessment they looked at the context and the genuineness and the strength of the relationship. Those findings are set out at paragraph 30 in respect of Tami and paragraph 33 in respect of Nathan. At paragraph 34 they correctly stated the law, that the best interests of the children are a “primary consideration” and identified that they had to consider “whether the best interests of Tami lie in the Appellant being allowed to remain in the UK”.
41. It is plain that the panel reached the conclusion that it had not been so demonstrated for the reasons that they went on to state, including the lack of relationship and genuine bond between the Appellant and the children, the fact that contact had been re-established to bolster his claim to remain, and that there was no independent evidence of the impact of that the Appellant’s departure would have on Tami or upon Nathan. In respect of Nathan’s circumstances at paragraph 33, he was a child of tender years, only being 1 year at the date of the hearing, and, whilst it was accepted that he had been having regular contact since August 2012 and made some financial support for them, the panel reached the conclusion that the frequent meetings between Nathan and Ms Okoh, Nathan’s mother were not solely because of the father/son bond. They considered Nathan’s interests at paragraph 33 noting that he was a British citizen but that this was not a “trump card”, and acknowledged that there was a relationship between them but questioned the genuineness of his motives (see finding at paragraph 33). They took into account that, whilst Nathan had a “father figure in the Appellant”, he was 1 year old but that the impact of departure of the Appellant would have “no serious affects upon his welfare” (see paragraph 35). The panel also considered how the relationship could be maintained in the event of the Appellant’s removal, which again we find presupposes that the panel proceeded on the basis that it was in their best interests for both children to have a relationship with their father, whether in or outside of the UK. In this respect they made reference to the Appellant maintaining ties with them by “modern means of communication”. Whilst that finding is criticised by Mrs White on the basis that such type of communication is not practical considering the ages of the children, we do not take their finding to mean that a 1 year old would use a telephone or would write letters to the Appellant but that the panel considered that steps could be taken by each of their respective mothers to provide help and assistance in the form of indirect contact, which would mean regular reports, photographs, the use of Skype etc., to ensure that the Appellant had knowledge of what was going on in the children’s lives and also vice versa. This was not a case where the parties were not on speaking terms and where their relationships had wholly broken down to the extent that neither mother would support indirect contact. Indeed the contrary was the case and in those circumstances the panel’s finding that the relationships could be maintained in that way is a sustainable one. They also found that the Appellant would still be able to take part in important decisions in their life and there would be prospects of direct contact visits whereby the child’s mother could visit in Nigeria, where she had relatives. Whilst the panel did not expressly say so, the Appellant, if he had demonstrated his relationship with the children, would be able to apply to revoke the deportation order. Thus they did not conclude the best interests of the children demanded that the Appellant remained in the United Kingdom.
42. Even if the panel did err in failing to conclude that the best interests of the Appellant’s children would be served by the Appellant remaining in the UK, and had expressly said that there would be some impact on the children if he left the UK, given the panel’s sustainable findings in relation to the facts as a whole and taking into account as the panel did, that the best interests of the child were only a primary consideration (at [34]) and not a “trump card” ([35]), there is no basis upon which they could have concluded that the deportation of the Appellant would be disproportionate. On the facts of this particular appeal, even if their best interests were to maintain a relationship with him in the UK, those interests did not outweigh the public interest in the deportation of the Appellant. As they observed at paragraph 38:-
“38. We have established that the Appellant deliberately committed an act that went to the heart of the immigration system. The removal of the Appellant will serve as a deterrent to others. The Appellant’s ties with his children and their relationship with him are not such that would make his removal disproportionate.”
43. Whilst the panel did not have the benefit of the Court of Appeal’s decision in MF (Nigeria) it demonstrates the approach the panel clearly took. It was put in MF (Nigeria) per Dyson MR at paragraph 42:-
“In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual’s Article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be ‘exceptional’) is required to outweigh the public interest in removal.”
44. The findings that they placed reliance upon and found to be heavily weighted in favour of deportation related to the seriousness of the offence; an offence which they characterised as one that
“goes to the heart of immigration control. It damages confidence that the system is able to ensure effective immigration control. Moreover it damages the prospects of genuine applicants who wish to remain in the country and have a legitimate aim.” (at [29])
and the Appellant’s failure to accept responsibility for the crime until the court hearing which was “less than wholeheartedly showing genuine remorse” (at [33]) as well as the fact that the removal of the Appellant would serve as a “a deterrent to others” (at [38]).
45. Thus we reach the conclusion that the failure to state in terms what the best interests of the children were, could not have affected the overwhelming conclusion on the evidence and on the particular findings made by the panel, that the public interest in deporting the Appellant was outweighed by the private life/family life interests of the Appellant and the family members.
Decision:
46. For those reasons, we find that the determination of the First-tier Tribunal panel does not contain an error on a point of law such that it ought to be set aside, and consequently direct that it should stand.

Signed Date

Upper Tribunal Judge Reeds