Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01415/2014

THE IMMIGRATION ACTS

Heard at The Royal Court of Justice
Decision & Reasons Promulgated
On 14 November 2016
On 18 November 2016

Before

UPPER TRIBUNAL JUDGE blum

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

M.A.R.
(anonymity direction MADE)
Respondent

Representation:
For the Appellant: Mr N Bramble, Senior Home Office Presenting Officer
For the Respondent: Mr P Haywood, Counsel, instructed by Owens Stevens Solicitors

DECISION AND REASONS
1. The Secretary of State for the Home Department (Appellant) appeals against the decision of Judge of the First-tier Tribunal Easterman, promulgated on 29 September 2016, in which he allowed the appeal of M.A.R. (the Respondent), against the Appellant's decision of 09 July 2014 to make a deportation order against him under the automatic deportation provisions of the UK Borders Act 2007.

Background
2. The Respondent is a national of Jamaica, born on 16 August 1963. He entered the United Kingdom in May 1993 using a passport that did not belong to him. He remained in the UK unlawfully until granted Discretionary Leave To Remain in 2009, following a successful appeal on Article 8 grounds.
3. The Respondent is married to NR (partner) and has been in a relationship with her since 1997. The Respondent's partner is a British citizen and has lived in the UK since she was 12 years old. The family have 4 children, the oldest (JR) being born in March 1999, the next (GV) born in December 2000, the 3rd born in June 2006, and the 4th born in December 2009. The Respondent has a 5th child, born to a former partner in September 1999. This child lives with her mother and the Respondent sees her during the half term holidays and sometimes at weekends. They speak on the telephone about her schooling and she has a good relationship with her half-siblings. The child is said to suffer from dyslexia and had slowed development, and has to take steroids and attend hospital.
4. In 1997 the Respondent received a 3 month conditional discharge in respect of an offence of having an article with a blade or which had a sharp point in public. In 1999 the Respondent received a community service order of 80 hours in respect of a conviction for possession of an offensive weapon in public. In January 2003 the Respondent received a two-year custodial sentence in respect of a conviction for possession of a controlled class A drug with intent to supply. In October 2008 the Respondent received a sentence of one year imprisonment, wholly suspended for 12 months, in respect of possession of a class A drug. In June 2012 the Respondent received a 12 month conditional discharge in respect of an offence of obstructing powers of search for drugs. In 2012 the Respondent was convicted of supplying a class A drug and initially received a six-year sentence. This however was reduced to a four-year term of imprisonment following an appeal in November 2013. The Appellant thereafter made a deportation order in respect of the Respondent as he was subject to the automatic deportation provisions of the UK Borders Act 2007.
5. The Appellant's deportation order was appealed to the First-tier Tribunal but this decision, which went in the Respondent's favour, was successfully appealed to the Upper Tribunal and the matter was remitted back to the First-tier Tribunal for a fresh hearing, no facts preserved. This fresh hearing occurred on 5 September 2016.
The First-tier Tribunal hearing
6. At the hearing the First-tier Tribunal judge considered three bundles provided on behalf of the Respondent which included statements from his partner and their two oldest children, and a statement from his child by his ex-partner. The bundles additionally contained various school reports and probation reports. The Judge heard oral evidence from the Respondent. The Respondent's partner was unable to attend the hearing because she was still in Jamaica on holiday but the judge took her statement at its highest.
7. The judge recorded the Respondent's evidence, noted that his father was no longer alive and that his mother lived in the USA. None of his immediate family lived in Jamaica. The Respondent expressed remorse for his offending, blamed his behaviour on his addiction, and expressed his shame at letting his family down. He claimed he had not been in any trouble while serving his 4 year sentence and had not failed any drugs tests. He said he had been on a number of programmes including drug treatment programmes and had completed a cannabis awareness group. He had also undertaken various courses in maths, English, bricklaying, carpentry, and he had a diploma in construction. He had helped other inmates with reading, writing and mathematics. At the hearing he said he had a City & Guilds diploma and was a painter and decorator. His family would visit him as much as possible and would email several times a week, and he and his family spoke on the phone every other week with visits once or twice a month.
8. Evidence was given concerning JR's troubling behaviour at school which was said to have been triggered by the Respondent's absence. The Respondent claimed that since his release JR had a more positive attitude to his schoolwork and his grades had improved. His head of year had noticed the great improvement. Evidence was also given by the Respondent relating to problems GV had exhibited. Since his release from custody this child had started to behave herself. The Respondent was concerned for his children as they lived in an area that was subject to gang violence and he wanted to steer his son away from bad influences. If he was not there to assist his children the Respondent believed there would be a severe impact on his family.
9. The Respondent claimed it would be impossible for his wife and children to relocate to Jamaica as they had no place to live or money to send the children to school, and his partner could not leave her job in the UK.
10. In the part of his decision containing his findings of fact and conclusions the judge indicated that he had considered all the evidence and had taken the children's interests as a primary consideration. The judge directed himself with specific reference to s.117C of the Nationality, Immigration and Asylum Act 2002 [72]. The judge gave reasons as to why he was satisfied that the Respondent had a genuine and subsisting relationship with his partner [75] and with all his children [76]. The judge analysed the Respondent's relationship with the child from his former relationship and noted, notwithstanding that he had not taken part in her upbringing, that this child had physical difficulties and it was important to have a father figure in her life to make her feel more confident. This however was the extent to which the judge was able to factor the Respondent's input into her life in the absence of any school reports and any evidence that the effect of his absence as a father may have had on her at times when they were not in contact [77].
11. The judge found that, despite his offending, the Respondent clearly had had a 'major effect' on his other children in terms of their behaviour, their attendance and studying, which appeared for some time to be going downhill severely [78]. The judge considered a letter from Hertford Regional College which was undated, relating to JR. The judge found it difficult to know how the contents of the letter fitted in with the Respondent's incarceration and release. The judge noted that JR was not attending classes as frequently as he should, although his overall attendance had improved. Nothing in the letter directly referred to the Respondent. The judge then analysed a letter from Oasis Academy which was written in respect of JR and GV, both of who had attended the institution. The judge noted that both children had, at times, displayed extremely challenging behaviour which had an adverse effect on their attainment. JR was considered 'vulnerable' and was targeted as a black Caribbean boy who had been at risk of failing to achieve his GCSE targets. Mr Burke, a teacher at the Academy, was appointed as JR's academic mentor and helped JR develop strategies that would complement and enhance his learning experience and manage his behaviour. Mr Burke noted that JR often spoke positively about his father and clearly admired him. Mr Burke stated that the Respondent was exceptionally supportive of JR and they often spoke on the telephone and met during parent teacher conferences. The Respondent was supportive and would often contact Mr Burke personally to ask for revision material and to offer advice.
12. A further letter from Mr Campbell, head of Year 10 at the Oasis Academy, stated that the Respondent interacted very well with the school when it came to attending meetings in regard to GV and regularly attended parent evenings as well as other meetings in relation to his daughter. This enabled the Academy to see a positive step in GV's academic progression and the school had built a good relationship with both parents.
13. Following this analysis the judge concluded that there were exceptional or very compelling circumstances which outweighed the Appellant's interest in deporting foreign criminals. The judge found that the Respondent's presence was very significant to his children's wellbeing [85]. The judge found that this was a case where the Respondent's custodial sentence had an immediate detrimental effect on his children's behaviour such as to seriously affect their studies and their ability to progress at school [86].
14. At [90] the judge stated,
"I am just satisfied in this case that the influence, despite his record of the [Respondent] on his children is one without which their wellbeing will be significantly impaired over and above the loss of a parent, in the general run of life. To put that another way, I have tried to weigh in my own mind whether this is all part and parcel of a genuine and subsisting relationship or whether the effects of removal of the [Respondent] go beyond that and cause there to be very compelling circumstances relating to the well-being of the children that are not catered for within the phrase of genuine and subsisting relationship."
15. At [93] the judge concluded that the deportation decision would cause the UK to be in breach of its obligations under the ECHR.
The grounds of appeal and the grant of permission
16. The grounds contended that the judge was not entitled to conclude that the adverse impact on the children's education was sufficient to displace the strong public interest given that the Respondent's offending was at the most serious end of the offending scale. It was submitted that the judge failed to identify anything exceptional in the factual matrix before him. The grounds further contended that the judge failed to identify what in the instant case would render the deportation "duly harsh". The ground submitted that the judge place the children's best interests as "the" primary consideration. The children's mother was said to be their primary carer and she would continue to care for them in the event of the Respondents deportation.
17. In granting permission to appeal to the UT the First-tier Tribunal found it arguable that the judge may not have sufficiently factored in Parliament's view that the separation of a family will sometimes be justified in cases of serious offending, that the judge may not have sufficiently identified what it was in this case that meant that the Respondent should succeed in his appeal, and it was arguable that the judge failed to balance the identified best interests of the children against the public interest in deporting foreign criminals.
Submissions at the error of law hearing
18. Mr Bramble expanded upon the grounds and submitted that the judge failed to identify the "unduly harsh" consequences of the deportation order. In the absence of any finding as to whether the deportation would have an "unduly harsh" effect on the children the judge was unable to identify the factors that were "over and above" such an effect. It was submitted that the judge was not entitled to conclude, on the evidence before him, that the impact on the Respondent's children amounted to "very compelling circumstances" within the terms of s.117C. It was further submitted that the judge failed to take sufficient account of the relevant public interest factors. In his conclusions the judge only made brief reference (at [91]) to the public interest in the Respondent's removal, and the specific public interest factors had not been particularised. It was submitted that the decision was a one-sided exercise that focused mainly on the children at the expense of the relevant public interest factors.
19. Mr Haywood adopted his helpful Rule 24 response. He submitted that it was important to read the decision in the round and as a whole. He took me through the decision identifying where the judge had set out the case in detail and the arguments from both sides. The judge had properly identified relevant features in the case. The judge had recorded submissions relating to the specific public interests in the Respondents deportation and these featured in the skeleton argument before the First-tier Tribunal, which the judge had clearly taken into account. The judge had identified relevant and recent authorities such as LW (Jamaica) [2016] EWCA Civ 369 and had separated out the "normal" impact on children who have a parent subject to deportation from the particular impact on the education and wellbeing of this Respondent's children. It was submitted that there had been no challenge to the important factual findings made by the judge in respect of the educational evidence at paragraphs 80 to 83 of the decision. It was submitted that the judge had carefully considered the educational evidence and reached a conclusion that was rationally open to him for the reasons he gave. The fact that the judge set out the wrong version of the immigration rules was not material because the judge had concentrated on s.117C rather than the immigration rules themselves. Mr Haywood submitted that, in the event that I found a material error of law, that the matter ought to be remitted back to the first-tier Tribunal. Mr Bramble did not make any reply.
Discussion
20. It is apparent that the judge set out the wrong version of the immigration rules in his decision. At [12] the judge set out the relevant immigration rules relating to deportation as they were prior to 28 July 2014. The decision challenged was made on 9 July 2014. But paragraph A362 of the immigration rules states, "Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 28 July 2014 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served." Following both YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 (paragraph 39) and Chege (section 117D - Article 8 - approach) [2015] UKUT 00165 (IAC) (paragraph 13) the Judge should have considered the immigration rules are they were at the date of the hearing and not at the date of the decision (consider also the decision of MK (section 55 - Tribunal options) Sierra Leone [2015] UKUT 00223 (IAC)).
21. Mr Haywood however submits that this had little material bearing on the judge's assessment. It is clear from [72] that the judge's conclusion was reached by reference to s.117C of the 2002 Act and not the immigration rules. The judge properly identified that "very compelling circumstances" had to be identified that were "over and above" any "unduly harsh" impact that his deportation would have on his partner or children. Although at paragraph 73 the judge spoke in terms of the need for "exceptional circumstances" under paragraph 398, there is not in my view any difference between "exceptional circumstances" and "very compelling circumstances". I am satisfied that, despite setting out the wrong rules, this error was not material.
22. At [74] the judge accurately cited NA (Pakistan) [2016] EWCA Civ 662. At paragraph 37 of this authority Jackson LJ stated,
"In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are "very compelling circumstances, over and above those described in Exceptions 1 and 2" as is required under section 117C(6). It will then be necessary to look to see whether any of the factors falling within Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6)."
23. The need to determine whether the exceptions in paragraphs 399 or 399A are met in an appeal involving an offence that received a custodial sentence of 4 years or more was also considered by the President of the Upper Tribunal (IAC) in Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC). Headnote (i) reads,
"The exercise of considering whether there are very compelling circumstances over and above those described in paragraphs 399 and 399A of the Immigration Rules must, logically, be preceded by an assessment that the Appellant's case does not fall within paragraph 399 or 399A."
24. The judge reminded himself of the need for a structured decision to ensure that due weight is given to the public interest in deportation proceedings. The judge then considered the evidence relating to the Respondent's children ([77] et seq). At [84] the judge stated that the question he had to answer was whether, taking the genuine parental relationship that the Respondent has with his children into account and the other factors including the more limited relationship with his child by his former partner, there could be said to be exceptional or very compelling circumstances which outweighed the Appellant's interest in deporting foreign criminals. While this is ultimately the correct question the judge then proceeded to answer the question without first identifying how the Respondent's deportation would cause an "unduly harsh" impact on his children.
25. At [85] the judge states that it is "very harsh" (not "unduly harsh") for any child in a subsisting relationship to be deprived of the presence of a parent as this is very significant to the child's wellbeing. This is clearly not a finding that the impact on the Respondent's children would be "unduly harsh".
26. Although at [90] the judge stated that the wellbeing of the children will be significantly impaired "over and above the loss of a parent, in the general run of life", he does not consider whether such impact will be 'over and above' an unduly harsh effect on the children. Nowhere in his decision does the judge actually make any finding as to how the effect of the Respondent's deportation would be unduly harsh for his children. The judge has not followed the structured approach suggested in NA. In order to determine whether there are "very compelling circumstances" over and above those in Exception 2 in s.117C it would have greatly assisted the judge if he had first ascertained whether the deportation would have an "unduly harsh" effect on his children, and, if so, or the manner in which the effect would be 'unduly harsh', even if neither Exception could apply. The judge went straight to his consideration of whether there were "very compelling circumstances" without first identifying how the effect on the children would be "unduly harsh". This has the consequence of rendering the judge's approach to the evidence before him relating to the effect on the children potentially unsafe because there was no clear separation between what would be needed to amount to an 'unduly harsh' effect, and what would be needed to constitute very compelling circumstances over above an unduly harsh effect.
27. In determining whether the judge was nevertheless lawfully entitled to his conclusion in respect of the existence of "very compelling circumstances", despite failing to identify the manner in which the effect on the children would be "unduly harsh", it is necessary to examine the evidence upon which he relied in reaching his conclusion.
28. Mr Haywood submitted that no issue had been taken by the Appellant with the judge's factual findings. In Mr Haywood's submission the judge's factual analysis of the evidence relating to the children, including the letters from schools and colleges, was legally unimpeachable. I fully accept that the Appellant has not challenged the basic factual findings made by the judge. The essential feature however of the Appellant's challenge to the First-tier Tribunal's decision is that the judge was not entitled to conclude that "very compelling circumstances" existed. It is therefore necessary to determine whether the judge was rationally entitled to find that "very compelling circumstances" existed based on the evidence that was actually before him. Mr Haywood, in his Rule 24 response, submitted that the judge's factual analysis could only be impugned, if the correct framework had been applied, if it was a rational. I accept this submission. This proposition finds support in Mukarkar v SSHD [2006] EWCA Civ 1045 and, and in the context of deportation appeals, Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC) where the President of the Upper Tribunal stated, at [16],
"The test for unreasonableness, which later became known as perversity, or irrationality, is whether the decision under appeal is one which no person acting judicially and properly instructed on the relevant law could reasonably have made. The restraint which an appellate court must exercise, having regard to these principles, features in the decision of the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44. In R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport [1993] 1 WLR 23, Lord Mustill offered the following pithy summary (at 32 - 33):
"In such a case the Court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational."
Decisions which fall "within the permissible field of judgment" do not satisfy this elevated hurdle."
29. At the date of the First-tier Tribunal hearing JR was 17 years old. According to the bail documents the Respondent was released from immigration detention in August 2014. At this time JR would have been 15 years old. The judge placed weight on statements from JR that were taken when he was 15 years old and 17 years old. The letter from Mr Paul Bragg, Behaviour for Learning Co-Ordinator/Year Leader at the Oasis Academy, dated 13 November 2014, indicated that JR had issues managing his anger and focusing on his academic work. When the letter was written JR was 15 years old. The letter indicated that, prior to the Respondent's incarceration, JR made a considerable amount of progress in managing and controlling his anger but that he lost "some ground" when the Respondent was incarcerated. Significantly the letter then indicated that JR, "? did not slip back to his previous position." The letter noted that the Respondent's return to the family home had an almost immediate calming effect on JR. this letter did not suggest that the Respondent's incarceration prevented JR from progressing a school.
30. The judge placed considerable reliance on a letter from Marcus Burke, who taught JR for 2 academic years and was his academic mentor at the Oasis Academy. The letter is dated the '10th March' and was presumably written in 2016. Mr Burke does not indicate over which 2 years he taught JR or when he was JR's academic mentor. JR left the Oasis Academy in July 2015. The judge described the content of the letter which indicated that both JR and GV had displayed, at times, "extremely challenging behaviour" that had an adverse effect on their attainment. The letter does not identify when this extremely challenging behaviour occurred or give any further details about it. Following JR being identified as vulnerable, Mr Burke was appointed his academic mentor to help facilitate his learning and monitor his behaviour. Mr Burke helped JR to develop strategies that would complement and enhance his learning experience, and strategies to help manage his behaviour. Mr Burke noted that the Respondent was exceptionally supportive of JR and that he often spoke to the Respondent via telephone and during parent teacher conferences. The judge twice quoted Mr Burke's firm belief that the Respondent's "robust input, encouragement and guidance was and is paramount to the development and the success of both GV and JR" (see [82] and [87]). It must be noted that although Mr Burke talks in the present tense of the Respondent's influence on JR, the letter was written some 8 months after JR left the Oasis Academy. The letter indicates that, notwithstanding the positive influence of the Respondent, the school had put into place strategies to assist JR. By the time of the First-tier Tribunal appeal JR was older and had not attended the Oasis Academy since July 2015, some 26 months earlier.
31. The most recent educational document relating to JR was from the Hertford Regional College and was undated (see [80]). Presumably JR started attending the HRC after he left the Oasis Academy. The letter, written by Thomas Smith, lecturer, indicated that he was JR's tutor and programme manager on his BTEC level II Extended Certificate in Sport course. The letter indicated that JR had a difficult and unimpressive start to the school year, that he was consistently late, missed classes and was a disruptive influence when in class. This behaviour resulted in him having disciplinary meetings with the Head of Development and JR being set targets to achieve if he was to stay in the course. The letter stated that since the start of the spring term (presumably from January 2016) there had been an improvement in JR's overall behaviour in class. Although there was still room for improvement he was now getting more involved in class discussions and showed a good knowledge of some of the units he was studying. The letter stated that JR would continue to receive support from his tutors but ultimately he needed to want to do well and make the right decisions. The letter noted that JR was also taking his GCSEs English and functional skills mathematics. His attendance on both of these courses had been a problem and was an area that still needed some attention. As the judge noted this letter made no reference at all to the Respondent. This is surprising given that it was likely to have been written in support of the Respondent's appeal. As the Respondent was released from detention August 2014 he would have been a continuing presence JR's life since he began attending Hertford Regional College.
32. The judge noted that, in his oral evidence, the Respondent said that JR was at university or college in Hertford but was unclear on the precise name of the institution. The Respondent stated that JR was undertaking a physical training diploma but was not quite sure whether it was for 2 or 3 years [40].
33. The letter Mr Burke wrote on 10 March 2016 also referred to GV. She was in Year 10 and Mr Burke was her teacher and had been teaching her for 2 academic years. GV was receiving extra support in her lessons and she attended targeted numeracy and literacy intervention classes. She was said to struggle to access the curriculum and sometimes responded with frustration and this affected her self-esteem. The Respondent was said to be supportive and to be eager to help the Academy and GV develop her confidence and her attainment. Mr Burke's reference to the Respondent's "robust input, encouragement and guidance" related to both JR and GV.
34. The judge considered, at [83], a letter written by Mr Campbell, Head of Year 10 at the Oasis Academy, dated 11 July 2016, which indicated that the Respondent and his wife provided support to GV and had a good parent teaching relationship. The Respondent was said to interact very well with the school and attended meetings regarding GV and regularly attended parent evenings and other meetings in regards to concerns that the school had with GV. Both parents were said to be extremely supportive in meetings addressing certain issues relating to GV's learning development and they were working alongside the school in support of the school's development programmes. The letter indicated that the school was looking forward to the relationship continuing and that the Respondent would also continue to play an integral role in his daughter's academic progress.
35. The judge considered the statement from the Respondent's partner (at [44] to [45]) which indicated that, since his release, he had been helping their children whose behaviour had improved. The partner indicated that the Respondent's deportation would be devastating for her children's wellbeing. The statements from the children, including the Respondent's child from his former relationship, indicated that they missed their father very much when he was in prison and that they could not imagine life being separated from him ([46] & [47]).
36. The best interests of the children must be a primary consideration but they can be outweighed by the cumulative effect of other considerations (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4). The mere fact that there will be a detrimental effect on the best interests of the children where a parent is deported in circumstances where the children cannot follow him does not by itself constitute an exceptional circumstance (LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310; [2015] Immigration AR 2 and Secretary of State for the Hone Department v CT (Vietnam) [2016] EWCA Civ 488. In CT (Vietnam) the Court of Appeal held (paras.36 and 38):
"The effect on the children was, on the evidence, to leave them unhappy at the prospect of their father being on another continent. I readily accept that description. Experience teaches that most children would so react. I cannot accept the conclusion that, added to a low risk of reoffending, the effect on them tips the balance. These children will not be bereft of both loving parents. Nor was there evidence of a striking condition in either (I ignore the stepchildren by virtue of their age) which his presence in the UK would dispositively resolve. He is said to have "a particular tie" with the Respondent. The son was said to have spoken less confidently when his father was in prison and to have returned to confidence upon his release. That is not exceptional. ?
Appellate guidance is clearer now than when the FTT promulgated its decision. As paragraph 24 of LC (China) succinctly explains, where the person to be deported has been sentenced to 4 years' imprisonment or more, the weight attached to the public interest in deportation remains very great despite the factors to which paragraph 399 refers. Neither the British nationality of the Respondent's children nor their likely separation from their father for a long time is exceptional circumstances which outweigh the public interest in his deportation. Something more is required to weigh in the balance and nothing of substance offered. The approach of both the FTT and the UT failed to give effect to the clearly expressed Parliamentary intention."
37. In SSHD v AJ (Zimbabwe) [2016] EWCA Civ 1012 The Court of Appeal considered a number of authorities concerning the impact of deportation decisions on children and stated (paragraph 17):
"It will be rare for the best interests of the children to outweigh the strong public interest in deporting foreign criminals. Something more than a lengthy separation from a parent is required, even though such separation is detrimental to the child's best interests. That is commonplace and not a compelling circumstance. Neither is it looking at the concept of exceptional circumstances through the lens of the Immigration Rules. It would undermine the specific exceptions in the Rules if the interests of the children in maintaining a close and immediate relationship with the deported parent were as a matter of course to trump the strong public interest in deportation. Rule 399(a) identifies the particular circumstances where it is accepted that the interests of the child will outweigh the public interest in deportation. The conditions are onerous and will only rarely arise. They include the requirement that it would not be reasonable for the child to leave the UK and that no other family member is able to look after the child in the UK. In many, if not most, cases where this exception is potentially engaged there will be the normal relationship of love and affection between parent and child and it is virtually always in the best interests of the child for that relationship to continue. If that were enough to render deportation a disproportionate interference with family life, it would drain the rule of any practical significance. It would mean that deportation would constitute a disproportionate interference with private life in the ordinary run of cases where children are adversely affected and the carefully framed conditions in rule 399(a) would be largely otiose. In order to establish a very compelling justification overriding the high public interest in deportation, there must be some additional feature or features affecting the nature or quality of the relationship which take the case out of the ordinary."
38. Although this decision was delivered in the context of the pre 28 July 2014 Rules, the Court of Appeal stated, obiter, "For the most part they set more stringent requirements to be met before leave to remain will be permitted under the specific exceptions. The broad principles we set out in this judgment in respect of the article 8 assessment of foreign criminals would apply equally under the old and new Rules. We find it very difficult to see how the article 8 position of these deportees could possibly be improved under the new Rules."
39. It is quite clear that this was not an easy decision for the First-tier Tribunal judge. However, having considered the evidence upon which the judge relied, I am compelled to conclude that the judge was not rationally entitled to find that the impact on the children amounted to "very compelling circumstances" as understood by reference to s.117C. In reaching this decision I first note, as considered earlier, that the judge did not identify the manner in which the Respondent's deportation would have an "unduly harsh" effect on his children. The various letters from the Academy and the College indicate that the Respondent did have a positive influence on his children and that he was very supportive of their education. However, whilst his incarceration did have an adverse impact on the children's education the Oasis Academy was able to implement strategies to assist and support both JR and GV, and GV continues to receive extra support in her lessons. The evidence did not suggest that JR's ability to progress at his College would be significantly hindered by the Respondent's deportation. A parent's deportation is, unfortunately, always likely to have an adverse effect on a child's education. Whilst there may be instances when the impact on an child's education and behaviour is so serious that a deportation does have an unduly harsh effect or constitutes very compelling circumstances, I am not satisfied that the particular evidence before this judge entitled him to reach either of those conclusions. In my judgement the evidence of the impact on the education and behaviour of the Respondent's children cannot rationally support a conclusion that it amounted to an "unduly harsh" effect, having regard to the seriousness of the Respondent's offending and the relevant public interest factors (applying MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705 and MM (Uganda) v Secretary of State for the Home Department [3016] EWCA Civ 450), let alone a conclusion that the impact on children's wellbeing and their education would amount to "very compelling circumstances" over and above an "unduly harsh" effect on them.
40. Independent of the above analysis, I am additionally satisfied that the judge materially erred in law by failing to demonstrably take into account the relevant public interest factors. Although the judge made general mention of the strong public interest in the Respondent's removal, and had previously, when recording the submissions of the representatives, referred to those public interests ([49] & [52]), the judge did not identify the relevant public interests specific to deportation hearings in that part of his decision dealing with his reasons. This gives rise to a concern that the judge failed to lawfully balance the full range of public interests in his assessment. In AJ (Zimbabwe) the Court of Appeal stated, at [11(6) & (7)]
"When having regard to the public interest in deportation, there are three important facets: the need to deter foreign criminals from committing serious crimes; an expression of society's revulsion at serious crimes and building public confidence in the treatment of foreign criminals who have committed such crimes; and the risk of re-offending. It is an error to assume that the risk of re-offending is the sole, or even the most important, facet where serious crimes are committed: see the observations of Wilson LJ in OH (Serbia) v The Secretary of State for the Home Department [2008] EWCA Civ 694 para.15 drawing upon the judgments of this court in N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094.
It is not enough for a tribunal in its reasons simply to identify a strong public interest in the deportation of foreign criminals; there must be a full recognition of the very powerful weight to be given to that factor and of the need for compelling factors to outweigh it: Secretary of State for the Home Department v MA (Somalia) [2015] EWCA Civ 48 para. 25 per Richards LJ"
41. Although the judge had considered the skeleton argument, which did refer to the relevant public interest factors, the decision does not sufficiently indicate that these public interest factors were taken into account by the judge.
42. For the above reasons I am satisfied that the decision of the First-tier Tribunal is vitiated by material errors of law. Following the hearing of this appeal the Supreme Court promulgated its decisions in Hesham Ali (Iraq) (Appellant) v Secretary of State for the Home Department (Respondent) [2016] UKSC 60 and Makhlouf (Appellant) v Secretary of State for the Home Department (Respondent) (Northern Ireland) [2016] UKSC 59. Having read both these judgements I do not consider it necessary to invite further submissions from either representative. Neither decision dealt with the amendments brought by the Immigration Act 2014 which introduced sections 117A to D of the 2002 Act, and neither dealt with the amendments to the immigration rules brought into force on 28 July 2014. As Mr Haywood submitted at the hearing, the judge concentrated his assessment on the s.117C considerations and not the immigration rules. The Supreme Court did not find that the immigration rules (paragraph 398) constituted a 'complete code', but did conclude that "very compelling circumstances" would need to be demonstrated to resist deportation in respect of a serious offence (see [46] & [50] of the majority decision in Hesham Ali).
43. Mr Haywood submitted that the matter ought to be remitted back to the first-tier Tribunal to enable a lawful assessment to be made in light of any further evidence that may be provided relating to the effect of the deportation on the children. I note that the Respondent's partner did not give oral evidence although the judge took her statement at its highest. Nor was any evidence given by his children. Mr Bramble did not make any submissions in the event that I identified a material error of law. Although the first-tier Tribunal only promulgated its decision in September I consider it appropriate to remit the matter back to the first-tier Tribunal, before a judge other than judge of the First-tier Tribunal Easterman, to consider any further evidence adduced by the Respondent and to apply the correct legal provisions and principles.

Notice of Decision
The First-tier Tribunal decision is vitiated by a material error of law.
The matter will be remitted for a full fresh hearing at Hatton Cross before a judge other than judge of the First-tier Tribunal Easterman.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

17 November 2016

Signed Date

Upper Tribunal Judge Blum