Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01421/2014

THE IMMIGRATION ACTS

Heard at The Royal Courts of Justice
Decision & Reasons Promulgated
On 30th January 2017
On 7th March 2017

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

the Secretary of State for the Home Department
Appellant
and

Donald Clinton bailey
(aNONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr K Norton, Senior Home Office Presenting Officer
For the Respondent: Miss E Rutherford, Counsel

DECISION AND REASONS
1. The application for permission to appeal was made by the Secretary of State, but nonetheless I shall refer to the parties as they were described before the First-tier Tribunal, that is Mr Bailey as the appellant and the Secretary of State as the respondent.
2. The Secretary of State appeals, with permission, against the decision of First-tier Tribunal Judge Grimmett who on 17th October 2016 allowed the appellant’s appeal against the decision of the respondent of 4th July 2014 to refuse to revoke a deportation order. The appellant claims his deportation would be in breach of his Article 8 rights as he had established family and private life in the United Kingdom.
History
3. The appellant arrived in the United Kingdom on 18th March 2000 with a valid three month visit visa and obtained an extension of that visa allowing him to remain until 18th September 2000. He did not leave the United Kingdom and on 19th October 2002 he married and sought leave to remain as a spouse. On 19th November 2002 he was convicted of failing to stop after an accident, using a vehicle with no test certificate, driving otherwise than in accordance with a licence and using a vehicle whilst uninsured. He incurred fines and penalties totalling £605 and received 8 penalty points on his licence.
4. His application for leave to remain as a spouse was rejected on 3rd February 2003 and on 7th February 2003 he made a further application which was again rejected. A third application was made in April 2003, but on 28th October 2006 that was withdrawn as his marriage had broken down. In the meantime, on 2nd November 2005 he was convicted of assault occasioning actual bodily harm and harassment and received a 24 month custodial sentence and a protection from harassment order. On 17th November 2005 he was convicted of driving whilst disqualified and using a vehicle whilst uninsured and receiving fines totalling £300 and a further 8 penalty points. He was released from detention on 5th May 2006.
5. He entered a relationship with Miss Safia Hamid and she gave birth to their daughter on 28th March 2008 and a second daughter on 30th July 2009.
6. On 16th July 2009 the respondent served the appellant with a notice that he was to be removed as an overstayer and on 28th August 2009 the appellant made an application for leave to remain on Article 8 grounds. That application was granted on 24th November 2009 when he was granted discretionary leave to remain until 24th November 2012. The appellant made a further application on 11th March 2010 to convert his discretionary leave into leave to remain which was successful. He then made an application on 12th November 2012 for further leave to remain. The difficulty with the last two applications was that the appellant failed to disclose his criminal convictions, denying that he had any criminal convictions. The applications for leave to remain have been successful because the information offered by the appellant was accepted.
7. When he applied for further leave to remain on 12th November 2012 his application was referred to the criminal casework team on the grounds of his criminality, and in March 2014 he was notified of his liability to deportation. After consideration of his submissions the respondent made a deportation order against which he appealed.
8. The appellant had in fact been unlawfully present in the UK between September 2002 and 24th November 2009 when he was granted discretionary leave to remain until 24th November 2012 in response to his application made on 28th August 2009.
9. The appellant’s immigration history became further complicated when his appeal was first heard by First-tier Tribunal Judge Cox who, by a decision promulgated on 4th February 2015, allowed the appellant’s appeal against the deportation order. Upper Tribunal Judge Southern found an error of law in that decision as the judge failed to recognise that the appellant’s private and family life was established and developed when he was unlawfully present in the United Kingdom. The judge was required by Section 117B(4) of the Nationality Immigration and Asylum Act 2002 to give little weight to private life and the relationship formed with the appellant’s partner while he was present unlawfully, but the judge left that out of account. Further, the judge failed to take into account the fact that the appellant secured his grant of leave by falsely representing that he had no criminal convictions when he was in fact under a legal obligation to leave the United Kingdom and the respondent was entitled to assume that he would and so was under no obligation to enforce his departure. Instead the appellant remained unlawfully, committed serious criminal offences and entered into two successive relationships which produced children, all when he should not have been in the United Kingdom at all. The question of whether the effect upon the children of the deportation would be unduly harsh has to be informed by all the relevant circumstances, and it was not apparent that it was in that case.
10. The appellant’s appeal was heard again and this time by First-tier Tribunal Judge Grimmett who allowed the appeal. The Secretary of State again appealed that decision on the following grounds:-
(1) The judge materially erred in factoring into the holistic assessment of unduly harsh what the situation would have been had the appellant been deported. The starting point should have been that the appellant remained in the UK unlawfully as he had done after his previous convictions. See R (on the application of Shou Lin Xu) v Secretary of State for the Home Department (Legacy cases - “conclusion” issue) IJR [2014] UKUT 375 (IAC) applying the ratio of Patel v The Secretary of State for the Home Department [2013] UKSC 72, that is that the Secretary of State is entitled to proceed on the basis that those unlawfully in the UK will leave of their own accord; she is not obliged to remove an individual or issue a removal decision.
(2) The judge was required by Section 117B to factor in the appellant’s longstanding, unlawful residence.
(3) That the judge had failed to factor in that the appellant had lied in the hearing about his mistake when filling in the application. This was a relevant consideration.
(4) That he failed to provide lawful reasons in respect of his conclusion that the children from the relationship with Miss Hamid will be so adversely affected by his deportation. The reality was that the appellant had withdrawn himself as a full father figure to the children in order to commence a new relationship with another partner with whom he now lives. That was a material error, especially when the appellant’s own previous behaviour indicated that he did not necessarily stay in contact with previous partners.
11. Permission was granted only on the last ground, that is ground 4, by Upper Tribunal Judge Smith on the following grounds:-
“The final sentence of [30] of the decision is the conclusion about why it is unduly harsh for the appellant’s children to remain in the UK without him. Whilst those matters may cause the extended family some difficulties, it is arguable that those factors could not be described as ‘unduly harsh’ even applying a threshold test let alone when balanced against the appellant’s previous offending. The fact of the relationship with his children cannot in and of itself form the basis of a conclusion that deportation would be unduly harsh. It is arguable that the judge did not provide adequate reasons for her conclusion.”
12. Therefore it can be seen that the question in relation to the decision rested with whether the judge had applied the test of “unduly harsh” incorrectly in the assessment.
13. At the hearing before me Miss Rutherford submitted that the judge had given adequate reasons for her conclusions and was aware of the separation between the appellant and his former partner, but recognised that despite the separation both parents continued to play an active role in their daughters’ lives and that the appellant did not have contact with his eldest daughter did not mean he would not remain in contact with his two daughters with Miss Hamid, and the judge was aware and factored in that he had no contact with his eldest daughter.
14. The judge held at paragraph 16 that the appellant had very regular contact with his two daughters and found at paragraph 17 that he enjoyed family life with his children and he remained close to them and worked with Miss Hamid to ensure their children were cared for. The judge found that it was in the best interests of all three children to retain a close relationship with their father and each other, and that he was of real help with the children. The judge found that there would be a very significant change to the lives of his two daughters if he would return to Jamaica. The youngest had educational problems and he was involved in assisting them practically and emotionally. The judge at paragraph 30 had concluded that the appellant was of considerable support to his ex-partner and the extended family would find it difficult to cope practically and financially without his support.
15. The judge had also factored in the nature of his offending at paragraph 24, but found he was rehabilitated.
16. Mr Norton submitted that there was no consideration of the public interest. He could see the reasoning of the judge behind the findings but there was an absence of the weight of the public interest and in terms of the judgment it was deficient and required remedy.
Conclusions
17. In conclusion, the judge rightly considered the appeal of the appellant under the relevant paragraphs of the Immigration Rules, that is paragraph 398, 399A and 399 and these were clearly set out.
18. It is a curious feature of this case that certain of the grounds on which the Secretary of State challenged the decision were not given permission, yet the consideration of “unduly harsh” entails, following the case of MM Zimbabwe v SSHD [2012] EWCA Civ 279, regard to be had to all the circumstances, including the foreign criminal’s immigration and criminal history, with the emphasis on the point that 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”. As the court in MM pointed out, any other approach in the judgment dislocated the unduly harsh provisions from their context and would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest. The court added that the term “unduly” and “excessive” import a different concept. What is duly or unduly harsh depends on all the circumstances, not merely the impact on the child or the partner in the given case.
19. As can be seen, the appellant was convicted of assault occasioning actual bodily harm and harassment and received a two year sentence in 2nd November 2005. The judge considered whether the exceptions under paragraph 399 of the Immigration Rules applied to the appellant and the nub of the matter is consideration of whether it would be unduly harsh for a child to remain in the UK without the person who is to be deported. It was accepted that the appellant had very regular contact with his 8 year old and 7 year old daughters on alternate weekends and during the week. The judge clearly set out at paragraph 14 that the appellant was no longer in a relationship with the mother of those two children and that he had now established a relationship with another partner who has a young son with him.
20. The judge had set out that the deportation of the appellant was conducive to the public good and in the public interest and was aware of the weight to be attached to the public interest. The judge set out the relevant law specifically under the Immigration Rules and Section 117C in relation to foreign criminals. The question for the judge was whether removal of the appellant would be unduly harsh in respect of the children. It is clear that the judge factored in consideration of the appellant’s attempt to mislead the respondent in August 2009 in relation to his convictions. There is no doubt that the children are settled at school as they are 7 and 8 years old, and that his former partner has a job working and caring for her mother who is currently recovering from cancer.
21. At paragraph 18 the judge also factored in that the younger daughter had educational difficulties, and although there was no diagnosis, extra support was needed for the child with her schoolwork, she was currently two years behind at school. At paragraph 19 the judge made a specific finding in relation to the best interests of all three children, which was that they remain in a close relationship with their father in the light of the support that he had provided.
22. There is no doubt that the judge factored in the relevant considerations, noting at paragraph 22 the case of MM (Uganda) [2016] EWCA Civ 450 (regard be had to all the relevant circumstances including the criminal’s immigration and criminal history. The judge factored in that the appellant had remained in the UK without leave from 2000 onwards. Nonetheless, the judge identified that it was over ten years since the appellant had received his last conviction, and that there was no evidence to suggest he had any further problems with the police and that he had attended college, obtained qualifications and was now able to work and support his family and that he had become rehabilitated.
23. The judge also made a finding that it was plain from the evidence of his former partner that he was of great help to his former partner and the children.
24. The judge took into account as Miss Rutherford submitted the offending of the appellant and made particular reference to the serious offence at paragraph 24. The judge in reaching he judgment was aware of and clearly recorded the sentence of the index offence being two concurrent 24 months sentence of imprisonment in 2005 for one count of harassment and one count of assault occasioning actual bodily harm at [3]. The judge was also aware and also recorded the other serious driving related offences committed by the appellant at [2].
25. In an assessment of the weight to be attached to the best interests of the children, I consider the judge found at paragraph 25 that the children had always had regular contact with their father and he supported them financially and emotionally. The judge identified that in the light of the mother’s current financial circumstances she would be unlikely to be able to afford to send the children to Jamaica to visit him and there would be a significant disruption to the lives of the two children and the difficulties with their mother who would no longer be able to share their parenting with him. The judge clearly accepted that the appellant’s daughters would lose contact with their new baby brother which would have a further deleterious affect on the children.
26. I do find that it was an error that the judge took into account that he would be eligible for revocation of a deportation order had such an order been made, and as Mr Norton pointed out, there would have been no family life back in 2005. The question is whether that is material.
27. The balancing exercise in this matter is the strength of the public interest against the needs of the best interests of the children and the other relevant factors. The judge clearly took into account that the appellant knowingly admitted reference to his previous convictions, but that it was eleven years since he was last convicted, bearing in mind the support that the mother placed on the appellant and the practical and emotional impact it would have on the daughters, including one who was assessed as potentially having ADHD, and the devastation that it would cause if the father would be removed because of the important part he had played, that it would be unduly harsh to remove him. The judge rightly factored in that his relationship with his new partner would not add a great deal of weight, but did in the final analysis conclude at paragraph 30 that it would be unduly harsh for the children to remain:-
“without him because he has been in their lives for the whole of their lifetime and he is a considerable support not only to them but to their mother and their extended family would find it difficult to cope practically and financially without his support”.
28. The judge took into account the range of factors including those specific to the children, as well as the appellant’s offending and his previous dishonesty, not least his applications. The judge assessed the best interests of the children finding that it was important for them to remain in a close relationship with their father and to continue to rely on his support. The consideration of he revocation factor, in my assessment, played a very small part in the analysis overall and insufficient to unsettle the decision.
29. I specifically raised the factor of Section 117 at the hearing. The judge did specifically note Section 117C in relation to the deportation of foreign criminals and that it was in the public interest, and noted that the more serious the offence committed by the foreign criminal the greater the public interest in deportation of the criminal, but nonetheless the exceptions in relation to the appellant still applied. The judge did take into account that the appellant had remained without leave from 2000 at paragraph 22 of the decision, and also noted that he had omitted to mention his convictions.
30. On balance I find that the judge made a series of findings that she was entitled to make, having reference to relevant factors and applying the correct statutory criteria and approaching the matter in line with Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60. The Tribunal had a clear view of the facts and the family circumstances and cited the correct statutory and immigration provisions. The judge ascribed weight to the various factors and was clearly aware of the significance and importance of the public interest and the obligation on the Secretary of State to deport foreign criminals. The judge applied the relevant exception under the Immigration Rules, which are a complete code, to the appellant, and made a specific finding that his removal would have an unduly harsh effect on the children. As stated, the effect does not have to be excessive but it is clear that the judge’s view of the age of his conviction reduced the weight to be accorded to the public interest when balancing it against the interests of the children.
31. I find that there is no material error of law and the decision of First-tier Tribunal Judge Grimmett shall stand.
32. No anonymity direction is made.

Signed Helen Rimington Date 8th February 2017

Upper Tribunal Judge Rimington