Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: DA/01776/2014
DA/01777/2014
da/01778/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 February 2017
On 31 March 2017

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

Su
VU
SUU
LU
(ANONYMITY DIRECTIoN MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr M Jaufurally, Solicitor, Callistes Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appeal of these appellants comes back before me following my decision promulgated on 15 December 2016 in which I found that the First-tier Tribunal (“FtT”) erred in law in allowing the appeals. I set the decision aside for it to be re-made in the Upper Tribunal.
2. In order to set this, my further decision, in context, the error of law decision is reproduced in full as follows:
“DECISION AND DIRECTIONS
1. I refer to the parties as they were before the First-tier Tribunal (“FtT”). Where the expression “the appellant” is used, that is a reference to the first appellant.
2. The first appellant is a citizen of Nigeria born on 1 December 1976. The appellant has two children, V and S who were born on 6 October 2008 and 23 August 2010, respectively. All three were appellants before the FtT. There is a further child by the name of L whose date of birth is 18 October 2005. It was accepted before the FtT that she should also be treated as an appellant. Accordingly, L is also an appellant in these proceedings. The reason that she is to be named as an appellant in these proceedings is because there was a notice of immigration decision in her case and although no dedicated notice of appeal in her case has been located, she is certainly named on the notices of appeal of the other appellants as a co-appellant. Accordingly, there are four appellants in this appeal.
3. The appeals came before the FtT as a result of the respondent’s decision to refuse to revoke a deportation order. That decision was made on 1 September 2014. The deportation order itself was made in consequence of a conviction of the first appellant on 8 December 2005 at Highbury Corner Magistrates’ Court for using a false instrument, namely a passport in another person’s name. That use of a false passport was apparently to attempt to obtain a national insurance number. The result of his conviction was a sentence of 12 months’ imprisonment.
4. In the appeal before the FtT the First-tier Judge (“FtJ”) referred to the fact that the appeal had previously been before the FtT. The appeal was subsequently remitted to the FtT by the Upper Tribunal because it had found on 21 December 2015 that the FtT had erred in law in its conclusions.
5. The FtJ in the appeal before me referred to the respondent’s reasons for the decision as set out in the refusal letter. Those reasons included an acceptance that the appellant was in a genuine and subsisting relationship with his three children. At the time it is said that they were not British citizens and there was no evidence that their mother was a Dutch national. It was accepted that the eldest child, L, had lived in the UK for at least seven years immediately preceding the date of the decision. It was accepted by the respondent at that stage, that is to say of the decision letter, that it would be unduly harsh for L to remain in the UK without the appellant because there were no other family members in the UK able to care for her. The respondent noted the appellant’s claim that the children’s mother had abandoned them and that they had no contact with her. That situation however, altered because of the appearance of a person who identified herself as 'LO'. This was flagged up in a preliminary issue before the FtT. The social worker, whose name is Amma Kusi-Appaui, wrote a letter which referred to her involvement with the children, she being a social worker.
6. At [25] of her decision the FtJ referred to her report or letter consisting of two pages to the effect that the social worker had encountered the children with a woman leaving the house. When asked who she was the woman said she was a friend who was caring for the children and that the appellant had thought the meeting was to be held at a local authority office. The woman gave her name as LO, together with her date of birth and address. She then said that she was a sister of the appellant’s wife and then said that she was the appellant’s wife’s aunt. The social worker expressed the view that LO was in fact ZG who is the mother of the children.
7. The Home Office representative at the hearing before the FtT, asked the Tribunal to adjourn the hearing and to issue a witness summons for LO to appear. It was already apparently established that the social worker was willing to attend the hearing. The application for a witness summons was objected to on behalf of the appellants. The judge at [28] stated that she adjourned briefly to consider the issue of the witness summons “but refused the respondent’s application”. No further reasons were given for refusing the application.
8. The FtJ then referred to various aspects of the first appellant’s evidence, setting it out in detail. She referred to submissions on behalf of the parties, again setting them out in extenso. In her conclusions she referred to the evidence in relation to the person said to be LO. There was also other evidence in relation to the involvement of someone who was described as having accompanied one of the children, S, to a medical appointment. That is contained in a letter from Whittington Health NHS and the report stated that the child S was accompanied by his mother and there were other references in the report to the person said to be the mother.
9. The FtJ referred to the fact that the social worker inspected the premises at which she had seen the person known as LO, and that there was no evidence to suggest alternative sleeping arrangements for the appellant, it apparently being the case that he shared a room with the children. The social worker’s view was reflected at [58] of the decision to the effect that the children resembled LO and, to summarise, LO’s behaviour suggested that she was in fact the mother of the children. The FtJ concluded that she had no further reliable evidence about that.
10. At [59] she referred in more detail to the letter from Whittington Health in respect of S who was seen on 12 May 2015. She quoted from the letter in terms of what the mother’s involvement was at that medical appointment. She concluded at [60] that the person described as the mother of S had knowledge and understanding of her son which she would not have had if the appellant’s evidence is believed.
11. She referred to an earlier report in the appellant’s bundle stating that S lived with his parents and two siblings and that a case history and discussion with parents were carried out as part of the initial assessment. She concluded that the appellant was an unreliable witness and that she did not believe he was telling the truth when he said that the mother was “not really” involved with the children and that she had not seen them for six or seven months and had just made telephone calls to ask about them.
12. The FtJ concluded that the appellant had shown himself to be a person prepared to say anything if he thinks it helpful to him. She referred to the appellant having used deception when dealing with the immigration authorities and noted the appellant’s poor immigration history. She found at [61] that the appellant had not been telling the truth about his family and domestic circumstances. She also concluded that the attempt to persuade the Tribunal that he did not understand the word “abandoned” in terms of the mother having left the children, was not credible and in the same paragraph she found that she did not have sufficient evidence about the true nature of the appellant’s domestic circumstances or those of the mother of the children to make firm findings.
13. She found however, that the appellant is not the sole carer of the children and that the children’s mother had not abandoned them.
14. Further in her decision she referred to the fact that L is almost 11 years old and has lived in the UK for all her life. She referred to evidence suggesting that she was doing well at school and showing a particular flair for creative writing. She concluded that there was no evidence about the nature and extent of her knowledge of Nigerian culture and customs and there was also uncertainty about the conditions in which she and the appellant would be living if returned to Nigeria. She concluded that there was no evidence that family support would be available. She did not accept the appellant’s evidence that he would not be able to obtain any work, but found that initially circumstances would be difficult for L being away from the culture in which she has grown up ,and friends she has made.
15. Referring to the decision in Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 00197(IAC) the FtJ said that it was in the best interests of children to have both stability and continuity of social and educational provision and the benefit of growing up in the cultural norms of the society to which they belong. She referred to the issue of lengthy residence and the conclusion in Azimi-Moayed that seven years from the age of 4 is likely to be more significant than the first seven years of life. She referred to the appellant’s criminal offence confined to one offence committed 11 years ago and although the sentence brought him within the provisions of paragraph 398(b), it was a single offence not involving violence or drugs nor was it of a sexual nature. She referred to the appellant not having re-offended.
16. At [65] she stated as follows:
“Considering the circumstances relevant to L in the round, including the appellant’s immigration and criminal history, I am satisfied that it would be unduly harsh for her to live in Nigeria and, despite the unsatisfactory state of the evidence I also find it would be unduly harsh for her to remain in the UK without her father.”
17. At [66] she said that the appellant could not take advantage of paragraph 399 of the Rules in relation to his two younger children but in the light of her findings in relation to L she applied the same findings to the appellant’s two younger children, concluding that it would not be in the best interests of them to be separated.
18. She finally concluded then that it would not be in the best interests of any of the children to be removed from the UK which would mean losing the safety net of social services. In the final paragraph, reference is made to sections 117A-C of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
19. The respondent’s grounds of appeal to the FtT refer to the refusal to adjourn the hearing for a summons to be issued for LO to attend. The evidence that was before the FtJ in relation to that person’s involvement with the children is referred to. It is said that the FtJ had not given reasons for refusing to issue a witness summons. It is also submitted in the grounds that the FtJ had acted unfairly in failing to give reasons for refusing the application for a summons and for refusing to acknowledge the strong legitimate case for a summons to be issued.
20. The grounds also contend that those failures on the part of the FtJ are magnified when one looks at certain parts of her decision in terms of her having no further reliable evidence, so she said, about the social worker’s view that LO is the mother of the children and her conclusion at [61] that she did not have sufficient evidence about the true nature of the appellant’s domestic circumstances or those of the children's mother to make firm findings.
21. Reference is made in the grounds to the burden of proof being on the appellant to establish that his deportation would have an unduly harsh effect on the children. Complaint is also made in the grounds about the consequent conclusions by the FtJ in relation to the applicable paragraphs of the Immigration Rules and also to her conclusions in terms of s.117 of the 2002 Act. It is also asserted that the FtJ, to summarise, did not fully reflect the public interest in terms of society’s view of criminal offending, and other aspects of the appellant’s behaviour, for example being an absconder, using a false name when dealt with by the immigration authorities, and his entry to the UK in the first instance.
22. In submissions on behalf of the respondent, Mr Melvin relied on the grounds. He submitted that notwithstanding the limited findings that the FtJ did make in relation to the appellant’s credibility, it was nevertheless encumbent upon her fully to reflect the circumstances as they related to the children’s position in the UK with reference to the person that the respondent contends on the evidence is their mother. Accordingly, it was necessary for her to have adjourned the hearing so that she could have the full picture.
23. In essence, it was said that the other grounds to a great extent reflect the FtJ’s failure to assess and give reasons for the conclusion that it would be unduly harsh for L in particular to remain in the UK.
24. Mr Waithe on behalf of the appellants submitted that no purpose would have been served by issuing a witness summons. It was submitted that the appellant was asked questions as to LO and he gave his account. I was referred to the submissions made on behalf of the appellant at the hearing before the FtT in terms of the opposition to the issuing of a summons, including for example that it would prolong proceedings.
25. It was ultimately accepted that the FtJ should have given reasons for refusing the summons but it was also pointed out that the application on behalf of the respondent was made at the last minute when the parties had had notice of the hearing for some considerable time. The application should have been made earlier it was submitted. It was argued that the FtJ’s conclusions in terms of undue harshness in the light of her findings to which I was referred, show no error of law and it was submitted that there is no error of law otherwise in her decision.
My assessment
26. I am satisfied that the FtJ erred in law and my conclusion in that respect relates mainly to her conclusion in terms of undue harshness. At [65] of her decision she said that it would be unduly harsh for L to live in Nigeria but then referred to the unsatisfactory state of the evidence. It seems to me that although the FtJ referred to some of the circumstances of the child L, there is no explanation as to why, in the context of the findings that she had made in relation to a person who certainly on the evidence on one view is the children’s mother, it was concluded that it would be unduly harsh for her to remain in the UK without the appellant.
27. Even if L is not in fact the children’s mother there is no recognition in the FtJ's decision of the fact that undue harshness would have to take into account all the circumstances, including the involvement of this particular individual in the children’s lives, or the extent to which she could be expected to provide care for them in the appellant’s absence. It appeared on the evidence that LO had some close involvement with the children and certainly a closer involvement than the appellant was apparently willing to acknowledge. That is a fundamental error in the FtJ's decision which requires the decision to be set aside.
28. I am also satisfied that there is an error of law in the FtJ failing to give reasons for refusing to issue a witness summons. It may be that she concluded that the application should have been made earlier or that the issuing of a witness summons would have had no material benefit in terms of the resolution of the issues she had to determine. However, despite my pressing Mr Waithe early in his submissions as to what reasons were given by the FtJ for refusing to issue the witness summons or to adjourn the hearing for L to attend, no reasons could be pointed to and indeed none are apparent in the FtJ’s decision.
29. Whether that would otherwise have prompted me to set the decision aside is not a matter that I need to decide in the light of my conclusions in terms of the issue of undue harshness which is undoubtedly a reason for setting the decision aside.
30. The remainder of the respondent’s grounds again, do not require separate consideration because the issue of undue harshness has to be considered in the context of all the circumstances. There will have to be a wholesale reassessment of the extent to which the public interest requires the first appellant’s deportation, taking into account all the circumstances including undue harshness, and the circumstances of the children in the UK.
31. Accordingly, I am satisfied that the decision of the FtT involved the making of an error on a point of law. Its decision is set aside. It is not appropriate for the matter to be remitted to the FtT having regard to the findings of fact that had been made by the FtJ which are not infected by the error of law. The Senior President’s Practice Statement at paragraph 7.2 does not militate in favour of a remittal and the decision will therefore be re-made in the Upper Tribunal.
32. It was not possible for the decision to be re-made at the initial hearing before me, in the light of the further evidence that either or both parties have indicated that they may wish to call.
DIRECTIONS
1. In relation to any further evidence that either party wishes to call, there must be a witness statement drawn in sufficient detail to stand as evidence-in-chief such that there is no need for any further examination-in chief. This direction must be strictly complied with.
2. The appellants and their representatives are to note that the Tribunal considers that it would be assisted by evidence from ZG and LO (whose full names are given in the decision of the First-tier Tribunal).
3. A failure to provide a witness statement and to call as witnesses ZG and LO is likely to be taken into account by the Tribunal, and may include the drawing of inferences adverse to the appellants in relation to the issues to be determined.
4. Evidence from ZG and LO is to include evidence of their identity.
5. Any further evidence in the form of witness statements or documentary evidence must be filed and served no later than 14 days before the next date of hearing.
6. The findings of fact made by the FtJ that are not infected by the error(s) of law are preserved. At the next hearing the parties must be in a position to be able to make submissions as to what findings of fact should be preserved.”
3. It can be seen from the directions given in the error of law decision that I considered that evidence from the person who I identified as ZG/LO, who it turns out are one and the same person, would have assisted. She did not attend the hearing and no witness statement was provided. It was explained on behalf of the appellant that she was not willing to attend, and the solicitors could not force her to co-operate. As is also clear from my directions, her absence I considered was likely to be taken into account in terms of the drawing of any inferences adverse to the appellants in relation to the issues to be determined.
4. It can be seen that before the FtT an issue arose in terms of whether there should have been a witness summons for the person I shall now identify as ZG. This was further canvassed before me at the resumed hearing. However, neither party invited me to adjourn the hearing to secure her attendance and there was no application on behalf of either party for a witness summons. Both parties agreed that the hearing could proceed on the basis of the evidence presently available.
5. The further evidence that was provided consisted of a bundle of 31 pages comprising a further witness statement from the appellant dated 16 February 2017, a letter from the Children and Young People’s Service at Haringey Council, dated 1 October 2013 and a Child and Family Assessment dated January 2015, a written agreement between the appellant, his wife and Haringey Children and Young People’s Service dated 16 July 2013, a child protection conference report dated 13 May 2015, and a child protection plan.
6. The first appellant gave oral evidence.
The Oral Evidence
7. He adopted his most recent witness statement. In cross-examination, he said that LO and ZG are the same person. When asked if she was working he said that she used to work at Tesco but does not work there any longer. She has a national insurance number but he does not know the number. She uses the name ZG for work (giving her full name). She is a Dutch national. He is not in possession of any of her documents to prove that she is a Dutch national.
8. They live together at the same address. He is not in a relationship with her.
9. He confirmed his witness statement to the effect that she continues to ill-treat the children. The issue of her treatment of the children is being dealt with by the school and not by social services. The school would have records but they did not provide him with any and he did not ask for any. He denied that he was trying deliberately to shield her from the authorities.
10. If he had to return to Nigeria, she would not care for the children. He does not know who would.
11. He is not working at the moment although he had been. As to who looked after the children when he was at work, he said that they went to school and he did not stay at work for long. He was more at home than at work. Before they started going to school both of them looked after the children.
12. ZG had told him that she would apply for leave to remain now that their daughter L has British citizenship. She went to Croydon to make the application in January this year. Although L obtained British citizenship in May 2016, he does not know why ZG waited until January of this year to make the application. He does not know why there is no record of ZG on Home Office systems. He does not know why she uses two names.
13. Referred to the Child and Family Assessment, he said that he does not know why the person writing that report thought that ZG and two of the children have been granted leave to remain. In 2015 none of the children had leave to remain.
14. There was no re-examination at this point. In answer to my questions he agreed that he had lied to the judge at the hearing before the First-tier Tribunal in stating that LO/ZG was a family friend, and in relation to not having seen her since six or seven months before that hearing. He agreed that he had told other lies in his evidence before the FtT. As to why he had not told the truth at that hearing, he said that ZG did not want to support his case and so he decided to deal with it without her, that is not rely on her, for the sake of the children.
15. As to what physical mistreatment she still inflicts on the children, he said that she still uses the cane when she gets angry. She and he lead separate lives. The mistreatment would happen when he would either go to the shops or go to work.
16. I then asked the appellant why he had previously said that he did not work. He said that maybe it is only once in a while that he works, and not every day.
17. In further cross-examination he said that the work that he does is cash-in-hand so there are no documents to prove it. He does not pay tax or national insurance because it is cash-in-hand. He sometimes works in clubs as a toilet attendant, or does garden clearing, and construction labouring jobs. The work in the toilets is every weekend, on Saturdays and Sundays. The other jobs could be once every month, three months or six months.
18. He financially supports the family as much as he can. He pays for the electricity and the gas but the house belongs to a friend of ZG. She lives with them as well. ZG takes care of the rent, although he does not know if she actually pays. They had lived there since about 2010.
19. It was not true that ZG provides the accommodation and financial support for the children, because she has not worked for some time.
Submissions
20. In submissions Mr Melvin relied on his skeleton argument. He referred to the findings made by the FtJ.
21. He said that it was accepted that the appellant has a genuine parental relationship with his children, and that his eldest daughter L obtained British citizenship in May 2016. The other two children are Nigerian nationals by birth and there was nothing to indicate that they had acquired Dutch nationality after their mother.
22. Later in submissions it was conceded that it would not be reasonable to expect L to go to Nigeria with the appellant, now that she has British citizenship. It was however said that if the facts that are now known were known about before and before she had British citizenship the situation might have been different.
23. The children’s mother had obviously refused to give any evidence about the family’s domestic circumstances. The evidence from Haringey Council in the Child and Family Assessment suggests, contrary to the first appellant’s evidence, that he and ZG are in fact in a relationship. No documents have been provided in relation to her identity, employment or any leave or entitlement to remain in the UK. The first appellant himself has never been granted any leave. The Child and Family Assessment Report was available for the hearing before the FtT but was obviously held back. That is further evidence of deliberate deception on the part of the first appellant or ZG, and the evidence provided has been provided piecemeal.
24. There was no evidence of social services involvement after the date of the report. It was not credible that her mistreatment of the children is only being dealt with by the school. The likelihood is that she is caring for the children. The likelihood is also that she is the one who is financially supporting the family. There was evidence that she was working at Tesco and no evidence that that employment had ceased. There was little or no evidence of any financial support that the first appellant was providing for any length of time. The evidence that he gave of cash in hand is vague and the construction industry is usually strict in relation to those matters.
25. In terms of whether it would be unduly harsh for the children for them to be separated from the appellant by his return to Nigeria, the evidence indicated that they would be cared for by their mother, albeit that her status is not clear.
26. Mr Jaufurally submitted that there was no evidence that the children’s mother was the sole provider. The Child and Family Assessment Report did say that she was working at Tesco but also said that he was working in construction.
27. It was accepted that the credibility of the first appellant was an issue. To his credit he had admitted that he had lied to the FtT. The question was whether it was unduly harsh for the children to be separated from him.
28. It does appear that social services had not been involved with the family since 2015. However, information that S for example, gave to social services as revealed in the Child and Family Assessment Report, made it clear that the relationship with his mother was not good, he having said that his mother was rude and bad to him. Similarly, the evidence in that report was to the effect that the children’s mother always appeared to be tired and unable to manage the care of the children which led to her hitting them.
29. There was therefore pressure on the whole family, and if the appellant is removed that pressure would return and the welfare of the children would be at risk.
Conclusions
30. There was no dispute between the parties as to the appropriate legal framework. It is worth remembering however, that the decision under appeal is a decision to refuse to revoke a deportation order. As explained in the error of law decision at [3], that decision was made on 1 September 2014 and it resulted from the first appellant’s conviction on 8 December 2005 at Highbury Corner Magistrates’ Court for using a false instrument, namely a passport in another person’s name, apparently in an attempt to obtain a national insurance number. He received a sentence of 12 months’ imprisonment.
31. Paragraph 398(b) provides that the deportation of a person from the UK is conducive to the public good and in the public interest where they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months. That applies to the first appellant. Paragraph 399 provides as follows:
“399. This paragraph applies where paragraph 398 (b) or (c) applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported.”
32. S.117A-C of the Nationality, Immigration and Asylum Act 2002 (”the 2002 Act”) provides as follows:

“PART 5A

Article 8 of the ECHR: public interest considerations

117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).

117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a)are less of a burden on taxpayers, and
(b)are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.

117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted…”
33. S.117D of the 2002 Act defines what is meant by a “qualifying child”. It is not disputed but that the appellant’s daughter L is such a qualifying child.
34. In terms of the expression “unduly harsh”, the decision in MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617 is relevant. At [26] the court stated that:
“The expression ‘unduly harsh’ in section 117C(5) and Rule 399(a) and (b) requires regard to be had to all the circumstances including the criminal’s immigration and criminal history.”
35. Lastly, paragraph 390 states as follows:
“Revocation of deportation order
390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:
(i) the grounds on which the order was made;
(ii) any representations made in support of revocation;
(iii) the interests of the community, including the maintenance of an effective immigration control;
(iv) the interests of the applicant, including any compassionate circumstances.”
36. Further, paragraph 390A provides that:
“Where paragraph 398 applies the Secretary of State will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors.”
37. Mr Melvin, quite rightly, referred to the issue in terms of the appellant’s daughter L being required to leave the UK and live with the appellant in Nigeria, as involving consideration of whether that would be ‘unduly harsh’. That indeed is the correct test and not, as I initially thought and indicated to the parties, one of ‘reasonableness’. The unduly harsh threshold was introduced on 28 July 2014, in substitution for the ‘reasonable’ test. The decision in this case was made on 1 September 2014, therefore after the revised version of paragraph 399 came into force.
38. In any case, it was conceded on behalf of the respondent that it would be unduly harsh to expect L to live in Nigeria with the appellant. I need say nothing more about that aspect of the Rules.
39. The nub of the case, as recognised by both parties, is whether it would be unduly harsh for L, and the other two children, to remain in the UK without the appellant.
40. It is perfectly clear, as I pointed out at the hearing, that the first appellant, is someone with little, if any, credibility. At [61] of her decision, the FtJ said that “The appellant has shown himself to be a person prepared to say anything if he thinks it helpful to him”. It seems to me that the FtJ in that conclusion got the measure of the first appellant entirely accurately. I endorse what she said in that respect.
41. It was said on behalf of the appellant in submissions that he accepted that he had lied to the FtJ. However, he had no choice but to do so given the very different way that his case is now put, in terms of his concern for the welfare of the children should they remain with their mother.
42. The appellant told blatant lies at the hearing before the FtJ on 6 July 2016, amongst other things by stating LO (ZG) was a family friend, and by not admitting why she told the social worker that she was his wife’s sister. He said that he did not know why ZG had a key-ring containing a photograph of their three children on it. He lied when he said that he had not seen his wife, ZG, for six or seven months, and that she does not really have any involvement with the children, only telephoning to ask about them. He lied when he said that his wife had left them in 2011, and that ZG had been a friend for 10 years and that they were “just good friends”.
43. In evidence before me the appellant initially said that he was not working. His evidence evolved from that point through to admitting doing some work, to actually working on a regular basis. There is very little reason to believe anything that the appellant has said, except where there is some verifiable objective evidence in support of his account.
44. The appellant said in evidence that ZG still ill-treats the children. However, his evidence that there is no social services involvement and that the matter is dealt with only by the school, is not credible. I do not for one moment accept that if the school had any reason to believe that the children were being ill-treated the matter would not be referred to social services, and that the matter would simply be kept within the school environment. That simply cannot be true.
45. The Child and Family Assessment, belatedly provided by the appellant, gives the date the assessment started as 21 January 2015. To summarise, it refers to an assessment in July 2013 showing that the children’s mother was physically punishing the children, including at times with the use of implements. As at the date of the assessment in January 2015 the children were reportedly making similar allegations once again. They did not disclose that they were hit by their father, the first appellant, who they described as being kind to them and who tells their mother not to hit them. The report states that this (his interventions) are not having any impact upon her responses to the children. It states that, as previously, she presents as tired, and that it had previously been suggested that unless her working pattern changed there would be a continuing risk of further physical chastisement of the children when she returns from a night shift when she is tired and short-tempered and attempting to get them to school.
46. A school referral on 22 January 2015 referred to the youngest child, S, having drawn a picture of his family, but refusing to include his mother in the picture. In his drawing of two houses “a happy house” and “a sad house” all of his relatives were placed in the happy house apart from his mother, he having said that she was in the sad house because “she beats all the children”. He went on to say that she beats them all with a cane. At the time he was aged 4 years and was said to be suffering from language difficulties. All three children are said to have disclosed that their mother had slapped them with her hands across their faces when she is angry. There it is stated that none of them said that she had used an implement.
47. The profile for each child was basically the same in terms of their having reported that their mother would physically chastise them, but that their father did not. Under the section headed “Parent’s profile and family relationships” it states that both parents were at that time providing a good level of basic care for the children in terms of food, warmth, shelter and clean and appropriate clothing. The home environment was described as generally clean and tidy and the children had clean and appropriate bedding. It goes on to state that the children are clearly very loved and generally well-cared for. Some methods of chastisement used by both parents were said to have been inappropriate, for example being made to kneel in the corner of a room whilst holding their arms in the air.
48. The “needs and risks” section of the assessment refers to physical chastisement being regularly used against the children, and that that at times is likely to involve using an implement, although denied by both parents. It states that the parents’ current working patterns appear to be increasing the pressure on them to parent the children without the use of physical punishment. Their mother is described as often being very sleep deprived and has admitted that this may make her more likely to lash out and use physical chastisement. The children are also said sometimes to lack adequate supervision due to their mother sleeping in the home during the daytime. L reported feeling worried and a little frightened of her mother and their mother is in turn described as having displayed a lack of emotional warmth towards the children, in particular L. They have a limited support network in the community.
49. In concluding, the social worker stated that there had not been any significant changes since 2013 and the children are still making disclosures of physical abuse by their mother.
50. A document entitled “Review Child Protection Conference”, dated 13 May 2015 states that there were not any significant concerns at that time except that the social worker had not been able to meet with the children’s father, the first appellant, because of his work commitment. The children and their mother are said at that time to have been engaging well with the current support services and their mother has engaged with all professionals. It is said that there are currently no major concerns about the family.
51. L disclosed that there had been great improvement in terms of discipline at home and that when she is naughty her mother gives her a warning and tells her not to do the same thing again. There had at that time not been any recent incidents of physical abuse towards her or any of her siblings. She said that she gets along with everyone at home and is closest to her father. She also said that she would be able to talk to her father about any concerns or worries.
52. V, who was born on 6 October 2008, stated that he liked it when his father took him to school and that he could talk to him. He also said that there had been no recent smacking from their mother and that the home is calmer and everyone appears to be happy. He said that when he is naughty his mother does not smack him but warns him.
53. S at that time (13 May 2015) is stated as having developmental delays regarding his social communication and that in terms of education he was slightly behind his peers. He sees a specialist for speech and language for delayed speech. The first appellant is said to help in various ways at home, including bathing the children and getting them ready for school, with their mother doing the school run.
54. The report goes on to state that since the initial Child Protection Conference, the children’s mother had engaged well with professionals and had worked in partnership with the recommendations of the child protection team. During visits to the family, she had been remorseful about her past actions and is showing insight into the impact that this has had on the children.
55. There was said at that time to be no concerns in terms of the children’s basic needs. They are said to be clearly much loved and generally well cared for. There was some concern about L misbehaving at school, but this was being addressed by the school and her parents.
56. ZG’s working arrangements at that time were still said to be that she works at nights in Tesco and leaves home at 9:30pm and returns at 7:30 in the morning. The first appellant was said then to be more supportive in the morning and sees to the needs of the children before he leaves home for work. He was said to work six days a week as a builder. He left home in the morning and did not return until 9:00pm.
57. That report, and indeed the Child and Family Assessment, refers to ZG and the children having been granted leave to remain. However, that is plainly not the case, with L only having been granted British citizenship in May 2016. There was no evidence at all that ZG had any status in the UK, and no evidence produced in relation to the status of V and S.
58. The Review Child Protection Conference also states that the children speak highly of their father and view him as a “protective factor” and someone in whom they can confide if they have concerns.
59. The conclusion in relation to risk was that there is such a risk of physical chastisement from ZG towards the children if she is under pressure or stressed from work. The ultimate recommendation was that the children cease to be subject to a CP (presumably Child Protection) plan and further work with the family continues under a Child in Need Plan.
60. Under the section headed “Team Manager Analysis”, it states that there have not been any further reports of physical abuse and the children are reported to be happy and settled in their home. The family present as a close and tight-knit family unit who are supportive of one another. Both parents are said to be employed and managing a busy household. The parents were said then to work together as a team to get the children ready for school and there seemed to be less stress around these times. All three children had expressed their love for their father and would confide in him if they were worried about anything.
61. The Updated assessment/Progress on CP plan is undated and the timescales column for the actions to be taken has not been completed. I do not regard that document as being of much assistance.
62. The first appellant’s evidence, that he and the children’s mother ZG, are not in a relationship is contradicted by those reports to which I have referred, and no more recent reports have been provided. That evidence is very much of a family unit working together, with the parents closely engaged with one another and with their children. Given the first appellant’s very limited credibility, I do not accept what he says about their not being in a relationship.
63. Similarly, I do not accept what he says about there being continuing physical chastisement from the children’s mother. The most recent report in that respect indicates that she has been and continued, at that time at least, to engage with support in terms of using other, more appropriate, methods of discipline. The risk of physical chastisement to the children at that time had receded. Furthermore, as I have already indicated, the first appellant’s evidence about it being the school that is dealing with the issue of her physical chastisement of the children is simply not credible.
64. Likewise, I do not accept what he says about ZG not being in employment. The documentary evidence in terms of professional involvement with the family indicates that she was in employment in 2015, and indeed that was identified as being the source of, or a source of, the problem in terms of her inability to manage the children. In my view the first appellant could have, but did not, produce evidence that his wife had ceased employment. I do not accept that he does not have access to her documents. They are in a partnership and that is evidence that could have been provided.
65. It is in the first appellant’s interests to claim that his wife is no longer in employment in order to fortify the argument that he should be allowed to remain, being the only source of financial support for the family. For the reasons I have given, I do not accept his evidence in that respect.
66. In considering the issue of whether it would be unduly harsh for L to remain in the UK without the appellant, it is plain that this involves a consideration of her best interests. Although sometimes such an assessment is problematic, I do not consider it to be so in this case. It is axiomatic that a child’s best interests are, generally speaking and all other things being equal, to be brought up by both parents in a loving and stable family environment. That is plainly where L’s best interests lie in this case. Notwithstanding the issues that have arisen in terms of, in particular the children’s mother’s, approach to chastisement, the assessments indicate that the children are in a loving and stable family environment.
67. The first appellant’s removal to Nigeria would in my judgement affect the stability of that environment and L’s welfare, and which would be adverse to her best interests. That is also taking into account the close relationship that she and the other children have with the first appellant, although of course, in many, if not most, deportation cases where there are children involved, the children will be emotionally affected by the removal of a parent.
68. It is clear from the reports to which I have referred that there is genuine affection between the first appellant and his children and vice versa. More importantly, it appears that he has been a moderating influence on ZG’s inappropriate approach to discipline. Up until 2015 at least, it seems to me that the children saw the first appellant as, in some senses, a source of refuge from their mother.
69. I consider that there is merit in the submission on behalf of the appellants in terms of the consequences of removing the first appellant from the family environment. Whilst there is no up-to-date independent evidence on the issue, it is reasonable to conclude that if the children’s mother was left on her own to cope with the children’s upbringing in all its respects, this would re-introduce the anxieties and stresses that were evident before social services’ intervention. I cannot see that this would be anything other than detrimental to L and the other children. No expert evidence is needed to come to that view.
70. The assessment of ‘undue harshness’ is to be made with reference to all the circumstances. That includes the circumstances of the first appellant’s conviction. The paragraph 390 considerations overlap to some extent.
71. The offence involved the use of a passport in another person’s name, or perhaps more accurately according to the decision of the FtT on 30 October 2006 at [24]-[25], using a forged Dutch passport to obtain a national insurance number. He was sentenced to 12 months’ imprisonment.
72. I bear in mind that the conviction occurred in December 2005, and it has not been suggested that the appellant has been convicted of any other offences since. Thus, the offence was committed over 12 years ago and the deportation order was made in 2006.
73. The representations in support of the revocation of the deportation order, are evident in the facts to which I have referred in terms of the first appellant’s reliance, in particular, on his family circumstances.
74. The interests of the community are also a factor to be taken into account, including the maintenance of an effective immigration control. In this respect it is important to bear in mind that the appellant seems to have entered the UK under a false name, was convicted in that name and was subject to the deportation order in that false name. Similarly, he applied for asylum in the same false name, and lodged an appeal in a false name against the decision to make a deportation order. The appeal against the decision to make a deportation order was dismissed as long ago as 31 October 2006.
75. It does not appear that it was until June 2012, according to the decision letter at [21], that his real identity was discovered, the decision letter going on to state that the first appellant had applied for leave in two different identities.
76. The appellant has therefore, blatantly abused the system of immigration control, and has repeatedly attempted to deceive both the immigration authorities and the Tribunal, on more than one occasion.
77. In terms of the interests of the community, I cannot see that the community’s interests vis-à-vis the appellant alone, indicate anything other than that he should leave the UK because of his conviction, blatant deception, and abuse of immigration control.
78. His own interests are also a factor to be considered under paragraph 390. Those interests however, can carry very little weight indeed. His desire to remain with his family has some weight, but given his background it cannot carry much weight in the assessment of all the circumstances. His obvious desire to remain in the UK, i.e. as a place to live, carries no weight whatsoever.
79. Having assessed what I consider to be L’s best interests, it is also to be observed that a child’s best interests are not the only consideration to be taken into account. All the other matters to which I have referred, namely the appellant’s poor immigration history and record of deception, aside from the very great public interest in deportation of foreign criminals, are very much to the fore.
80. Returning to the issue of whether it would be unduly harsh to separate L from her father, I have noted that in the reports some cause for concern had been expressed in relation to L’s behaviour at school. She is said to have imitated the behaviours of the ‘wrong’ children in her class which resulted in her being disrespectful towards her teacher at times. Having said that, there is no significant evidence, and no up-to-date evidence, of L’s behaviour being particularly challenging or concerning.
81. Nevertheless, considering the evidence overall, I do find that it would be unduly harsh for L to remain in the UK without the first appellant. It is the case that deportation inevitably involves hardship, upset and emotional distress, involving as it does the splitting up of a family. That is plainly not a sufficient basis from which to conclude that deportation should not eventuate, or that a deportation order should be revoked.
82. However, it does seem to me that in this case there is information that goes beyond what could be described as the ‘ordinary’ or ‘to be expected’ in terms of the potential adverse effects on the family of the first appellant’s removal. The circumstances that prevailed before indicated that the children were significantly adversely affected by their mother’s approach to their upbringing in terms of chastisement, and that the children closely identified with their father, as opposed to their mother. They viewed him as a source of refuge and a protective figure.
83. Whilst the children’s mother would plainly be able to access support from social services, as she did before, even the idea that that support may become necessary, which I consider to be a very real prospect, helps to reveal the answer to the question of undue harshness in this particular case. It is not speculation to conclude that the appellant’s removal would once again re-introduce the stress factors that led to the adverse circumstances in which the children previously found themselves. Those circumstances are all too evident from the documents to which I have referred in detail. In that context it is relevant to take into account that in 2015 it was found that there was a recurrence of the harmful behaviour towards the children on the part of ZG that had been found in 2013.
84. The appellant himself deserves no sympathy and his conviction, and plain contempt for the system of immigration control, on a self-contained basis warrant his removal. My focus however, is on the question of undue harshness in relation to L in particular, in all the circumstances.
85. No argument was advanced before me in terms of the younger children, V and S who are neither British citizens nor have lived in the UK continuously for at least seven years, as per the Rules. Their circumstances do not come within paragraph 399(a). However, as regards V, born in October 2008, the restriction in relation to the 7 years immediately preceding the date of the immigration decision (for a child who is not a British Citizen) that applies in paragraph 399(a) does not apply in terms of an application of s.117C of the 2002 Act. The definition of a “qualifying child” under s.117D does not limit the 7 years’ continuous residence to the date of the immigration decision. Under that definition in the 2002 Act he is a qualifying child.
86. To reach the point of a consideration of him as a qualifying child, because I would be considering Article 8 more widely than within the strict confines of the deportation Rules, I would have to be satisfied that there were very compelling circumstances (paragraph 398) over above, in this case, 399(a). That would involve all the same matters to which I have already referred, but the point is a sterile one given my conclusions in terms of the first appellant’s relationship with L.
87. Accordingly, the appeal is to be allowed with reference to the Immigration Rules. The outcome of the appeal with reference to s.117C of the 2002 Act would be the same. It was not suggested otherwise by either party.
88. Although neither party addressed me on this issue, it is to be noted, as I indicated in the error of law decision, that L is an appellant in these proceedings. However, given that she is now a British citizen, she plainly cannot be removed and her appeal in its own right must inevitably be allowed on that basis.
89. Equally, the appellants S and V cannot be removed without either or both of their parents and their appeals would have to be decided in line with that in relation to the first appellant.
Decision
90. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision having been set aside, the appeals of each appellant are allowed.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Upper Tribunal Judge Kopieczek 31/03/17