Tribunal decisions

The decision

IAC-HX-MC/12-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01969/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 August 2016
On 25 November 2016

Before

upper tribunal judge conway

Between

THE Secretary of State FOR THE HOME Department
Appellant
and

Mr DANIEL [B]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr Tufan
For the Respondent: Mr Aghayara

DECISION AND REASONS
1. Mr [B] is a citizen of Nigeria born in 1968. This case arises out of the Secretary of State's decision of 14 October 2014 to refuse to revoke a deportation order. By a decision promulgated on 12 May 2015 Judge of the First-tier Tribunal Coleman allowed Mr [B]'s appeal against that decision under the Immigration Rules and in respect of Article 8 of the ECHR.
2. As Judge Coleman makes clear at paragraph 2 of her determination Mr [B] has a complex immigration history. It is not necessary to recount that history here, but I note that he has on various occasions used different names and identities in his dealings with the immigration authorities. It appears that he has been in the country since about 1999. On 21 September 2007 he was convicted at Southwark Crown Court of possessing an identity document with intent and sentenced to twelve months' imprisonment. He was subsequently served with notice of liability to deportation. At that stage he was using a different identity. Using the present identity he was granted leave to remain for three years in 2010 and then again in 2013. On 16 October 2013 his whereabouts in the UK came to light and he was no longer regarded as an absconder.
3. Mr [B] is married and has three children born 3 January 2007, 13 December 2008 and 14 August 2014. His wife and children are all British citizens. The Secretary of State has accepted that Mr [B] is in a genuine and subsisting relationship with his wife and children. She has also accepted that it would be unduly harsh for the children to be removed to Nigeria.
4. The Rules which apply to the revocation of a deportation order are set out by Judge Coleman in paragraphs [17] and [18] of her determination. Paragraph 399 provides that where a person has a genuine and subsisting parental relationship with a child under the age of 18 years, who is in the UK and is a British citizen, the Secretary of State must consider whether (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.
5. At [21] Judge Coleman states that the real issue before her in this case was in relation to paragraph 399(a) relating to the children. She then recounts the concession that it would be unduly harsh for the children to be removed to Nigeria and goes on to consider whether or not it would be unduly harsh for the children to remain in the UK without their father. In [22, 23 and 24] she analyses the actions of Mr [B], his immigration history, his use of different identities and a consideration of whether or not he had for a time returned to Nigeria.
6. As Judge Coleman notes at [25] none of that really matters. At [26] she cites the case of ZH (Tanzania) v SSHD [2011] UKSC 4 for the proposition that a very poor immigration history should not be the cause for punishing or blaming children. She then suggests that she must consider whether the damage to the children to be brought up without their father is outweighed by the poor immigration history or the public interest.
7. The only assessment of this is made at [32] where Judge Coleman states 'The simple question here therefore is whether to break up a family of three young children is disproportionate to the offence in this case'. She then states that she finds it would be disproportionate or unduly harsh to punish the children by making them either lose their father or the benefits of British nationality.
8. The Secretary of State sought permission to appeal which was granted on 1 June 2015.
Error of law
9. At the error of law hearing on 8 December 2015 before myself and the Right Honourable Lord Boyd of Duncansby the crux of the Secretary of State's submissions was that the First-tier Judge failed to place sufficient weight on Mr [B]'s immigration history and his offending when coming to the conclusion she reached. Further, she did not explain in her decision why it would be unduly harsh for the children of Mr [B] to remain in the UK without him.
10. We found material error of law stating in reference to the assessment made in [32] (referred to above)
'?
7. We considered that this is a quite inadequate consideration of the test which the decision maker must apply at paragraph 399(a)(i)(b) of the Immigration Rules. In considering whether it would be unduly harsh for the child to remain in the United Kingdom without the person who is to be deported, it is incumbent on the decision maker to look at the particular circumstances of the child. These would include whether or not there may be detrimental circumstances to the child's health or education or the care which they may be afforded without the person who is being deported. It may include an assessment of the effect of the economic circumstances of the family unit that is left in the United Kingdom. For example with young children it may be that a mother may have to give up work in order to look after them thus impacting on the family's financial situation. It would also include the ability of the parent who is being deported being able to maintain some contact through modern means of communication as well as the other support that is available to the children that might assist them in dealing with the separation.
8. None of these factors are addressed by Judge Coleman in her determination. Accordingly we find that there is an error of law and a decision falls to be remade.
9. Given the concession that it would be unduly harsh for the children to be removed to Nigeria, the only issue that is left for determination is whether it would be unduly harsh for the children to remain in the United Kingdom without (Mr [B]) ?'
Rehearing of the appeal
11. The case was set down for re-hearing before myself on that issue.
12. Following several adjournments the case came before me on 16 August 2016.
13. For the hearing a bundle containing statements by Mr [B] and his partner Ms Ndidi [N] were lodged. Also, several letters of support, a report by Mr Peter Horrocks an independent social worker dated 22 April 2016 and a letter (15 February 2016) from Hackney Learning Trust.
14. I heard evidence from Mr [B]. In examination-in-chief he adopted his statement. In cross-examination he said his real name was Daniel [B]. He accepted that a deportation order had been made against him in the name Philip Idowu and said he had left the UK under that name. He had not sought revocation of the deportation order from Nigeria as he did not know he could do so.
15. He was asked about his family situation. He has three children aged nine, seven and four. One, [C], who is seven is autistic. Asked if there is any medical report confirming such, he said it is in process. It needs several meetings. An expert is coming to the school. Also, although they live in Tower Hamlets she has to go to a centre in Hackney, a different borough.
16. In re-examination he was asked further about [C]'s current needs. He said that apart from the pending assessment the school has provided an additional teacher for her. Because they live in a different borough various criteria need to be satisfied.
17. He said that the family all live together. They pay more attention to [C] because her behaviour sometimes can be erratic and violent. They are working together with the school to help her.
18. I also heard evidence from Ms [N]. She adopted her statement. They live together in family. She is self-employed doing work braiding hair.
19. She said she could not cope without her partner if he was deported to Nigeria. He is a father figure particularly for the youngest child, Isaac. All the children need a father. [C] because she has difficulties needs more attention. Asked if her partner provides any financial support she said he is working full-time as a parking attendant.
20. In cross-examination the witness agreed that there was no diagnosis of autism for [C] and that a GP's letter dated July 2016 made no mention of it. She said the school is dealing with it.
21. In submissions, Mr Tufan said that 'unduly harsh' required a high threshold. Such was not reached in this case. Whilst there is some indication that [C] has some difficulties there is no diagnosis of autism. Even if she is autistic such would still not be enough to reach the threshold. There were no other particular factors in respect of the other children. Nor was there anything of substance in the social worker's report. It might well be that the children would suffer some emotional disturbance if Mr [B] were to be removed but such would be the necessary consequence of his criminality.
22. In reply, Mr Aghayara submitted that there was evidence that [C] could be autistic. It is clear she has special help at home and at school. She had an appointment pending at Homerton Hospital.
23. Mr Aghayara accepted that if the children were, as he put it, 'normal' children the high threshold would not be met. However, it was [C]'s problems which raised it to that level. The partner needs extra help in caring for [C]. Mr [B] plays his role as a primary carer. It was in the best interests of the children for their father to remain with them rather than in being in phone and electronic contact with them from Nigeria.
Consideration
24. In considering this matter the sole issue is whether it would be unduly harsh for the children to remain in the UK without their father.
25. I look first at the best interests of the children. I see no reason to divert from the conclusion of the First-tier Judge that the best interests of the children are served by being brought up by both parents. There was no challenge to the evidence that he is living with his partner and children as a family and that with his partner they take day-to-day care of them. Those best interests remain a primary factor in the assessment that must be conducted notwithstanding the provisions of section 117A-C and the Immigration Rules.
26. I note the report by the independent social worker and see no reason to doubt his assertion that were their father to be removed they would suffer 'trauma, distress and sadness' and that they would suffer 'emotional harm'. Such is supported by the GP who states that deportation would have 'definite emotional impact on his family.'
27. Per KMO (section 117 - unduly harsh) [2015] UKUT 543: 'Whether the consequences of deportation will be "unduly harsh" for an individual involves more than "uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging" consequences and imposes a considerably more elevated or higher threshold. The consequences for an individual will be "harsh" if they are "severe" or "bleak" and they will be "unduly" so if they are "inordinately" or "excessively" harsh taking into account all of the circumstances of the individual' (at [26]).
28. 'All of the circumstances' includes the criminal history of the person facing deportation (per MM (Uganda) & Anr v SSHD [2016] EWCA Civ 450) (below).
29. In considering the situation of the children I conclude that it would clearly be harsh but do not see that it would be obviously unduly harsh for the children to remain without their father. It seems that their mother was able to manage without him when he was in prison and when at a later stage he returned under a false identity to Nigeria. Until recent years his relationship with his children was fractured. It was not clear to me the extent of any practical difficulties the mother would face in caring for the children alone. It seems she has been able to earn a living as a hair braider. Although it was claimed that Mr [B] is working as a parking attendant no documentary evidence of such was produced, evidence which one would reasonably have thought was easily available. I did not believe that evidence.
30. Nor do I see any evidence that Mr [B]'s presence is needed to prevent the children from being ill-treated, or their health or development being significantly impaired, or their care being other than safe and effective.
31. As indicated, Mr Aghayara accepted that he would be in difficulty if as he put it the children were all 'normal'. His emphasis was on the middle child [C] who it was submitted was autistic.
32. In fact there is no diagnosis of autism before me. I find it surprising in that regard a GP's letter (4 July 2016) which makes no mention of such.
33. There is some indication (February 2016) that [C] was to receive an Education, Health and Care Needs Assessment. An appendix 'Observations in a school or nursery setting' (June 2016) and a Tower Hamlets CAF form do not add anything of consequence. I found Mr [B] and the witness vague in their evidence as to ongoing investigations and why there is no decision on this matter. On the evidence before me I do not find that [C] has significant developmental issues.
34. It was not suggested that Mr [B] would not be able to keep in contact by modern means with his children from Nigeria.
35. The Court of Appeal in MM (Uganda) stated (at [26]) '? 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'.
36. The amendments made in July 2014 sought to emphasise the strength of the public interest regarding the desirability of deportation of foreign criminals. As the Court put it in MM (Uganda) 'the more pressing the public interest in his removal, the harder it will be to show that the effect on his child ? will be unduly harsh' [24].
37. The First-tier Judge referred to Mr [B]'s 'blatant disregard for immigration law', that he 'has done everything he could to undermine immigration control', an 'appalling history', which culminated in his receiving a sentence of 12 months imprisonment. Whilst that length of imprisonment is at the lower end of the scale, in seeking to balance the strong public interest in the deportation of a foreign criminal against the family circumstances, for the reasons given above I conclude that it would not be unduly harsh for the children to remain in the UK without Mr [B] the foreign criminal.
38. As Sedley LJ said in Lee v SSHD [2011] EWCA Civ 348
'The tragic consequence is that this family ? will be broken up forever because of the appellant's bad behaviour. That is what deportation does. Sometimes the balance between its justification and its consequences falls the other way, but when it does so is a question for [the Tribunal]'
39. I therefore dismiss the appeal.

Notice of Decision

The decision of the First-tier Tribunal disclosed an error on a point of law and is set aside.

The appeal is remade as dismissed.

No anonymity direction is made.

Signed Date

Upper Tribunal Judge Conway