Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/02009/2014

THE IMMIGRATION ACTS

Heard at Field House
On 27 October 2015
Decision and Reasons Promulgated
On 12 January 2016

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

derrick Opare Okai

[NO ANONYMITY ORDER]
Respondent

Representation

For the appellant: Mr T Melvin, Home Office Presenting Officer
For the respondent: Ms G Loughran, counsel instructed by
Birnberg Peirce & Partners, solicitors

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal allowing the claimant's appeal against her decision to deport him as a foreign criminal pursuant to section 32(5) of the UK Borders Act 2007, following his conviction for conspiracy and theft of a vehicle, for which he was sentenced to 12 months' imprisonment. The Secretary of State did not consider that the claimant could bring himself within Exception 1 in subsection 33(2) of the 2007 Act on human rights grounds.
Background
2. The claimant is a Ghanaian citizen who came to the United Kingdom in 1983 when he was 4 years old. In 1998 he was granted indefinite leave to remain, along with the rest of his family. Also in 1998, the claimant lived in the United States for just under a year, before returning to the United Kingdom. He has 3 sisters, one older and two younger. The rest of his family are now British citizens. The claimant's evidence is that he has no memory of Ghana.
3. The claimant has a criminal history. In October 1996, while still a minor, he first came to adverse attention when he was reprimanded by the Metropolitan Police for going equipped for theft.
4. In February 1997, the claimant had a son, probably with his first partner, although no birth certificate has been produced in respect of that child. The child lives with the claimant's first partner and is said to be a British citizen.
5. In December 1997, the claimant was again reprimanded by the Metropolitan Police, this time for common assault.
6. The claimant's adult criminal history began in November 1998, when he was convicted at Snaresbrook Crown Court of obtaining and attempting to obtain property by deception. He was given a community service order: he was 19 years old.
7. In May 2002, at Maidstone Crown Court, the claimant was again convicted of obtaining property by deception, attempting to obtain property by deception, and theft by employee. He was sentenced to 2 years' imprisonment and was released from HMP Elmley in February 2003.
8. In August 2002, the claimant and his first partner had twin children, a son and a daughter. He is not named on the birth certificates but in 2006 Dartford County Court made a contact order in his favour and the paternity of those children is not now in dispute. They are British citizens.
9. In April 2004, at Bexley Heath Magistrates Court, the claimant was convicted of destroying or damaging property of an unknown value, and failing to surrender to custody at an appointed time. He was fined and ordered to pay compensation. In May 2004 at Dartford and Gravesham Magistrates Court he was again convicted of failing to surrender to custody at the appointed time, and fined. In January 2005, at Maidstone Crown Court, he was convicted of obtaining and/or attempting to obtain property by deception and a further offence of failing to surrender to custody at the appointed time, and sentenced to 12 months' imprisonment. The Secretary of State says she sent a deportation warning letter to the claimant in prison, but he says he did not receive it.
10. In October 2006, with the partner who is now his wife, the claimant had a daughter. The claimant's wife and his former partner do not get on, but he maintains a relationship with all 7 of his children and makes sure that they have grown up knowing each other. In June 2007, he married the child's mother, and in January 2008, they had another daughter.
11. On 16 October 2008, the claimant was convicted at Thames Magistrates Court of persistently soliciting a woman for prostitution from a motor vehicle, and causing annoyance or nuisance to others. He was fined, and ordered to pay costs.
12. In 2010, the claimant and his wife separated. On 13 July 2011, the claimant was convicted of conspiracy to steal vehicles. He was exporting stolen cars through his business, but the sentencing Judge accepted that he was not the moving force in the conspiracy, which the claimant says was driven by financial difficulties he had at the time. He was sentenced to 12 months' imprisonment, triggering the foreign criminal provisions of the 2007 Act. The claimant did not allow his children to visit him in prison as he considered it would be too distressing for them.
13. In January 2012, the claimant was released from prison and began personal contact with his children again, having them all to stay with him on alternate weekends. He was released to his mother's address, but his relationship with his wife revived and they began to live together again.
14. The claimant and his wife reconciled in late 2011 or early 2012, after the claimant's release from prison, and in November 2012 they had another daughter, and in January 2014, they had a son together. Unfortunately, at some time in 2013, the relationship between the claimant and his wife failed, and he has now filed for divorce. All his children with his wife are also British citizens.
15. The Secretary of State in her deportation decision considered the best interests of all 7 children but concluded that they would remain with their mothers, who are their primary carers, and that there was insufficient evidence in relation to them to outweigh the public interest in deporting the claimant as a foreign criminal.
First-tier Tribunal decision
16. The First-tier Tribunal Judge found the claimant and his witnesses to be consistent and credible. At the hearing, the claimant told the First-tier Tribunal Judge that he was in the second year of a BA in Business Management and working part time as a driver for Sainsbury's supermarkets. He was hoping to join their graduate training programme and work towards an honest job in management so that he could provide for his children. He saw his children on alternate Saturdays and was provisionally due to return to Court in June 2015 in respect of an order about arrangements for, presumably, the children of his marriage.
17. The First-tier Tribunal decision recorded the claimant's evidence about the children as follows:
"21. The worst result of his deportation would be the effect it would have on his children and his relationship with them. He could not pretend that he would be unable to survive in Ghana if deported, but he has lived in the United Kingdom for as long as he can remember. His whole life is here including his parents, siblings, nephews, nieces, cousins, friends, and most importantly, his children. The thought of being separated from them is unbearable and would be devastating for all of them. They would lose their father at a crucial time in their lives and he fears that the half-siblings would lose touch with each other because their mothers do not get on.
22. The [claimant] said that he realised that his own actions had brought about the prospect of deportation, which had been hanging over him for nearly 4 years now, but his rehabilitation is continuing and he plays an active and important role in the lives of his children. ?
"40. ? The evidence, which I accept, clearly shows that the [claimant] has played a significant role in the lives of his children since they were born. He continues to do so and has maintained regular contact with them by agreement with their mothers. Recently, he has gone to Court with a view to formalising the arrangements. I accept that he has a close bond with all of the children and that he actively brings the two groups of children together, to meet and socialise with each other, to their common benefit, in spite of the fact that their respective mothers do not get on well. I am satisfied also that the children enjoy, and benefit from, contact with the [claimant] and that it is in their best interests, as a primary consideration, for that contact to continue, particularly as the [claimant] has been taking positive steps to rehabilitate himself and has not committed any further offence since 2011. In all these circumstances, I find that it would be unduly harsh for the children to be separated from their father by remaining in the United Kingdom while he is deported to Ghana. ?"
18. Evidence from the claimant's eldest son, now almost 20 years old, was that the claimant was not his father, but his step-father, having come into the boy's life when he was 5 years old. He would be unable to visit the claimant in Ghana because he was still doing coursework at College, had just got a job, and would lack both time and money for a visit. The claimant's natural children were all young and would not be able to go either. A friend of the claimant, and also his uncle, emphasised that he had turned over a new leaf and was a good father. There would be real difficulties for the children if he were deported. They were still very young and he was an important part of their lives.
19. The Judge found that the claimant had a subsisting parental relationship with all six of his natural children, all of whom were British citizens, and that the requirements of paragraph 399(a)(i) were met. The Secretary of State did not contend that the children should relocate to Ghana, rather, that it would not be unduly harsh for them to remain in the United Kingdom without him. The Judge made findings of fact to the contrary and allowed the appeal.
Permission to appeal
20. The Secretary of State appealed to the Upper Tribunal. She argued that insufficient weight had been given to the claimant's lengthy criminal history before the index offence, or the nature of the index offence itself; that insufficient weight had been given to his antecedents, the index offence, and his other conduct, save for his attempts to rehabilitate himself; that the possibility of the children maintaining contact with him by modern means of communication had not been considered, and given the comments about financial difficulties, no consideration had been given to the claimant's ability to support himself in the United Kingdom and not revert to crime for financial reasons. The Secretary of State relied on paragraph 117 B of the Nationality, Immigration and Asylum Act 2002 (as amended).
21. Permission to appeal was granted on the basis that the assessment of what might be 'unduly harsh' was flawed, in the light of the guidance given by the Court of Appeal in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 at paragraph 43, and Kabia (MF: paragraph 398 -'exceptional circumstances') [2013] UKUT 00569 (IAC).
22. That is the basis on which this appeal came before me.
Upper Tribunal hearing
23. I heard oral submissions from both parties, which are recorded in my record of proceedings. The claimant attended the hearing with his new partner.
24. For the claimant, Ms Loughran observed that the claimant had committed no further offences since his release in July 2011 and had shown considerable remorse for his last offence, including cooperating with the police and giving them the names of his co-conspirators. The claimant was fully integrated into the United Kingdom. The respondent had delayed between the deportation warning in November 2011 and the deportation decision in October 2014. The delay was plainly material, especially as the claimant was not detained during those 3 year: in that time the claimant and his wife had two more children.
25. For the Secretary of State, Mr Melvin argued that the delay in making a deportation decision was of very little relevance. The Judge had not explained why the effect of deportation would be "unduly harsh" for the claimant's children and had failed to direct himself by reference to part 5A of the Nationality, Immigration and Asylum Act 2002.
26. I reserved my decision, which I now give.

Discussion
27. There is a plain error of law in the Judge's decision in the failure to engage with Part 5A and the statutory presumptions therein, and in particular, the provisions of section 117C. As I understand it, it was not the claimant's case that he could bring himself within the provisions of section 117C(4) because he agreed that he could reintegrate into Ghana, if that were the only consideration. Accordingly, the Judge did not err in failing to consider paragraph 399A of the Immigration Rules in detail, because the test there is the same and the claimant himself did not rely on it.
28. The First-tier Tribunal Judge did consider whether the effect of the claimant's deportation on his children would be "unduly harsh": he did so under paragraph 399(a) of the Immigration Rules, which mirrors the terms required by Exception 2 at section 117C(5) of the Nationality, Immigration and Asylum Act 2002.
29. However, the Judge failed to direct himself by reference to two recent decisions of the Upper Tribunal on the meaning of "unduly harsh", in KMO (section 117 - unduly harsh) [2015] UKUT 543 (IAC) and MAB (para 399; "unduly harsh") [2015] UKUT 435 (IAC). In KMO, the guidance given by the Upper Tribunal was as follows:
"The Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of para 399 of the Immigration Rules, as that comprises an assessment of that person's claim under article 8 of the ECHR, it is necessary to have regard, in making that assessment, to the matters to which the Tribunal must have regard as a consequence of the provisions of s117C. In particular, those include that the more serious the offence committed, the greater is the public interest in deportation of a foreign criminal. Therefore, the word "unduly" in the phrase "unduly harsh" requires consideration of whether, in the light of the seriousness of the offences committed by the foreign criminal and the public interest considerations that come into play, the impact on the child, children or partner of the foreign criminal being deported is inordinately or excessively harsh." Emphasis added

30. In MAB, the Upper Tribunal held that:
"1. The phrase "unduly harsh" in para 399 of the Rules (and s.117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned.
2. 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.
3. 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 of all the circumstances of the individual. (MK (section 55 - Tribunal options) Sierra Leone [2015] UKUT 223 (IAC) at [46] and BM and others (returnees - criminal and non-criminal) DRC CG [2015] UKUT 293 (IAC) at [109] applied.)" Emphasis added
31. Whilst there is some perceived conflict between MAB and KBO in relation to whether a balancing exercise must be carried out (a matter which is before the Court of Appeal with a decision expected later this year), what is clear from both decisions is that "unduly harsh" is a very high standard, meaning "inordinately or excessively harsh". I am not satisfied from the First-tier Tribunal decision that such was the standard applied to the facts in this appeal, nor that the Judge took proper account of all of the claimant's offending history and the public interest in deportation, as required by sections 117A and 117C of the Nationality, Immigration and Asylum Act 2002.
32. It follows that there is a material error of law in the decision. Following discussion with the parties' representatives at the hearing, I consider that the appeal decision will need to be remade in the First-tier Tribunal, with no findings of fact or credibility preserved.

DECISION

33. For the foregoing reasons, my decision is as follows:
The making of the previous decision involved the making of an error on a point of law.
I set aside the previous decision. The decision in this appeal will be remade in the First-tier Tribunal on a date to be fixed.

Date: 11 January 2016 Signed Judith AJC Gleeson Upper Tribunal Judge Gleeson