Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/02296/2013

THE IMMIGRATION ACTS

Heard at Cardiff
Decision & Reasons Promulgated
On the 20 April 2022
On the 21 July 2022

Before

UPPER TRIBUNAL JUDGE LANE

Between

AM
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Fripp
For the Respondent: Ms Rushforth, Senior Presenting Officer

DECISION AND REASONS
1. The appellant is a male citizen of Jamaica who was born in 1967. He entered the United Kingdom in 2002 and was granted indefinite leave to remain in 2010. Since 2003, the appellant has been married to CM, a British citizen born in 1974. The couple have three children, A (aged 16), R (aged 15) and C (aged 13) (hereafter ‘the children’). For the past 18 years, the appellant has also had a parental relationship with CM’s older children, S (aged 23 years) and B (aged 21 years). All the children are British citizens. Although married, CM and the appellant do not cohabit. Both the appellant and CM live in Cardiff.
2. By a decision promulgated on 3 October 2019, the First-tier Tribunal (Judge Page) dismissed the appellant’s appeal against a decision of the Secretary of State dated 13 October 2013 to refuse his human rights claim having made a decision to deport he appellant to Jamaica. The appellant had been convicted of several weapons and drugs offences between 2006-2008. On 19 March 2012, the appellant was convicted of possession of a Class A drug (crack cocaine) with intent to supply and sentenced to 2 years’ imprisonment (the index offence).
3. On 13 May 2021, Upper Tribunal Judge Kamara set aside the decision of the First-tier Tribunal and directed that the decision be remade in the Upper Tribunal following a resumed hearing. That hearing took place before me on 20 April 2022 at Cardiff Civil Justice Centre.
4. The previous litigation history is complex. Mr Fripp, who appeared for the appellant at the resumed hearing, provides a helpful summary in his skeleton argument:
2. The appeal has a complex history and there have been repeated adjudications within it. The Appellant’s appeal was initially allowed in the FTT by a decision promulgated on 21 March 2014, and that result upheld by the UT by a decision promulgated on 19 November 2014. The Court of Appeal (under the case name and reference SSHD v AM (Jamaica) [2017] EWCA Civ 1782) allowed the Respondent’s appeal and remitted the appeal to the FTT for rehearing. The appeal in the FTT was dismissed by a determination promulgated on 25 July 2018, but that determination was set aside on appeal by the UT and the appeal remitted for rehearing. After the further reasons dated 2 September 2019 were provided by the Respondent, the appeal came before FTTJ Page who, as set out above, dismissed it. The setting aside of that determination by UTJ Kamara, preserving ‘positive factual findings set out from [72] onwards, albeit not [FTTJ Page’s] conclusions’ (UTJ Kamara, §27) establishes the basis for rehearing.
5. Mr Fripp’s skeleton argument also summarises the issues before the Upper Tribunal:
3. The primary issues in the appeal are as follows;
i. whether the effect of deportation, as regards the affected children of the Appellant’s family or any of them, would be unduly harsh engaging statutory Exception 2 of section 117C(5) Nationality Immigration and Asylum Act 2002 (NIAA 2002);
ii. whether the effect of deportation, on the Appellant’s wife CM would be unduly harsh, in turn engaging statutory Exception 2 of section 117C(5) NIAA 2002;
iii. in the alternative whether there are ‘very compelling circumstances’ within the meaning of section 117C(3) as per NA (Pakistan) v SSHD [2016] EWCA Civ 662; [2017] 1 WLR 207, §§25-27, militating against deportation.
In the case of each issue the Respondent’s case is that the answer is ‘No’. The Appellant’s case is that the answer, so far as any given issue is reached, is ‘Yes’, once the facts are fully examined and the relevant law is applied.
6. The appeal is brought on human rights grounds (Article 8 ECHR). The standard of proof is the balance of probabilities. I have carefully considered all the evidence (including that of the expert, Dr Adam Abdelnoor) before reaching any findings of fact or settled view of the credibility of or weight to be attached to any part of the evidence. The fact that I have no referred to each and every item of evidence does not mean that he failed to factor consideration of it into my analysis.
7. I heard oral evidence from both the appellant and CM. both adopted their witness statements as their evidence in chief. They were cross examined by Ms Rushforth, who appeared for the Secretary of State.
Preserved findings
8. In her decision setting aside the First-tier Tribunal’s decision, Upper Tribunal Judge Kamara directed that the ‘positive’ findings of fact of the First-tier Tribunal from [72] onwards should be preserved. Mr Fripp in his skeleton argument at [8] noted:
UTJ Kamara held that ‘positive factual findings set out from [72] onwards, albeit not [FTTJ Page’s] conclusions’ should be preserved (UTJ Kamara, §27). That does not include findings at §§34-35 (noted above) but the finding at §35 appears part of the basis for those at §72 onwards and effectively incorporated thereby.
Ms Rushforth did not object to that submission. Mr Fripp summarises the preserved findings as follows:
i. As to the Appellant’s assessed reoffending risk the FTTJ noted that the last risk assessment had been six years before and that there had been no reoffending at all in the intervening years, so the risk had likely reduced and no weight could be given to the ‘medium’ risk assessed previously (§34);
ii. Due to problems with their accommodation the Appellant since release from prison had not cohabited with his family members but he was very frequently in that household where he played an active part (§35);
iii. The Appellant had a family life with his wife and the children (§72, 76);
iv. ‘The [Appellant] is a stabilising influence on his children and… a supportive husband to his wife’ (§73);
v. ‘This family has had a lot of problems that have led to Social Services’ intervention and they are poorly housed, all of this I accept’ (§73);
vi. ‘I also accept that there has been an improvement in the behaviour of the children when the [Appellant] has been involved in their lives…’ (§73);
vii. ‘The [Appellant] is probably far more capable of controlling the children than Mrs McKenzie who is plainly an anxious and stressed woman facing difficulties, financially and emotionally and health wise [though ‘I do not find that she could not cope in caring for the children in the absence of the [Appellant], something she did when [he] was in prison, albeit with support from Social Services’ (§74);
viii. The children ‘appear to be coping with the fact that he is living apart from them. They coped with [his] imprisonment… This family has had the assistance of social services in the past and there is no reason to suppose that social services would not assist again if needed. There is no compelling evidence to suggest that the [Appellant’s] deportation would be catastrophic in its effect on the children if the support and care they get [from] him when he visits ended’ (§76);
ix. ‘[T]he impact of deportation on the [Appellant’s wife would be depressing and upsetting for her. She has been prescribed medication as a result of her anxieties which also relate to her husband’s potential deportation. She suffers from physical health difficulties and mobility problems and must have the support of the [Appellant] when he visits her home to assist with the children.’ (§78);
x. ‘The effect of deportation on the [Appellant’s] stepchildren, to whom he has acted as a father for sixteen years and who remained part of the family unit, would again be upsetting for him if he was deported. I accept… that the [Appellant’s] stepson would be particularly affected…’ (§79).
The appellant’s evidence
9. At [9] of his 2022 witness statement, the appellant details an incident in 2019 when, having received a call from CM asking to be provided with a lift home by car from a friend’s house, the appellant drove a motor vehicle without tax and insurance for which offence he was subsequently convicted and fined. Ms Rushforth sought permission (not challenged) to adduce in evidence an updated Police National Computer (PNC) record which shows that, in addition to the tax and insurance offences, the appellant had, on the same occasion, also been convicted of driving under the influence of drugs. The appellant said that he ‘had not remembered the drugs bit’ at the time he had made his statement. He confirmed that the drug had been cannabis which he continues to use on a regular basis because he sleeps badly. He denied that he continues to use cocaine. He said that the he had been working on the vehicle on that the day of the offence was the only time he had driven it.
10. The appellant told me that he did not believe that CM would be able to cope with the children if he was not available to assist her. CM suffers from a number of medical conditions (for which there was no medical evidence) and lacks cognitive ability. She lacks confidence in social situations, especially dealing with persons in authority. He said that CM was ‘too soft with the kids’ and too inclined to ‘go with the flow’ allowing the children to ‘get whatever they want.’
11. In his witness statement, the appellant claims that he does not live with CM and the children because the family house is not large enough to accommodate them all. However, in cross examination he acknowledged that CM’s entitlement to Housing Benefit was ‘also a problem although I don’t know much about it.’ He said that he visits the family home 3-4 times every week and agreed that, on the 3-4 days each week when he is not there, CM looks after the children on her own. The appellant said that he usually takes the children to medical appointments although CM had recently taken C to the doctor.
12. The appellant said that he had worked as a taxi driver in Jamaica but ‘things there are different now’ so he could not return to that or similar work.
CM’ evidence
13. Although CM adopted her written witness statement as her evidence in chief, she immediately stated in cross examination that, notwithstanding a contrary assertion in her statement, she did not refrain from living with the appellant because her house was not big enough. She said that she and the appellant lived apart ‘because of the way we are, my depression etc. I kept throwing [the appellant] out so having his own home is his safety net.’ She said that her claim in her witness statement that she was looking for a bigger house so that the whole family could live together was ‘ludicrous.’
14. CM said that she preferred not to have to take the children to medical appointments but, ‘if there is no other choice’ she would do so. She said that she had been to the children’s school ‘recently’ and that ‘I agree it [attending the school] does mean I can do it.’ CM said that she would call the appellant is the children ‘got out of hand’ and he would ‘usually’ be able to clam them down by speaking to them. If not, there ‘would be a full scale riot.’
The Child Protection Register (CPR)
15. I raised the matter of the chronology of events concerning the placement by social services of the children on the at CPR in 2012. After discussion with the advocates and an examination of the documentary evidence, the parties agreed that the children had been placed on the register on 12 March 2012, that is one week before the appellant was imprisoned for the index offence. The children were removed from the CPR in November 2012 (8 months into the appellant’s 2 year sentence).
Findings
16. I do not accept the appellant’s claim to have forgotten the drugs element of his most recent criminal conviction or that the only occasion on which he drove a motor vehicle was to collect CM from a friend’s home. I find that he deliberately tried to minimise his recent criminal offending in order to assist his case in this appeal. There was no evidence that he is suffering from any cognitive or other condition which might explain such a lapse in memory. I find it very much more likely than not that the appellant deliberately omitted reference to the drugs offence in the hope that the Tribunal would not have access to an updated PNC record which might disprove his account. I find that the appellant is an unreliable witness who will alter his evidence if he considers that doing so will be to his advantage. I also find that the appellant chose not to disclose to the Tribunal that he works (albeit occasionally) illegally at events at a local stadium (evidence provided by CM). The appellant claims that he does not to work at all. Notwithstanding the appellant’s poor credibility, I am prepared to accept that, whilst he continues to use cannabis, he no longer uses crack cocaine.
17. I find the appellant’s reasons for saying that he could not find taxi or other work in Jamaica wholly unpersuasive. His evidence was vague and he failed to give any particulars when offered to the chance to do so. I find that the appellant could and would find work in Jamaica if deported there.
18. I find that the appellant and CM live apart because they choose to do so and also (albeit to a lesser degree) because of CM’s wish to maximise her Housing Benefit payments. I found CM’s oral evidence on this matter, which directly contradicted what she had said in her written statement, strikingly candid. I do not find that that there is any prospect that the family intend to live together in the immediate or long term. I find that the personal and financial reasons for the separation described by CM in oral evidence plainly outweigh any notion (promoted in the inaccurate witness statements) that the physical presence of the appellant in the family home is required for the welfare of the children or CM. I find that, if the appellant’s physical presence were as significant for controlling the children’s behaviour as the appellant claims, then CM would have made arrangements for the appellant to live with her and the children. That she has not done so is a clear indication that the behaviour is not as bad and CM’s ability and willingness to control it not as inadequate as the appellant claims. Moreover, I find that CM usually summons the appellant’s help with the children by telephone. I accept that, whilst the appellant visits the family home every week, he can assist with controlling the children’s behaviour without having to have contact with them face to face.
19. I also find that the correlation advanced by the appellant between his presence in the lives of the children and their requirement for social services intervention is not established on the evidence. As the agreed chronology shows, the children were placed on the CPR before the appellant went to prison and were removed from it before he was released. As the Court of Appeal observed in 2012 at [7]:
CM received support from social services while the respondent was in prison and seems to have coped with the children in that period, albeit in a family which was not functioning as well as it does when the respondent is at home and part of the household. According to CM's own (unsigned) witness statement before the FTT, at para. 5, in this period she found that "caring for the children on my own can be quite challenging." She did not say that she found it impossible and clearly social services considered that she could manage with their help, as the children were not removed from her and taken into care. In November 2012, well before the respondent rejoined the family, the children were removed from the 'at risk' register.
Nearly 10 years have elapsed since the Court of Appeal made that observation. Needless to say, the children are older and more mature than they were at that time. The children have not required the significant intervention of social services since 2012 notwithstanding that CM has been, for most of that time, their sole live-in carer. Having considered all the evidence, I find that CM can deal alone with the behaviour of the children when she chooses or is required to do so without any interventions from the appellant. I find she can care for the children such that there welfare (including the need to attend medical appointments) is not compromised. CM may prefer not to engage with authorities such as schools and hospitals but, as she very candidly stated in oral evidence, she will do so when necessary. As for the children themselves, I find that they are of an age when they a well aware that their mother ‘goes with the flow’ (as the appellant says) and that they use this aspect of her personality to their own advantage; there is, frankly, nothing unusual about teenagers exploiting the perceived weaknesses of their parents. There is also nothing in the evidence considered as a whole which suggests that the children require the regular care input of the appellant in order to avoid suffering distress or, indeed, the future intervention of social services. Whilst I accept that the children have a good relationship with their father and would prefer not to be separated from him by reason of his deportation to Jamaica, now (nearly 10 years after the appellant began his appeal) each is within a relatively short distance of adulthood. These findings and observations on the evidence lead me to conclude that the effect of the appellant’s deportation would not be unduly harsh either for the children or for CM.
Dr Abdelnoor
20. Dr Abdelnoor is a chartered psychologist. On 11 March 2022, he completed a family assessment, and on 31 March 2022 he provided a detailed report. My Fripp’s skeleton argument makes it clear that the appellant now relies heavily on this evidence in the appeal. I have considered Dr Abdelnoor’s report together with all the evidence before reaching any conclusions (see Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367)).I accept that Dr Abdelnoor possesses the qualifications and experience to provide opinion evidence in this appeal.
21. The expert made a number of detailed observations, including that ‘ [CM’s] current circumstances are stable, and her condition is accommodated, only because [the Appellant] is there to support her.’
22. I do not agree with Dr Abdelnoor. Unlike the expert, I have had the opportunity of hearing CM and the appellant give oral testimony and of considering all the evidence. I accept that CM’s ‘mental health functioning may be impaired’ but return again to the candour of her oral evidence (which, even though it may be a function of that impairment, I found truthful and compelling). In short, it was obvious that CM did not agree with the interpretation of her parenting skills and ability to function in society which had been advanced as part of the appellant’s case in the appeal. Moreover, I do not find that any mental impairment has exaggerated or distorted CM’s own assessment of her ability to care for the children; as events have shown, CM has motivated herself when required to do so and not only (as in the case of recently taking a child to a medical appointment) at times when the appellant has been in prison. There was no suggestion that CM has only been able to take a child to the doctor or attend a school meeting ‘only because’ of the support provided by the appellant. Had CM or the appellant considered that to be the case, they would have said so in evidence. I agree with the conclusion in the Respondent’s supplementary decision letter (at paragraph 91) that there was ‘no indication that [Mrs McKenzie] is not currently able to provide for [the children].’
23. In my opinion, Dr Abdelnoor’s report is hindered and the weight attaching to it diminished because he was unaware of the complete family circumstances. He refers to the appellant as ‘prime carer’ of the children and yet appears unaware that the separation of the family from the appellant in different homes is not temporary and that it is as result of the wishes of CM and appellant, that the appellant only intervenes with the children when called upon by CM to do so and that there was no direct correlation between the appellant’s absence in prison and the need to involve social services. Dr Abdelnoor has, in short, prepared his report whilst having an incomplete knowledge of the relevant facts.
24. The expert report does not address in any detail role in the minor children’s lives played by their older half-siblings. CM said in re-examination that her adult children are ‘sort of used to managing the younger ones.’ B, in particular, who is living in the family home at present, ‘will correct’ the children if ‘they speak out of turn’. CM said that B’s interventions ‘usually work’ and, only if they do not, does it become necessary to call the appellant.
25. I fully accept that the children older half-siblings cannot be expected to provide care where the parent cannot or will not provide it. I acknowledge also that B may not be present in the family home long term. However, it is important to consider the ‘real world’ circumstances of this family. If CM does, as a matter of fact, receive assistance from B then that is matter which it is legitimate for the Tribunal to consider.
Conclusions
26. Whilst I accept that the appellant provides a helpful counterbalance to the parenting skills of CM, that she and the children would obviously prefer not to separated by deportation from the appellant with whom they have a good and stable relationship and that the children and CM would be distressed by being separated from the appellant, I cannot conclude on the evidence that the CM’s ability as a parent is so poor that the consequences for the children of the appellant’s deportation would be unduly harsh. I have been careful in my analysis to focus upon the family dynamics as they actually exist and have avoided assessing unduly harshness by reference to any notional standard (see HA (Iraq) [2020] EWCA Civ 1176). I find that there may be occasions when CM may have to call upon the assistance of social services but I simply do not accept an argument, insofar as it may be advanced, that such assistance will inevitably lead to the children being taken into the care of the local authority. There a various forms of assistance which social services may provide which would leave the children in their home and under the care of CM.
27. In her evidence, CM also told me about the inadequacy of her current housing. It is to be hoped that she will find a better home for the children soon. However, the fact remains that, despite those problems, the children have not been removed from the care of CM whilst the presence of the appellant is clearly not a factor in finding a solution to the housing problem given that he does not live with the rest of the family.
28. In the light of what I have said above, I find that the effect of the deportation of the appellant to Jamaica would not be unduly harsh on A, R, C or CM.
Very compelling circumstances
29. In his skeleton argument, Mr Fripp addresses the matter of very compelling circumstances as follows:
19. Should this issue [very compelling circumstances] be reached the Appellant’s fuller submissions will as necessary be delivered orally. However in brief summary of anticipated submissions on this point the following points are noted:
i. The phrase ‘very compelling circumstances’ does not require that one of the statutory exceptions be made out as a precondition, and material going to but not fully satisfying such an exception is relevant for purposes of demonstrating relevant circumstances: NA (Pakistan) v SSHD [2016] EWCA Civ 662; [2017] 1 WLR 207, §§17, 35;
ii. The phrase does not imply that the Appellant falls to be treated as though deemed an offender sentenced to 4 years or more, so that section 117C(6) NIAA 2002 applies. His sentence remains 2 years, and ‘very compelling circumstances’ falls to be considered in that light;
iii. FTTJ Page concluded in 2019 that the (then) period without offending indicated that the Appellant’s risk of reoffending could not any longer be taken as medium (FTTJ Page, determination, §34). The Appellant has acknowledged and regrets his more recent driving offences. But setting these aside it is clear that he has no continued involvement with drugs, he had instead taken an important part in the care of his family, and given that the offences or which he was convicted were committed before mid-2011, the traffic offending is the only lapse by him in more than a decade. This significantly moves the case on from where it stood at the time of the October 2013 decision under appeal, and even from the position at the time of the supplementary decision of 2 September 2019.
iv. The evidence suggests that the Appellant has ability- some qualification and experience as a mechanic- and determination- because of his commitment to the family- to continued rehabilitation and work if eventually permitted. This represents a highly positive aspect of the overall situation.
30. Mr Fripp’s submissions regarding the appellant’s offending (iii) must be read in the light of the revelation of the appellant’s drugs offence in 2019 and to which he does not refer. In oral submissions, Mr Fripp referred to the length of time it has taken (9 years) to bring the deportation process and appeal to a conclusion. It is unfortunate that it is taken so long but throughout the appellant, CM and the children have been fully aware that the possible outcomes of the process. At least all involved now have finality. I do not find that the delay or any of the matters cited by Mr Fripp amount to very compelling circumstances.
31. The appellant’s appeal against the Secretary of State human rights decision dated 13 October 2013 is dismissed.
Notice of Decision
The appellant’s appeal against the Secretary of State human rights decision dated 13 October 2013 is dismissed.

Signed
Upper Tribunal Judge Lane

Date 20 June 2022

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant/respondent is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant/respondent, likely to lead members of the public to identify the appellant/respondent. Failure to comply with this order could amount to a contempt of court