Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00062/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision Promulgated
On: 2nd August 2016
On: 3rd August, 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

GJ
(anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms K.Jones, Counsel instructed by Arlington Crown Sols
For the Respondent: Mr E. Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Angola born in 1967.

Anonymity Order

2. The Appellant is subject to a deportation order and as such would not ordinarily merit protection of his identity. This case does however turn, in large measure, on the involvement of his minor children, resident in the United Kingdom. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

"Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

Background

3. The Appellant came to the United Kingdom in 2000. He claimed asylum. This was refused and by 2003 he had exhausted all his appeal rights. In 2010 he was convicted of four counts of possessing false documents, one count of acquiring criminal property and one count of making a false statement contrary to the Social Security Administration Act 1992. He received a concurrent sentence of 2 years in prison.

4. On the 16th August 2011 the Respondent granted him Discretionary Leave (DL) until the 8th August 2014. The reason for this grant is said to have been his "Article 8 rights". Before me Mr Tufan agreed that it would likely have been based on a combination of factors including the fact that the Appellant had at that time three young children in the UK and the fact that he is HIV+.

5. On the 29th May 2012 the Appellant was convicted, at Birmingham Magistrates, of driving without a licence, without insurance and with excess alcohol. He received a suspended sentence of 16 weeks in prison, and an unpaid work order. A further offence occurred on the 2nd December 2014 when the Appellant was again convicted of driving whilst disqualified.

6. On the 29th July 2014 the Appellant applied to vary his DL so as to extend it. The Respondent refused this application, instead notifying the Appellant of his automatic liability to deportation because of the convictions in 2010. The decision to deport was taken on the 10th April 2015.

7. The appeal before the First-tier Tribunal concerned the Appellant's human rights. He submitted that his removal from the United Kingdom would have an unduly harsh impact on his three sons, whether they were brought with him to Angola or left behind with their mother: paragraph 399 of the Immigration Rules applied. The Respondent contested only the second limb of that test.

8. The Tribunal dismissed the appeal on Article 8 grounds. Applying the approach in MAB v Secretary of State for the Home Department (paragraph 399 'unduly harsh') USA [2015] UKUT 00435 (IAC) the Tribunal found:

All things being equal, it would be in the children's best interests to live with both parents

The children could live in the UK without the Appellant, since they had lived with their mother alone during his period of incarceration

There was no evidence to support the mother's claim that her health had deteriorated at that time, or that it had deteriorated to the extent that social services had to be involved

The Appellant has in the past acted to the detriment of his children (in respect of his offending behaviour)

The children would miss their father and the change to the domestic arrangements would be disruptive, but they would adapt, just as they did whilst he was in prison

Assessing these factors cumulatively the Tribunal did not find the Appellant's removal would have an unduly harsh impact on the children.

The Appeal

9. Ms Jones, who put her case in an admirably clear and comprehensive way, submitted before me that the decision of the First-tier Tribunal is flawed for three distinct errors of law. Although Mr Tufan made some very good points in response I am quite satisfied that this decision must be set aside to be remade. The submissions and my findings are most conveniently set out thematically.

Ground 1: Failure to take the children's views into account

10. The Tribunal had before it a detailed report by an independent social worker, a Ms Claudette Wynter. Ms Wynter had seen this family on four separate occasions in visits lasting between one and four hours. She had observed the children at home, visited their school to speak with their teacher and see them there, and had interviewed both parents. Ms Jones took me to numerous passages in the report where Ms Wynter sets out what the boys themselves told her about their fears and feelings in respect of their father's deportation. I need not set all of these passages out, but in brief summary the boys reported that they would be "angry", "terrified" and "inconsolable" should their father be deported. The boys told her that they regard him as their primary care giver because their mum is often working.

11. The First-tier Tribunal nowhere takes those views into account. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 Baroness Hale held that "an important part" of the best interests assessment would be discovering the child's own views. In the context of paragraph 399 it is perhaps axiomatic that this guidance should be applied. These boys were old enough to speak for themselves, and who better to assess the impact on them of their father's potential deportation? Mr Tufan submits that all children will say that they will miss their father. This perhaps illustrates the point. The evidence that the children gave to Ms Wynter went much further than saying that they would miss him. Such evidence is not always available; in this case it was and it should have been considered.

Ground 2: the Impact of Child A's autism

12. The Appellant has twin boys, born in 2003. One of the twins, whom I shall refer to as A, has autism. This was referred to quite extensively in Ms Wynter's report. It is a fact recognised in the determination in the Judge's summary of the evidence. It is not however considered in anything like an appropriate level of detail when considering whether removal would have an unduly harsh impact. The report noted inter alia that A becomes agitated and upset and that his father is able to effectively calm him down and reassure him in a way that his mother is not. Ms Wynter further recorded the evidence of both parents that A had been very challenging in his behaviour towards his mother and that this has caused his mother a lot of stress and anxiety. She relies heavily on the Appellant to manage A's behaviour and enable her to care for the other two children. Ms Wynter, and indeed a Dr Sukhpreet Baidwan (Specialist Trainee in Community Paediatrics, whose report appears in the Appellant's bundle) emphasise how any changes to routine for A would cause stress and anxiety.

13. This evidence is dealt with in the 'unduly harsh' assessment at paragraph 49:

"Undoubtedly the children would miss their father and the change to domestic arrangements would be disruptive, even more so for [A]. The children would adapt, as they appear to have done during the Appellant's absence in prison"

14. I am not satisfied that this was an adequate means of addressing the issue of A's autism. It may be, as Mr Tufan submits, that the Tribunal considered the evidence to be lacking (paragraph 29 suggests this to be so) but the Respondent had not challenged the diagnosis and it was plainly evidence that merited some careful analysis in the context of the test in paragraph 399.

Ground 3: the Passage of Time

15. As is evident from the foregoing extract from the determination that central to the Tribunal's ratio was the fact that the boys' mother had coped whilst her husband was in prison, and they too had coped without him. Ms Jones submits, and I accept, that this reasoning is flawed for a failure to take into account the material fact that four years have elapsed since that time. The family situation is much changed. The Appellant is described by his sons as being their main carer, because their mother is working long hours. He takes them to and from school and is there in the evening when they get home. He helps A with washing and dressing. The boys have got used to having him around. It further overlooks that for the duration of his imprisonment they saw him every week, and they always understood that he would be coming home. That is a quite different proposition from having him removed with little or no prospect of seeing him for ten years.

Conclusion

16. For these reasons I am satisfied that the Tribunal erred in its approach. In short, the analysis at paragraphs 46-50 failed to address material evidence and for this reason it must be set aside.

17. Upon taking instructions Ms Jones requested that the matter be remitted to the First-tier Tribunal at Birmingham. In light of the extensive fact finding required, I agree.

Decisions

18. The determination of the First-tier Tribunal contains an error of law such that must be set aside in its entirety. The decision in the appeal will be remade in the First-tier Tribunal.

19. There is an order for anonymity.

Upper Tribunal Judge Bruce
2nd August 2016