Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04045/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Oral determination given following hearing

On 22 February 2017
On 13 March 2017

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

the Secretary of State for the Home Department
Appellant
and

ms S
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant (The Secretary of State): Mr P Duffy, Senior Home Office Presenting Officer
For the Respondent (Ms S): Ms G Loughran, Counsel instructed by Wilson Solicitors LLP

DECISION AND REASONS
1. This is the Secretary of State’s appeal against a decision of First-tier Tribunal Judge Cameron promulgated on 28 June 2016 following a hearing three weeks earlier on 7 June 2016 at Taylor House. For ease of reference I shall throughout this decision refer to the Secretary of State, who was the original respondent as “the Secretary of State” and to Ms S, who was the original appellant, as “the claimant”.
2. The claimant is a citizen of Jamaica who was born on 11 August 1964. She apparently first arrived in the UK aged 8 in 1972 and has been here ever since, which is now a period of something like 45 years. At the time of the decision now under challenge she had been in this country around 43 years.
3. The claimant has had an unfortunate life. It appears she was pregnant at 15 in circumstances which have not been fully explained within the file, but was kicked out of her family home and did the best she could by seeking accommodation with a succession of unsuitable men who abused her. Between 1991 and 2005 she was convicted 38 times in respect of some 94 offences, a number of which were serious. In 1999 she received concurrent sentences of imprisonment of 30 months in respect of dealing in class A drugs and amongst other offences were burglaries, assaults and various prostitution offences, including soliciting another woman to be involved in prostitution. Certainly, in 2005 she could not have been described as anything other than a persistent offender.
4. She has several children, and in 2004 her youngest child, Z, was born and extraordinarily (considering her appalling criminal record) it seems that the claimant turned over a new leaf because from the time of her last conviction in 2005, until now, she has remained out of trouble. There is no suggestion made on behalf of the Secretary of State that she has been offending but just has not been caught, and indeed when one looks at her record that would be extremely unlikely because her criminal history establishes, if nothing else, that she is not somebody who appears capable of committing offences and not being caught for them. So the present position is that this is a lady who arrived in this country at the age of 8 and has been here now for some 45 years, of which for the last eleven or twelve years she has remained free of trouble.
5. The claimant made several attempts to regularise her position in the UK after her most recent conviction in 2005, including one in 2009 when she wrote to the Secretary of State regarding her status; nothing came of that but the Secretary of State took no action with regard to her removal. Then in 2014 she made an application to be granted indefinite leave to remain on the basis of her family and private life in this country and it was this application which triggered the decision by the Secretary of State to deport her, which decision was made on 14 January 2015; this was followed on 11 August 2015 by a decision to refuse the claimant’s human rights claim. The claimant appealed against this decision and it was this appeal which was heard before First-tier Tribunal Judge Cameron at Taylor House on 7 June 2016.
6. It is quite clear from Judge Cameron’s decision which runs to some 25 pages that he gave very full consideration to every aspect of this appeal. At the start at paragraph 3 he referred to having given consideration to the important Court of Appeal decision in MM (Uganda) [2016] EWCA Civ 450 and then again at paragraph 90 he made specific reference to that decision indicating that the court had considered the Tribunal decision of MAB to have been wrongly decided. He noted that the Secretary of State had accepted that the claimant had a genuine parental relationship with her youngest child, Z, and went on to find first that having regard to what is set out in paragraph 399(a) of the Immigration Rules it would be unduly harsh for Z either to live with her mother in the country to which she would be deported, or to remain in the UK without her, and secondly, that in any event, having regard to paragraph 399A of the Rules there would be very significant obstacles to the claimant integrating into Jamaica, which country she had left when she was 8 and to where she had not been back since.
7. The Secretary of State now appeals against this decision, permission having been granted by an Upper Tribunal Judge on 23 December 2016. When setting out his reasons for granting permission to appeal, the Upper Tribunal Judge stated as follows:
“1. The grounds of appeal assert that the First-tier Judge erred in that he had not placed sufficient weight on the applicant’s offence and the nature of her relationship with her child or properly considered the public interest in the deportation of criminals. Moreover, they assert that the judge had not given reasons why it would be unduly harsh to expect the appellant’s child to accompany her when she is deported to Jamaica, particularly as there is no evidence that the child’s father who was deported to Jamaica is no longer alive.
2. I consider that the grounds of appeal are arguable.”
8. I was assisted by the concise arguments advanced both by Mr Duffy on behalf of the Secretary of State and Ms Loughran on behalf of the claimant, for which I am grateful. I have also taken into consideration all of the documents contained within the file. Mr Duffy very fairly accepted, as in my judgement he was obliged to, that on the evidence in this case it could not be said to be reasonable to expect Z to go to Jamaica, given that she was at the time of the decision 11 years old (she is now 12 or 13) and had never been to that country. Also, she is entitled now to be registered as a British citizen, having been born in this country and lived here for the first ten years of her life. His argument essentially was that it was at least arguable that the judge had failed either to give adequate reasons for his decision or to give sufficient weight to the very great public interest in deporting foreign criminals before reaching his decision that it would be unduly harsh for Z to remain in this country without her mother.
9. On behalf of the claimant, Ms Loughran referred the Tribunal to those parts of the First-tier Tribunal’s decision to which she submitted this Tribunal should have regard.
Discussion
10. In my judgement the criticisms made on behalf of the Secretary of State, in particular in the grounds of appeal are essentially semantic. Although it is argued that the judge failed to set out in terms the balancing exercise recommended by the Court of Appeal in MM (Uganda), it is clear that the judge did have the guidance given in that case in mind. In effect what he did from paragraph 91 onwards is set out the various factors which were properly to be taken into account. The provisions within paragraph 399(a) of the Rules mirror what is set out within Section 117C of the Nationality, Immigration and Asylum Act 2002 which provides an exception for the deportation of foreign criminals in the case of a foreign criminal who has not been sentenced to a period of imprisonment of four years or more where “[the foreign criminal] has a genuine and subsisting ... parental relationship with a qualifying child and the effect of [the foreign criminal’s] deportation on the partner and child would be unduly harsh”.
11. There is no dispute in this case that Z is a “qualifying child” as defined in Section 117D; she is so qualified pursuant to Section 117D(1)(b) because she has lived in the United Kingdom for a continuous period of seven years or more. As I have already indicated, having been born in the United Kingdom and lived here for the first ten years of her life she is also now entitled to be registered as a British citizen. Although it is suggested in the grounds (and indeed is mentioned in the reasons for granting permission to appeal) that the judge could or should have attached weight to the fact that Z’s father (who had been deported to Jamaica) may still be alive, the idea that this child should now be expected to relocate to Jamaica because her foreign criminal father who has had very little, if anything, to do with her throughout her life is there, is not even remotely arguable.
12. The real issue is whether the separation of the claimant from her child would be unduly harsh for the child in the circumstances of this case. It is now well-established following the Court of Appeal decision in MM (Uganda) (which essentially decided that KMO was rightly decided and MAB was wrongly decided) that the expression “unduly harsh” involves a proportionality exercise and this is precisely what the judge carried out. The reason why a proportionality exercise is necessary is because while it will always, or usually be “harsh” to separate a child from his or her mother or father, that could only be said to be “unduly harsh” after taking account of the reasons why such removal was in the public interest. So, in circumstances where the offence was very recent and there had been persistent offending, the separation might well be justified, whereas in circumstances such as the present one, where the index offence was at the time of the decision sixteen years old (and seventeen years old at the date of the decision of the First-tier Tribunal) and the claimant’s last offence had been committed some eleven years before the date of the First-tier’s decision, the public interest was arguably not so strong as to justify the (harsh) effect on the claimant’s daughter.
13. The judge’s decision with regard to paragraph 399A, was also a very considered one. He considered that whatever might have been said to be the position in 2005, given the very lengthy period during which the claimant had now kept out of trouble, she could properly be said now to be socially and culturally integrated into society, and although she had not been lawfully resident in the UK for most of her life, there would be significant obstacles to her integration in Jamaica. These factors were relevant to his consideration of whether or not there were very compelling reasons why exceptionally this claimant should not be deported, even if the exception set out within paragraph 399(a) of the Rules and Section 117C(5) of the 2002 Act did not apply. These factors were also relevant when considering whether the effect on the claimant’s child would, in all the circumstances of this case, be “unduly harsh”.
14. In my judgement, given the length of time since the last conviction, the very long delay of the Secretary of State in taking any action at all (which the judge had specific regard to), the fact that the index offence was as long ago as 1999, and also the concession on behalf of the Secretary of State that the claimant did have a genuine parental relationship with her child, the judge’s decision that considering all these factors removal would not be proportionate (which was the judge’s task to consider) was an entirely rational one and cannot be said either to be inadequately reasoned. The situation with Z is that she had been living with her mother and her older sister (who had taken care of her mother, the claimant) until about 2014 and is now in the care of her older sister (under a care order), but she sees her mother about twice a week and her mother is still an important part of her life. Undoubtedly, the effect of separation from her mother would be harsh to some extent and when considering whether or not it would be “unduly harsh”, the function of the judge was to consider that aspect of the case in light of what public interest there was now in removing the mother. That public interest must be considerably less now than it might have been in 2005 and in the judgment of this Tribunal, not only was the judge’s decision (as I have already indicated) an entirely rational one, but it would be surprising if any judge on the facts of this case had come to any other decision.
15. It follows that the Secretary of State’s appeal against Judge Cameron’s decision must be dismissed and I so find.

Decision
16. There being no material error of law in the decision of the First-tier Tribunal, the Secretary of State’s appeal against that decision is dismissed and the decision of the First-tier Tribunal, allowing the claimant’s appeal against the Secretary of State’s decision to deport her, is affirmed.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the Secretary of State. Failure to comply with this direction could lead to contempt of court proceedings.

Signed:

Upper Tribunal Judge Craig Dated: 9 March 2017