Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05378/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18th November 2019
On 2nd December 2019

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

r m m
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M Shaw, instructed by North Kensington Law Centre
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Zambia born on 11 May 1972. He appeals against the decision of First-tier Tribunal Judge A M Black promulgated on 31 July 2019 dismissing his appeal against deportation on human rights grounds.
Immigration history
2. The Appellant, his wife and son arrived in the UK on 23 January 2001 on a six-month visit visa. They remained in the UK after the expiry of their visas. On September 2003 the Appellant's daughter, L, was born. On 28 February 2008, the Appellant applied for discretionary leave to remain on the basis of the Respondent's policy, the seven-year child concession. This application was refused on 11 March 2008 due to non-payment of fee.
3. On 18 March 2008, the Appellant was convicted at Guildford Crown Court of the possession of a false instrument (a false work permit). He was sentenced to imprisonment for fifteen months. On 7 April 2008 the Appellant was included in a family application for indefinite leave to remain based on the seven-year concession. In view of the Appellant's conviction, this was refused.
4. On 11 April 2008 the Appellant was served with notice of liability to deportation. On 21 October 2008, the Appellant, his wife and children were served with a decision to make a deportation order. The Appellant made further representations. He was notified on 16 August 2010 of the decision to make a deportation order. The Appellant and his family appealed against this decision and the appeal was dismissed on 24 January 2011. On 3 October 2011 a deportation order was signed in respect of the Appellant, his wife and two children.
5. On 18 January 2013, further representations were received. The Respondent then revoked the deportation order against the Appellant's wife and son and declared the deportation order against the Appellant's daughter to be invalid, as she had been naturalised as a British citizen on 9 December 2003. The Appellant's further representations were refused as a fresh claim, which was subsequently reconsidered and refused on 9 March 2017 and 20 December 2017, the decisions under appeal.
Judge's findings
6. The judge made the following relevant findings:
"63. I give considerable weight to the evidence of the Appellant's daughter. She gave oral evidence. She has three close friends who supported her in settling into her new school. She has moved home about four times since birth because her parents could not afford the rent and were forced to do so. She found these moves extremely unsettling. The latest move to Wolverhampton from London was very emotional and life changing because she had to leave her childhood friends. She visits them in London. She has settled well in Wolverhampton and has friends there. She does not wish to live in Zambia. Her life is in the UK. She enjoys living here and her education is very important to her. She is top of the class in English and maths. She plans to study midwifery. She has no interest in Zambia. She previously had contact with her maternal grandparents there but no longer has such contact. She has never met them. She would not want to live without her father who does a lot for her. He collects her when she goes to friends' parties in the evenings. She feels safe with him. When she feels sad and upset her father cheers her up. He spends time with her. He has taught her many life skills. He attends parents' evenings at school, helps with her homework and communicates with teachers when necessary. When her mother was in hospital with a heart condition he looked after her ensuring her needs were met including that she was ready for school with the support of her brother. The Appellant's daughter told me she would be lost without her father in the UK. She was trying not to think about it. If he was deported she was not sure if she would visit him in Zambia because it was not a holiday type of country."
"65. I accept it will be very difficult indeed for this child to remain in the UK if her father were deported. However, she is settled in school, has friends there and is doing well. She is on course to achieve her ambition of studying midwifery. While her studies would undoubtedly be affected by the absence of the Appellant, she is aged 15 and clearly focused on her ambitions for her future career. She would have the support of her mother and brother. I find therefore that with the support of her teachers, her extended family in London and her friends locally, she will remain on course to achieve that ambition notwithstanding the absence of her father. While I accept that family life cannot be continued through social media or the Internet, the Appellant would remain in contact with his daughter via such means and will be able to maintain contact with her teachers by email as he does now. He could continue to provide some guidance and support for his daughter by those means. I do not accept she would not visit her father in Zambia. Whilst she is doubtful about this, I find she would do so if he were deported. Given my findings below as regards the ability of the Appellant's wife to work in the UK, I find that flights to Zambia for the Appellant's child and wife would be affordable. In so finding, I fully accept that family life cannot be maintained through such visits and telephone and Internet contacts alone. Nonetheless it is a means for the Appellant and his daughter and wife to remain in contact."
"67. I have heard little evidence relating to the Appellant's son save that he has recently been referred by his GP for psychiatric assessment. He is described by his mother as being in low mood. There is no formal diagnosis. There is no evidence that he is currently working or in school or education and I find that this is due to a lack of immigration status. He has spent some time in a youth offender institution but I have received little information about the reason for this. For the reasons I set out below the Appellant's son would have the option of remaining lawfully in the UK if he wished to do so. Thus, he would be able to continue to provide practical support to his mother and sister, as he does not according to his father.
68. Thus the impact of the Appellant's deportation on his daughter would in simple terms be a reduction of personal contact between the Appellant and his family; it would be limited to the visits during school holidays and on other occasions, as and when the Appellant and his wife could afford it. In that regard, I do not accept the Appellant's evidence that he would not be able to find work in Zambia. He has worked there in the past before coming to the UK. He has worked in the UK for five or six years as a carer. He was promoted in that role. He told me most jobs in Zambia were for professionals such as doctors. I do not accept that. There is likely to be a requirement for carers who are less qualified such as in the case for the Appellant. He has extensive experience of working in the caring profession albeit not recently. He studied in the UK for three years before his arrival here in 2001. He has transferable skills and qualifications, which he could utilise to find work in Zambia. This would enable him to support his wife, son and daughter in Zambia on their visits to see him. His evidence is that his life in Zambia was comfortable before he came to the UK; it would be so again on his return (albeit without his family)."
"71. I bear in mind the opinion of Ms Christine Brown the independent social worker. I give it significant weight but cannot ignore that it was written in 2013. The Appellant's daughter is healthy and settled in the UK. She excels at school. She is capable of continuing to focus on her studies with remote support from her father in Zambia. I do not doubt or minimise the extent of the disruption to this child's emotional wellbeing but I am unable to find would be significant, in the long term, given her reaction to past life changing events, such as leaving her previous school and moving to the West Midlands. Ms Brown has not taken these positive factors into account in her assessment. The Appellant's daughter has shown a level of maturity which is impressive. I do not doubt she will bring this to bear in the absence of her father. In summary, I give some weight to the opinion of Ms Brown but I do so in the context of the evidence of more recent events which have impacted on the wellbeing of the Appellant's daughter.
72. The Appellant's children were living in a stable home environment when the Appellant was in prison and there is no evidence of his daughter's development being significantly undermined or damaged in the long term by his absence during that period. That said I recognise she was very young at the time. If the Appellant were to be deported the Appellant's daughter would continue to live in a stable home environment albeit with only her mother and brother with a greater input from family members and friends. She would no longer have physical contact with her father on a regular basis but while this would cause her distress and upset in the short term, this is capable of being resolved with support, assistance and counselling. She would no doubt receive support from friends and teachers at school and this would minimise the disruption to her schoolwork. The contemporaneous evidence is not such as to suggest that she would suffer significant detriment in the long term.
73. By its nature deportation separates parents and their children. The Appellant's daughter's daily life outside the home will not be altered significantly by the deportation of the Appellant. He can remain in email contact with her school as now. I do not accept that the Appellant's wife and child would not visit Zambia to see the Appellant. His wife's employment would enable her to funds for such trips as would the Appellant's own employment in Zambia. He would have accommodation there once he has found a job to support himself. Thus the Appellant will be able to support his partner and children during their visits to Zambia."
"75. The Appellant's daughter has adapted without longstanding detriment to previous significant changes in her life, her home and her schools. She has resettled in due course with the assistance and support of friends and family. That support will continue to be available to her. She would remain in the UK with her mother and brother, she has a stable home life in this country and that will continue albeit in the absence of her father."
Grounds of appeal
7. Permission to appeal was granted by First-tier Tribunal Judge Andrew on 12 September 2019 on the basis that the judge made the following arguable errors of law:
(1) The judge's findings were based on assumptions rather than facts.
(2) The judge made contradictory findings in relation to the appellant's criminality.
(3) The judge came to incorrect findings as to the lack of significant harm to the appellant's daughter.
(4) The judge made assumptions relating to the appellant's son's mental health.
(5) The judge made a mistake of fact in relation to the deportation orders in respect of the appellant's family.
(6) The judge made a mistake of fact in finding that the appellant had spent the majority of his life in Zambia when he had been in the United Kingdom for half his life.
Submissions
8. Ms Shaw relied on the six grounds of appeal and submitted that it would be unduly harsh for the Appellant's daughter, a British citizen, to remain in the UK when the Appellant was deported. The judge found that matters had not deteriorated since the social worker's report five years ago. The judge was not able to do so. At the time the social worker's report was compiled, the Appellant's daughter, L, was not aware of the Appellant's imprisonment or deportation. The evidence before the judge showed that the Appellant played a significant part in L's life. They had moved house four times and she had become very unsettled. The judge acknowledged that the Appellant provided stability for the whole family and was a positive influence on L's education. L needed the Appellant in her life during her GCSE year and his deportation would have an unduly harsh effect on her.
9. On the evidence before the judge the Appellant's son had mental health issues. Ms Shaw submitted that they now had a diagnosis and should an error of law be found there was further evidence to be submitted. She submitted that the judge had not properly considered the effect of the Appellant's deportation on his children and had made a number of assumptions in her decision. L was at a critical time of her education and had struggled with moving house. She was settled with the Appellant in her life and was now thriving. It was important that the Appellant remained with his family unit at the most critical time in L's life. The judge failed to take into account the support provided by the Appellant at paragraph 71.
10. Mr Kotas submitted that the issue in this appeal was whether the Appellant's deportation would have unduly harsh consequences for his British citizen daughter or whether they were compelling reasons which outweighed his deportation. The judge had not made contradictory findings. It was clear that she had assessed the case on the basis that there was no risk of reoffending. Further, the judge had not made assumptions or speculative findings. The judge was not required to look into the future and had to decide the appeal on the evidence before her. It was not submitted that the judge had left out any material considerations.
11. At paragraph 50, the judge acknowledged that the transition to living in Wolverhampton had been difficult, however, L was now excelling at school. When the social worker's report was compiled, L was told that her father was working away and she was unaware he was in prison. The judge had taken into account the stability provided by the Appellant to the family unit and it was not submitted that the judge had misdirected herself in law. There was nothing going beyond what would necessarily be expected when a family is split by deportation. The judge considered the best interests of the children as a primary consideration and attached considerable weight to L's evidence at paragraph 63 and the support provided by the Appellant.
12. The judge accepted that it would be very difficult for L to remain in the UK without the Appellant and that her studies would be affected. However, the judge's finding that L could remain on course was not speculative. It was a conclusion based on the evidence before her. Although there would be a reduction of personal contact, which would be limited to school holidays, the Appellant could still play an active part in L's life.
13. At paragraph 71, the judge took into account the opinion of the social worker. She took into account all relevant evidence and provided reasons why it would not be unduly harsh. She acknowledged L's level of maturity and the fact that the Appellant's absence, while he was in prison, was not detrimental to L's education however, she was young at the time. The judge's finding that L would not suffer significant detriment was open to her on the evidence before her.
14. It was clear from paragraph 102, that the Appellant had to show that he met the elevated threshold and the evidence before the judge failed to meet that test. The judge accepted the detrimental impact of the Appellant's deportation on L and took into account factors which militated the other way. The high threshold was not met. There was nothing in this case which rendered the separation unduly harsh. The judge had done a thorough job. There were no material facts which had been overlooked and the judge had reached findings which were rationally open to her.
15. At paragraph 104, the position of the Appellant's son was considered and there were no compelling circumstances. The judge rejected the Appellant's evidence that he would be unable to obtain employment in Zambia because he had transferable skills and the judge was well aware that the Appellant had been in the UK since 2001.
16. In response, Ms Shaw stated that there were four factors which the judge had failed to take into account. Firstly, the impact on L and her history of not coping with change as evidenced in the social worker's report. Deportation was a major change and L was currently more vulnerable because she was going through puberty and was at a crucial stage of her education. Secondly, the Appellant's wife's medication had increased and she had undergone heart surgery. Thirdly, the offence was not the most serious offence. Fourthly, the circumstances when taken together, including the passage of time, the Appellant's remorse and lack of reoffending, and his son's referral to a psychiatrist, all amounted to compelling circumstances over and above those described in the Immigration Rules. The Appellant was the primary carer of his children and L was thriving with the Appellant as part of her life.
17. There was a contradiction at paragraphs 63 and 65 in relation to the weight to be attached to the daughter's evidence and the finding that the judge did not accept she would not go to Zimbabwe.
Conclusions and reasons
Ground 1
18. I am not persuaded that the judge's findings were based on assumptions rather than facts. The Appellant's immigration history set out above shows that the Appellant's wife and children are not subject to deportation. The judge proceeded on the basis that the Appellant's wife and children would remain in the UK. The Appellant's daughter, L, was naturalised as a British citizen and it was likely that the Appellant's wife was entitled to a Zambrano right of residence. Given that the Appellant's son was now 19 years old and came to the UK when he was around a year old, it was likely that he could succeed under paragraph 276ADE having spent more than half his life in the UK. There was no clear evidence of criminality before the judge to indicate that he could not meet the suitability requirements. In any event, the judge considered his relocation to Zambia.
19. The Appellant's wife and son have not made applications for leave to remain, but it was clear on the evidence before the judge that the Appellant's deportation was considered on the basis that he would be deported and his family would remain in the UK (paragraph 62). The issue before the judge was whether the consequences of separating the family would be unduly harsh. That is the test the judge applied. The grounds and submissions do not assert that the judge misdirected herself in law.
20. There was insufficient evidence to show that the Appellant's wife's medical condition was likely to deteriorate or that she would not be able to obtain employment. There was no up to date medical evidence of her condition. There was insufficient evidence of the Appellant's son's mental health condition. At the date of hearing he had been referred to a psychiatrist by his GP. The evidence of the Appellant's mental health did not show that he was unable to work and the judge gave adequate reasons for the weight she attached to Ms Malkin's report.
21. The alleged assumptions set out at paragraph 2(a) to (m) of the grounds of appeal are findings or inferences, which were reasonably open to the judge on the evidence before her.
Ground 2
22. The judge did not make contradictory findings. She found that the Appellant's offence was committed over ten years ago and he had not reoffended since then. There was a low risk of reoffending. There was no material contradiction in the judge's findings at paragraphs 86 and 89. She found that the Appellant maintained his innocence at paragraph 86 and rejected the psychologist's opinion that the Appellant had an insight to his offence at paragraph 89.
Ground 3
23. I am not persuaded that the judge's assessment of the best interests of the children was flawed as alleged in the grounds. The judge did not assume the role of a social worker. The judge considered the social worker's report dated 24 April 2013 and the oral evidence of L, to which she attached significant weight. She took into account L's age, that she was going through puberty and the stage of her education. The judge also found that the Appellant was a stable influence on the family unit and he had been a positive influence for L when they were moving house.
24. The evidence before the judge did not demonstrate a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. I find that the judge's conclusions were open to her on the evidence before her. There was no error of law in the judge's conclusion that it would not be unduly harsh for L to remain in the UK without the Appellant. The Appellant could not satisfy the Immigration Rules or the exceptions in section 117C.
Grounds 4, 5 and 6
25. There was no evidence before the judge of the son's mental illness. He had been referred to a psychiatrist, but no diagnosis had been made. The judge was well aware the Appellant's family were not facing deportation. There was no arguable error of fact. The Appellant had not spent more than half his life in the UK. He came to the UK at the age of 29 and was 47 years of age at the date of hearing. The judge had considered all relevant matters. There is no error of law in the judge failing to take into account evidence, which was not before her.
Conclusion
26. Accordingly, I find that there was no material error of law in the judge's decision and I dismiss the Appellant's appeal.

Notice of Decision
Appeal dismissed

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant 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 Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

J Frances
Signed Date: 29 November 2019

Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

J Frances
Signed Date: 29 November 2019

Upper Tribunal Judge Frances