Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08565/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 September 2016
On 29 September 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

m o o
(aNONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: Mr Osakanu in person

DECISION AND REASONS
1. The appellant is a citizen of the Democratic Republic of Congo and is 40 years old. He first came to the United Kingdom in 1995 and claimed asylum at port. On 31st December 1999 his British citizen daughter V was born. On 22nd October 2002 he was granted Exceptional Leave to Remain. He was then convicted on a guilty plea of two counts of sexual assault which included attempted rape. The First-tier Tribunal Judge set out the full extent of the appellant's offending at [33] of his decision and this included three driving offences (including driving with excess alcohol and no insurance) in 1997-1998, assaulting a police officer in 2004 (for which he received a fine and a compensation order) and disorderly behaviour in 2005 and the index offences committed in 2006.
2. On 11th February 2012 the appellant was notified that he was liable for deportation. A decision was made to deport the appellant on 2nd July 2012 but his appeal against that decision was allowed such that he was granted discretionary leave to remain for six months pending resolution of the family court proceedings. Those family proceedings with respect to V were concluded on 15th July 2013.
3. On 10th December 2014 his partner a citizen of the DRC with refugee status gave birth to the appellant's second daughter A. On 11th May 2015 he was again notified that the Secretary of State had decided to make a deportation order against him under Section 5(1) of the Immigration Act 1971 because his presence was not considered conducive to the public good. He was invited to make representations which the appellant did on 1st June 2015.
4. Following the further submissions on Article 3 and Article 8 grounds on 8th October 2015 the appellant's human rights claim was refused by the Secretary of State.
5. The application for permission to appeal was made by the Secretary of State on the basis that the First-tier Tribunal had misdirected himself as to the length of sentence and relevant Rules when determining at paragraph 122 that the deportation of the appellant would be unduly harsh upon his daughter. In considering paragraph 399(a) of the Immigration Rules the judge had failed to recognise that the appellant was detained under Section 37 of the Mental Health Act 1983 between being sentenced on 19 October 2007 and his discharge on 15 February 2012. It was noted that Section 117D (4)(c) of the Nationality, Immigration and Asylum Act 2002 includes a person who is sentenced to detention or ordered or directed to be detained in an institution other than prison (including in particular a hospital or an institution for young offenders) for that length of time.
6. It was submitted that the appellant was detained for over four years and thus the exception at 399(a) did not apply and therefore it was incumbent upon the First-tier Tribunal Judge to consider 398(c) which reads as follows:
"(c) The deportation of the person from the United Kingdom is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A."
7. The Secretary of State advanced that the judge's consideration of very compelling circumstances at paragraphs 126 and 138 failed to identify very compelling circumstances over and above those described in paragraphs 399 and 399A. It was therefore submitted that the judge by failing to direct himself as to the correct test had materially erred in law by carrying out a balancing exercise without reference to the threshold that those circumstances might be over and above.
8. Further, and in the alternative, it was submitted that the judge had failed to take into consideration that the report of Peter Horrocks, the independent social worker, was dated 21 March 2013 [64] and the conclusions Mr Horrocks made with regard to the appellant's daughter were relevant to the circumstances at that time rather than when the appellant's daughter was considerably younger. In other words the material relied upon was out of date.
9. The judge failed to acknowledge the lack of up-to-date independent evidence regarding the impact the appellant's deportation would have upon the appellant's daughter and that the appellant's daughter did not attend the appeal hearing. The appellant's daughter's most recent evidence before the Tribunal was dated January 2012. It was submitted that there was a suggestion that the appellant's daughter was unable to articulate her own opinion as to the impact that deportation of her father would have upon her. It was submitted that the judge's failure to consider the relevant evidence and circumstances at the present time was an error of law.
The Hearing
10. At the hearing before me Mr Bramble relied on the written grounds of appeal. The appellant and his partner appeared in person. Mr Bramble emphasised that the judge had not referred to the sentencing remarks of the judge and the length of time the appellant had been detained under the Mental Health Act. Further to KMO the judge needed to consider the whole picture. The judge appeared to accept that the appellant could not succeed in relation to his private life but there must be circumstances over and above the exceptions in paragraphs 399 and 399A of the Immigration Rules. There was no up to date evidence and the judge was not entitled to find in favour of the appellant just because the effect on V was unduly harsh or the exceptions in paragraph 399 or 399A had been fulfilled. There needed to be compelling circumstances.
11. The appellant responded in person that he retained his family life with V and his partner and baby daughter.
Conclusions
12. The automatic deportation provisions do not apply and this case is a 'conducive deportation'. The appellant's conviction on 27th January 2007 predated passing of the UK Borders Act 2007 and the coming into force of Section 32 of the UK Borders Act 2007. The Immigration Judge must, nonetheless, attach weight to the Secretary of State's view of the public good and public interests without any statutory presumption. Deportation is a matter of discretion for the Secretary of State guided by consideration of all relevant factors including the Immigration Rules. Deportation, however, is still to be treated as in the public interest and for the public good. OH Serbia v SSHD [2008] EWCA Civ 694, referred to factors to be considered which included the risk of re-offending, the deterrent effect and the role of deportation as an expression of society's revulsion at serious crimes. There are also the Section 117 Nationality Immigration and Asylum Act statutory considerations to take into account.
13. Relevant to this case is Section 3(5) of the Immigration Act 1971 which sets out
'A person who is not a British citizen is liable to deportation from the United Kingdom if -
(a) the Secretary of State deems his deportation to be conducive to the public good; or ?'
14. Paragraph 390A of the Immigration Rules is the focus and this reads as follows:
"Where paragraph 398 applies the Secretary of State will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors."
The Immigration Rules at A398 set out.
"These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked.
398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
For clarity The Immigration Rules at 399 set out.
399. This paragraph applies where paragraph 398 (b) or (c) applies if -
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
399A. This paragraph applies where paragraph 398(b) or (c) applies if -
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.
15. The first ground of complaint was that the judge had not realised that the detention of the appellant within hospital was for the purposes of the Immigration legislation a period of imprisonment and counted towards the total of imprisonment when applying the relevant Immigration Rules. Although the reference in Section 1117D is for the interpretation of 'this part' the courts have held that Section 117 is an aid to construction of the Immigration Rules as Section 117A states
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts-
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard-
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), "the public interest question" means the question of whether an interference ?
16. Section 117D sets out what is to be classified as counting towards the length of time for the purposes of imprisonment and which in turn will set the relevant test for deciding the weight of the public interest and whether the decision to deport the appellant is proportionate.
Section 117D
(4) In this Part, references to a person who has been sentenced to a period of imprisonment of a certain length of time-
(a) do not include a person who has received a suspended sentence (unless a court subsequently orders that the sentence or any part of it (of whatever length) is to take effect);
(b) do not include a person who has been sentenced to a period of imprisonment of that length of time only by virtue of being sentenced to consecutive sentences amounting in aggregate to that length of time;
(c) include a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders) for that length of time; and
(d) include a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period, provided that it may last for at least that length of time.
17. It is clear from the First-tier Tribunal Judge's decision at [5] that when the appellant was convicted of two sexual offences, one of sexual assault and one of attempted rape of a female on 29th January 2007 the sentencing judge imposed a hospital order in respect of each count under section 37 of the Mental Health Act 1983. The judge noted that there was imposed a restriction order under section 41 of the same Act without limit of time. The First-tier Tribunal Judge did not specifically allude to the time the appellant was detained under the Mental Health Act as constituting imprisonment for the purposes of the Immigration Rules and Section 117, but I am not persuaded as to the first ground of the appellant's challenge. There is no doubt that the judge was aware that he needed to direct himself to whether there were very compelling circumstances justifying the appellant being given leave to remain and this he refers to at paragraph 126.
18. The real question is whether the First-tier Tribunal Judge was alive to the weight that is now placed on the public interest in deportation cases and whether exceptional circumstances were so found. Putting it a different way and in line with the Immigration Rules very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are set out in MF (Nigeria) v SSHD [2013] EWCA Civ 1192; [2014] 1 WLR 544 and Lord Dyson MR, giving the judgment of the court, said this at paragraphs 40 to 44:
"40. Does it follow that the new rules have effected no change other than to spell out the circumstances in which a foreign criminal's claim that deportation would breach his article 8 rights will succeed? At this point, it is necessary to focus on the statement that it will only be 'in exceptional circumstances that the public interest in deportation will be outweighed by other factors'. Ms Giovannetti submits that the reference to exceptional circumstances serves the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who do not satisfy paras 398 and 399 or 399A. It is only exceptionally that such foreign criminals will succeed in showing that their rights under article 8(1) trump the public interest in their deportation.
41. We accept this submission. In view of the strictures contained at para 20 of Huang [2007] 2 AC 167, it would have been surprising if the Secretary of State had intended to reintroduce an exceptionality test, thereby flouting the Strasbourg jurisprudence. At first sight, the choice of the phrase 'in exceptional circumstances' might suggest that this is what she purported to do. But the phrase has been used in a way which was not intended to have this effect in all cases where a state wishes to remove a foreign national who relies on family life which he established at a time when he knew it to be 'precarious' (because he had no right to remain in the UK). The cases were helpfully reviewed by Sales J in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin). The fact that Nagre was not a case involving deportation of a foreign criminal is immaterial. The significance of the case law lies in the repeated use by the European Court of the phrase 'exceptional circumstances'.
42. At para 40, Sales J referred to a statement in the case law that, in 'precarious' cases, 'it is likely to be only in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8'. This has been repeated and adopted by the European Court in near identical terms in many cases. At paras 41 and 42 he said that in a 'precarious' family life case, it is only in 'exceptional' or 'the most exceptional circumstances' that removal of the non-national family member will constitute a violation of article 8. In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual's article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be 'exceptional') is required to outweigh the public interest in removal. In our view, it is no coincidence that the phrase 'exceptional circumstances' is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals.
43. The word 'exceptional' is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the 'exceptional circumstances'.
44. We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence. We accordingly respectfully do not agree with the UT that the decision-maker is not 'mandated or directed' to take all the relevant article 8 criteria into account (para 38)."
19. Section 117C of the Nationality Immigration and Asylum Act has relevance to the interpretation of the Rules in relation to proportionality albeit that the rules regarding deportation are a 'complete code'.
Section 117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where-
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
20. Statute has established that the deportation is construed to be in the public good and where a foreign criminal has been convicted of an offence for four years the appellant cannot, because of the length of his sentence, rely on the exceptions set out under Paragraphs 399 or 399A (with reference to Paragraph 398(b) or (c)), that is a relationship with a child under the age of 18 years, the fact that he has been lawfully resident in the UK for most of his life and he is socially and culturally integrated in the UK and there would be very significant obstacles to his integration into the country to which it is proposed he is deported. Any compelling reasons must be 'over and above those described in paragraphs 399 and 399A'. Section 117C(2) confirms that the more serious the offence committed the greater the public interest in deportation. Section 117C (6) again sets out the test to be applied in respect of those sentenced to more than 4 years in prison or in this case hospital detention.
21. CT (Vietnam) [2016] EWCA 488 emphasises that the public interest in deportation must be outweighed by factors over and above those set out at paragraph 399 and 399A of the Rules and only where they give rise to very compelling circumstances.
22. There is no doubt throughout the determination that the judge was fully aware that the scales weighed heavily in support of deportation and for example at paragraph 35 the judge recorded
"It is in the public interest that foreign criminals who commit such offences are deported. The public will rightly have a sense of revulsion at the commencement of such offences. The more serious the crime, the greater the public interest in deportation. I remind myself that deportation also serves to discourage other s from committing such offences."
and at paragraph 115 the judge states:
"The offences that the Appellant committed were, as I have acknowledged more than once above, very serious. I reiterate that I have very much borne in mind the public interest in deportation. The public is entitled to feel revulsion at the type of offence the Appellant committed."
The judge, however, considers the circumstances of the offending including the appellant's illness and his period of offending when arriving at his conclusions in relation to compelling circumstances. The judge continues at paragraph 116:
"However, I must also bear in mind the very important fact that the Appellant was suffering from psychosis, a severe mental illness, when he committed the index offences. His evidence as to how he felt at the time he committed the offences, as recorded by Dr. Anderson, would indicate he was delusional. The Appellant's evidence was not challenged by the Respondent. Indeed, the Respondent acknowledges that the Appellant's mental illness was a factor in his offending. The evidence I had would indicate that it was a very important factor in his offending."
And at 117:
"I find that the Appellant's illness significantly ameliorates the gravity of his offences. The offences took place over a two day period. The medical evidence I had shows that his psychosis started in 2005. He has not been psychotic since he came out of hospital on day release in 2011."
And at 118:
"I have already recorded what I found to be the Appellant's genuine contrition for what he had done."
23. The judge does not place over emphasis on the lack of offending since release which would, as indicated in CT be an expectation of society rather than a positive factor. The judge did make reference to the First-tier Tribunal decision dated 15th April 2013 and there it is clearly found that
'the documentation on file clearly indicates that the appellant's criminal conduct derived from his mental health problems. It is not suggested otherwise by the respondent'.
24. In other words it was the health problems and the circumstances of the appellant's ill health which contributed to the assessment of compelling circumstances. MM Zimbabwe [2012] EWCA Civ 279 recognised that where evidence suggested (despite not guaranteeing) that an appellant would not have offended but for his mental health problems and would not re-offend in the future, this can have a bearing on the weight given to the pubic interest in deportation. Moses LJ opined at [28] that all the circumstances should be taken into account
"28. But there does remain the question of proportionality in the light of the unchallenged factual finding that the appellant has established a strong private life in the United Kingdom based on his family ties, his illness, his dependency on his clinicians and his medication, and the obligation under the Mental Health Act 1983 to provide him with community care after discharge (as recorded at paragraph 11(vi) and [71] of Senior Immigration Judge Jarvis's determination). Normally, as this court explained in JO and JT v SSHD [2010] EWCA Civ 10 [29] the need to protect society against serious crime is even more important and can be given greater weight than the need to maintain effective immigration control. But as the Court of Appeal recognised, the weight to be placed on the criminal offending will depend on the seriousness of the offences and all the other circumstances of the case."
And albeit that the regime has changed since 2012 in that the Immigration Rules are a complete code that does not preclude all the relevant facts from being addressed.
"32. It was open to Senior Immigration Judge Jarvis on reconsideration to reach the conclusion that it was not established that the sole reason the appellant committed the crimes was because of his schizophrenia. But the evidence was all one way, and unchallenged by the Secretary of State, that his illness was pivotal or a central cause of his offending. Because of the way the case was argued, Senior Immigration Judge Jarvis did not go on to consider the impact of that evidence on the proportionality of his deportation for the purposes of the balancing exercise under Article 8(2). Whilst there was no guarantee that the appellant would not have offended but for his schizophrenia and thus no guarantee that he would never offend again, when considering the risk to the public of his continued presence in this country it was of great importance to assess the extent to which continued medication and support would remove the risk of further offending. If the correct conclusion was that although the risk could never be said to have been entirely removed, it would, for practical purposes, be minimal, that was a powerful factor in considering the proportionality of the deportation order."
25. It has been asserted that the judge has thus failed to identify very compelling circumstances because of his concentration on the unduly harsh nature of the separation between the appellant and V and/or Ms Tshibola. The First-tier Tribunal Judge accepted [73] that the appellant has a genuine relationship and regular unsupervised contact with his daughter, who lives with her step sister and whose mother had abandoned her. Under S55 of the Borders Citizenship and Immigration Act 2009 the best interests of the child are relevant, and when considering them, the judge is obliged to make a consideration of those interests. The judge recorded with respect to the appellant and his daughter at paragraph 120:
"The Appellant and V would undergo renewed separation on the Appellant's deportation. It would be separation for a very long time. The Appellant could not return to the United Kingdom before ten years had elapsed. The evidence before me did not lead me to conclude that there would be funds readily available for V to travel on a regular basis to the DRC to see her father or for both the Appellant and V to travel to a third country to meet."
And at paragraph 121:
"What points strongly to the conclusion that it would be unduly harsh for V to remain in the United Kingdom without her father is the fact that V's other biological parent has abandoned her (with all the attendant hurt), that she is vulnerable, that she is at a difficult age and that it is only in the last four years that the fractured relationship she had with her father has been healed to the extent that closeness and love have been restored. The re-fracturing might have extremely severe consequences for V as identified by Mr Horrocks."
26. It is important that the judge did set out the exceptions which were said to apply in relation to paragraph 399(a) and (b) in order to be able to show what over and above those specific factors needed to be shown in relation to the appellant and further to set the context. I do not find that the judge misdirected himself. He referred at [26] to Part 13 of the Rules as being a complete code for considering Article 8 claims by those to be deported. The judge also identified MF Nigeria [2013] EWCA Civ 1192 and the requirement to consider 'very compelling circumstances'. Clearly at [27] the judge identified that he appellant must 'demonstrate 'very compelling circumstances justifying his being given leave to remain here'. The judge further directed himself in relation to relevant case law including SS Congo v SSHD [2015] EWCA Civ 317.
27. A factor found relevant and this is in relation to the exception under paragraph 399(a) is that the appellant's partner could not return to the Democratic Republic of Congo as she had been granted refugee status by reference to that country. This the judge recorded at paragraph 130 and at 131. The judge took into account the wider circumstances and specifically noted both the decision of MAB (para 399; "unduly harsh") USA [2015] UKUT 435 (IAC) and KMO (section 117 - unduly harsh) Nigeria [2015] UKUT 543 (IAC). It is clear that at paragraph 135 the judge found that there was suitable medication available for the appellant in the DRC but also noted specifically at paragraph 136 that the appellant's deportation in the circumstances would almost inevitably have an adverse effect on his mental health. There is no doubt that the separation from his partner would have the effect of reducing his 'care' and support in relation to his illness.
28. The judge stated that he had taken the above additional matters into account when addressing proportionality and further, at paragraph 138, the judge states,
"After full and lengthy deliberation, I have come to the conclusion that there are very compelling circumstances in this appeal, justifying the Appellant being given leave to remain."
29. Although the judge states "it would unlawfully infringe his and his family members' qualified protected rights to enjoy family life together in the United Kingdom" there is no doubt that the judge has taken into account all factors including that the appellant's offending was such that it stemmed from his psychosis which was being appropriately treated. The judge also identified between paragraph 77 and 81 that the appellant's current mental state was that he had been complying with his medication and the latest report on his mental health was that his consultant psychiatrist, on 10 March 2015, confirmed that he "remains free of any psychotic symptoms" and there was "no evidence of anhedonia or negative thoughts or self-harm/suicidal ideas". He noted that the appellant did not drink alcohol and did not use illicit drugs and he was aware of the need for his continued abstinence. Overall the appellant remained stable despite the stress generated by the advent of the new baby. He also stated that the consultant psychiatrist recorded that the "appellant is able to self-diagnose when he is at risk of becoming ill-treatment and is therefore able to take steps to prevent his actually becoming ill-treatment".
30. The judge also identified that he had considered paragraph 117C, which applies to foreign criminals, and noted with no doubt Section 117B in mind that the appellant had obtained qualifications in engineering and IT from the College of North East London and that if permitted to remain he would find himself gainful employment. In addition, at paragraph 82, the judge recorded that the Home Office Presenting Officer conceded that there was no evidence to show that there was a real risk that the appellant would reoffend. There is no indication that the appellant has re-offended up until the time of the decision. The judge, however, did not place an over emphasis on this such as to reduce the weight of the sentence and public interest but did place the offending behaviour in the context of the appellant's illness which in turn affected the weight attached to the public interest in deportation. The judge, nonetheless, has taken into account the index offences and also taken into account offences other than the index ones which were peripheral to the decision. It was clear throughout the determination that the judge took into account that the appellant was psychotic when he committed those very serious offences but that his mental health was now good and that he had been stable since being released in February 2012 and indeed noted that the appellant had been on day release.
31. In sum it is not just the relationships between the appellant and his daughter V or his current wife and child that drew the judge to finding compelling circumstances, noting that the appellant had a family court order in his favour granting him regular contact with V since 2013 but of specific importance is that the appellant was mentally ill when he undertook the offence and it is in the light of that that the judge made the decision.
32. There was further criticism that the judge had failed to consider the evidence as at the date of the decision and the judge at paragraph 111 stated,
"I attach great weight to what Mr Horrocks says as to the effect the Appellant's deportation would have on V. What he said in his report holds good today."
It was asserted that there was no up-to-date evidence specifically with regard V, but the appellant attended court and was subject to lengthy cross-examination and gave extensive evidence at court together with his witnesses. The judge found him a truthful and impressive witness [74] and it was open to the judge to treat and accept the appellant's own oral evidence as relevant and up to date evidence. There was evidence from the daughter and although she did not attend the hearing it is relevant that she is still a minor. There was relevant up to date oral and written evidence from the appellant and the appellant's partner with respect to his relationship with V on which the judge placed reliance [74]-[76]. It was open to the judge and in my view correct to place the evidence in historical context.
33. The judge also noted a letter dated 5th January 2015 from Thomas Maguire, the Appellant's Mental Health Social Worker. The appellant gave evidence and the judge noted at [44]
"the appellant told me that at present his mental state is stable. He feels well. He has access to his supervisory team. He is taking his medication as required. He takes 15mg of Olanzapine per day. He sees his doctor once every three months and his Mental Health Social Worker every two weeks as a matter of course. He can see him whenever he wishes"
34. The judge and took into account the variety of reports over the years from 2011 onwards. There was a psychiatric report dated March 2011 detailing the appellant's illness and progress and a report and from Ms Mapp, Forensic Social Worker dated April 2014 which confirmed that the appellant was discharged from hospital on 15th February 2015 under the Mental Health Act 1983, had been 'very well mentally since' and there had been no incidents of concern. In fact, as the judge identified the appellant had had unescorted leave from hospital since March 2010 and was discharged from the Mental Unit in February 2012 [82]. The judge also placed reliance on a report from Mr Horrocks, an independent social worker, dated 21st March 2013 and a report dated 10th March 2015 from a Consultant Psychiatrist Dr Previtera which confirmed the appellant was free of any psychotic symptoms and on which the judge placed reliance. At [83] the judge stated that there had been nothing but improvement in the appellant's mental state since 2012 and that he had now been released for four years and was on day release before that.
35. The appellant was unrepresented and it is not always uppermost in unrepresented litigants minds that new reports are required or of the importance of having V at court. This is not recorded as being challenged during the hearing such that the appellant was able to counter the suggestion that because his elder daughter was not at court their relationship was no longer of the strength he claimed. There was no indication that the evidence regarding his illness or improvement had changed. It was not challenged by the respondent and the judge took into account all of the evidence before him.
36. An overall reading of the decision discloses that the judge and was under no illusions that the public interest weighed heavily in favour of the appellant's deportation but found compelling circumstances in his favour of the appellant. Although the court was criticised for applying the wrong test the First-tier Tribunal Judge in my view made findings of fact which brought the case into the exceptional or compelling circumstances category. It was open to the judge to make up-to-date findings on the evidence that was before him.
37. I find there is no material error in the decision of the First-tier Tribunal and the decision shall stand.

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 him or any member of their 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.

Helen Rimington
Signed Date Signed 29th September 2016

Upper Tribunal Judge Rimington