Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/09887/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 March 2017
On 03 April 2017

Before

UPPER TRIBUNAL JUDGE blum

Between

TILAK RAJ MALL
(anonymity direction NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Atcha of Ebrahim & Co Solicitors
For the Respondent: Mr Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is a remade decision following the setting aside of the decision of Judge of the First-tier Tribunal Wellesley-Cole (FtJ), promulgated on 20 June 2016, which dismissed the Appellant’s human rights appeal against the Respondent’s decision of 20 October 2015 (served on 23 October 2015) refusing his human rights claim.

2. In an ‘error of law’ hearing promulgated on 16 January 2017 I explained how the FtJ materially erred in law by failing to identify the best interests of any of the children affected by the Respondent’s decision and by failing to undertake a satisfactory assessment of the children’s best interests pursuant to s.55 of the Borders, Citizenship and Immigration Act 2009. There was no satisfactory assessment of the Appellant’s claim that his stepdaughter continued to have a relationship with her biological father. Nor had the FtJ considered whether it would be unduly harsh for the Appellant’s wife, their two biological children and his stepdaughter to be separated from him in the event of his deportation. I adjourned the hearing and directed that any further evidence that either party wished to adduce had to be served at least 7 days prior to the next hearing.

3. On 21 March the Appellant served on the First-tier Tribunal a further bundle of documents running to 68 pages. This was not in accordance with the directions. Mr Bramble did not however object to the admission of this bundle. The bundle contained evidence material to the issues in dispute and I considered it to be in the interests of justice for the bundle to be admitted.

4. The new bundle consisted of, inter alia, further unsigned and undated statements from the Appellant and his wife, copies of his wife’s British and Indian passports, copies of the stepdaughter’s British passport, a CV relating to the Appellant, documentary evidence confirming that the stepdaughter attended school and was currently in Year 3, a School Admissions/Emergency Contacts Form (which identified the Appellant as the stepdaughter’s father and that he had parental responsibility for her), documents relating to cohabitation of the parties, a copy of the Appellant’s wife’s decree nisi from August 2013, and a copy of the Respondent’s Guidance ‘Criminality: Article 8 ECHR cases’. Also provided at the hearing were copies of the two youngest children’s’ birth certificates, a copy of the British passport relating to the Appellant’s youngest child, Council Tax bills, and an annual tax summary 2014 – 2015 in respect of the Appellant’s wife.

5. I have additionally considered the very brief bundle of documents provided by the Appellant for his appeal before the First-tier Tribunal, which included a four-page, 13 paragraph statement from the Appellant and a one-page statement from his wife.

Background

6. The Appellant is a national of India, date of birth 05 July 1978. There still remains a degree of confusion surrounding his immigration history. His evidence before the First-tier Tribunal suggested that he first entered the United Kingdom sometime in 2000 as a visitor, although the Reasons For Refusal Letter maintained that the Appellant had been present in the UK in 1998 and that his leave expired in July of that year. In his statement prepared for the adjourned Upper Tribunal hearing the Appellant asserted that he visited the UK in 2000 and 2008. In his oral evidence to the Upper Tribunal however he claimed that he first entered the UK in 1999 at Heathrow airport and claimed asylum. Other than a Home Office reference number said to relate to Heathrow airport there is no record or evidence that the Appellant ever claimed asylum. In his new statement the Appellant claimed that he had limited leave to remain in the UK as the spouse of a British citizen at the time of his conviction and imprisonment. There is no documentary evidence to support this assertion. In a curriculum vitae provided by the Appellant in his new bundle of documents reference was made to employment he undertook in the United Kingdom as a shop assistant between June and November 1998. This is inconsistent with his clear oral evidence at the Upper Tribunal hearing where he stated that he first entered the United Kingdom in 1999 and claimed asylum.

7. On 16 November 2000 the Appellant was convicted of unlawful wounding and, on 15 December 2000, was sentenced to 15 months imprisonment. He apparently served 11 months of his sentence. In his appeal before the First-tier Tribunal the Appellant indicated, during cross examination, that he was absent from the UK between 2004 and 2008. This was in stark contrast to his oral evidence before the Upper Tribunal in which he stated that he left the UK in 2001 or 2002 and did not return until 2008. The Respondent’s bundle contained Application Details relating to an application made by the Appellant in India on 25 October 2007 for a visitor entry clearance. This entry clearance was granted and was valid from 25 October 2007 to 25 April 2008. In his statement prepared for the First-tier Tribunal the Appellant maintained that he entered the United Kingdom as a visitor on 21 January 2008 and returned before the expiry of his entry clearance. The Appellant claims that he then re-entered the United Kingdom illegally, in a lorry, sometime in 2009.

8. The Appellant commenced a relationship with Mrs BK (wife), who was present with Indefinite Leave to Remain (ILR), shortly after the dissolution of her 1st marriage on 9 August 2013 (the wife was issued with a British citizen passport in December 2016). The Appellant’s wife has a British citizen daughter from her first marriage, born in June 2009. This stepdaughter to the Appellant is also an Indian national. The Appellant’s wife gave birth to their 1st child, a son, EM, on 1 August 2014. The Appellant and his wife married on 13 January 2015. Just before this, on 01 November 2014, the Appellant made an application on a form FLR(O) for leave to remain on the basis of his relationship with his wife and his son and stepdaughter.

9. On 5 August 2015 the Respondent wrote to the Appellant indicating that, as a result of his earlier criminal conviction, she had decided to make a deportation order against him under section 5(1) of the Immigration Act 1971 on the basis that the Appellant’s presence in the UK was not conducive to the public good. The Appellant made representations on 11 August 2015 setting out the reasons why he should not be deported. The Respondent considered these representations and the Appellant’s earlier application (which was treated as a human rights claim) and made a decision to refuse the human rights claim on 20 October 2015.

10. In her decision the Respondent noted that the Appellant had received a prison sentence of less than 4 years but at least 12 months. The Respondent did not accept the Appellant had a genuine and subsisting relationship with his son as a result of an absence of satisfactory evidence provided by the Appellant. In the alternative the Respondent considered that it would not be unduly harsh for the Appellant’s son to relocate with him to India given his young age and adaptability, and given that both the Appellant and his wife were Indian nationals. The Respondent also considered that the son could remain in the UK with his mother and that it would not be unduly harsh for him to maintain his relationship via modern methods of communication. The Respondent noted the absence of any objective documentary evidence relating to the Appellant’s stepdaughter.

11. The Respondent accepted that the Appellant had a genuine relationship with his wife. It was noted that this relationship began when the Appellant was in the UK unlawfully. It was not considered unduly harsh for the wife to live in India as she was an Indian national and would have retained links with that country. Nor was it considered unduly harsh for the wife to remain in the UK as the relationship could continue via remote forms of communication. The Respondent concluded that the Appellant did not have a sufficient private life to entitle him to remain in the UK under the immigration rules (under paragraph 399A).

12. The Respondent acknowledged that it had been nearly 15 years since his previous conviction but that the lack of reoffending could not reduce the public interest in his deportation. The Appellant’s claim to have amended his ways and become a model citizen were considered but it was noted that he remained in the United Kingdom unlawfully. Although records did not provide sufficient details as to why his case was not referred by the prison service to the immigration service in 2000, any delay, whilst undoubtedly a significant factor, was balanced against his criminal record and his unlawful presence in the UK. The Respondent concluded that the balance between the article 8 rights affected by the decision and the public interest required his deportation. The Appellant now has a 2nd child, born on 04 March 2016.

The evidence

13. In his statement, which was signed and dated at the hearing, the Appellant described how he entered the United Kingdom illegally in a lorry in 2009 and that he remained in the UK ever since. He claimed to play an active role in the lives of his two natural children and his stepdaughter. The stepdaughter was said to maintain regular contact with her biological father and attended school in the UK. The stepdaughter’s biological father and his family had moved to Leicester and the stepdaughter visits them at least once a month. The Appellant claimed that he was present in the United Kingdom with limited leave to remain as the spouse of a UK citizen when he was convicted and that his marriage broke down after his sentence and that he had no option but to leave the UK. The Appellant’s wife was a qualified bus driver and worked with transport for London. There was a mortgage on the property owned by the Appellant and his wife. I note the absence of any independent evidence relating to the ownership of property or the mortgage on any property. The Appellant had no further convictions, had mended his ways and become “a model citizen”. He “deeply” apologised for his criminal offence which was said to be totally out of character. His family relied on him for physical, moral and emotional support. There were said to be insurmountable obstacles preventing him and his family establishing their lives outside the UK. The Appellant’s wife was said to have social, familial, professional and financial commitments in the UK which she could not ignore or abandon in order to relocate to India. Any notional relocation by the stepdaughter would not only affect her relationship with her father and family but would also disrupt her education. She was said to be very close to her half-sisters who lived in Leicester with her biological father. It was stated, without particularisation, that her relocation to India would have “long-lasting effects on her physical, emotional and mental health.” The Appellant played an active role in all his children’s lives, taking them and bringing them from school, preparing the meals, and helping them with homework. I pause at this point to note that only one of the children attends school.

14. There was no examination in chief. In cross-examination the Appellant claimed to have entered the United Kingdom as an asylum seeker in 1999, arriving at Heathrow airport. His asylum application was said to have been refused because of his criminality. After he had served his sentence, around 2001 or possibly 2002, the Appellant returned to India. The Appellant first made an application to regularise his stay in the UK about 1½ years after illegally entering in 2009. This application was made under the legacy programme. The Appellant stated that Palwinder Athwal, a person identified in the school Admissions/Emergency Contact Form as being the children’s aunt and a person contactable in the event of illness or other emergency, was his friend’s wife. Ms Athwal was not a blood relation but she lived close by and sometimes picked up his stepdaughter from school.

15. The Appellant stated that he had a brother and a maternal uncle in law in the United Kingdom. His wife had the same relatives that he did. When asked to explain why there was no statement from his brother the Appellant explained that his wife’s ex-husband was his brother and that they were not on good terms. His wife would sometimes take his stepdaughter to see her biological father (the Appellant’s brother) and this usually happened once a month. The stepdaughter would, on occasion, stay overnight with her father. When asked how he spent his day the Appellant said he took the children to school and sometimes did domestic work. His wife was aware of his criminal conviction when they started seeing each other. His brother and ‘everyone’ was aware of his conviction. It was impossible for his wife to live with the children on her own because they had a mortgage and because it was difficult for her to take time off work to look after the children.

16. I asked the Appellant why he never previously mentioned that his wife’s ex-husband was his brother. The Appellant said that no one had asked him. There was no statement from his brother because they were not on good terms. The Appellant confirmed that there were no photographs, emails, letters or text messages relating to the stepdaughter’s relationship with her biological father. The Appellant believed that his stepdaughter would be confused and upset if she had to relocate to India. In re-examination the Appellant described how he entered the United Kingdom in 1999 on a transit flight with a visa for another country. He claimed that his asylum claim was refused because of his criminal conviction. He did not bring an appeal against the refusal and was asked to leave the country. He had worked and paid taxes in the United Kingdom and had no further criminal convictions.

17. In her statement the Appellant’s wife confirmed that she had been living in the United Kingdom since entering with spousal entry clearance on 5 April 2010. She was now a British citizen. She stated that her first marriage had broken down but did not indicate in her statement that her ex-husband was the Appellant’s brother. Her oldest daughter (the Appellant stepdaughter) was born in India on 19th June 2009 and was presently 7 ½ years old. The Appellant was said to play an active role in her life and the lives of the children. He took the children to school, prepared the meals, helped them with homework and took care of them when she was working. I pause once again to note that only one of the children is at school. The wife was a bus driver and financially supported her family. Her husband previously worked in the UK between 1998 and 2000 when he had limited leave and permission to work. The Appellant was a lorry driver in India and would easily get the same kind of job in the UK. She would be unable to accompany the Appellant to India because of her children’s schooling, her mortgage, her employment and other commitments. If the Appellant was deported he would find it extremely difficult to return to the UK legally as a result of the deportation order. She and the Appellant equally shared responsibility for the children and she would find it difficult to raise the children alone and adequately discharge her parental duties.

18. In examination-in-chief the Appellant’s wife stated that she had no relatives in the United Kingdom and confirmed that her husband had cousins and a deceased aunt. On further enquiry as to whether he had any siblings it was confirmed that he had a brother. The wife knew about his criminal conviction before they got married. Her ex-husband would not allow the stepdaughter to go to India. The Appellant’s stepdaughter had a good relationship with her half siblings.

19. In cross-examination the Appellant’s wife confirmed that she had previously been married to the Appellant’s brother. When asked why this hadn’t previously been mentioned she said, “I thought it may have some impact on the case.” She had been living on her own with her daughter between finishing her relationship with her ex-husband and living with the Appellant. She would not be able to bring up her children on her own because she did not have as many friends in Slough. Her oldest daughter saw her father once or twice a month and during festivals. During the holidays the oldest daughter could spend a week with her biological father, otherwise she would stay overnight. This was a mutually agreed arrangement and there was no formal court order. The wife did not speak to her ex-husband and had not asked him to provide a statement. Palwinder Athwal was a friend but not a blood relation. She lived “a little bit distant from our house”. She had a one year old and had started a business. One of her daughters went to the stepdaughter school. The Appellant’s wife knew that her ex-husband would not allow the stepdaughter to go to India from a conversation that she had with the stepdaughter. In response to a question from me the wife said that the children would feel upset if the Appellant was deported and separated from them. She also confirmed that the children were all in good health.

Findings of fact and reasons for decision

20. It is for the Appellant to prove that the decision under appeal interferes with Article 8, and the standard is the balance of probabilities. Once there is an interference with Article 8 it is for the Respondent to justify that interference.

21. It was not disputed that the Appellant is a foreign criminal who received a sentence of imprisonment of more than 12 months but less than 4 years. Paragraph 398, 399 and 399A of the immigration rules are therefore applicable to the Appellant. I must additionally take into account the public interest factors relevant to the article 8 proportionality assessment identified in sections 117A to D of the Nationality, Immigration and Asylum Act 2002. As this appeal involves minor children I must apply s.55 of the Borders, Citizenship and Immigration Act 2009 and treat the best interests of the children as a primary consideration, although it is not a paramount consideration.

22. I did not find the Appellant to be a credible witness. This decision has already set out the various inconsistencies in his account of his immigration history. To summarise, in his 1st statement the Appellant claimed to have entered the United Kingdom as a visitor in 2000, but in his 2nd statement he claimed that he had limited leave to remain in the UK as a spouse in 2000. There is no documentary evidence in respect of either assertion. The Reasons For Refusal Letter made reference to the Appellant having had leave which expired in
1998. Indeed the Appellant’s curriculum vitae makes reference to his employment in the United Kingdom between June and November 1998. I additionally note that, in her statement, the Appellant’s wife said that he previously worked in the United Kingdom between 1998 and 2000. There is however no documentary evidence relating to his presence in the UK in 1998. In his oral evidence before the Upper Tribunal the Appellant categorically stated that he first entered the United Kingdom as an asylum seeker in 1999 and that he had never been in the United Kingdom in 1998. This is clearly inconsistent with his other evidence and is unsupported by any documentary evidence other than a Home Office reference number relating to Heathrow airport. In cross- examination in the First-tier Tribunal hearing the Appellant stated that he was absent from the UK between 2004 2008. His oral evidence before the Upper Tribunal was that he left the United Kingdom following completion of his sentence of imprisonment in 2001, or possibly 2002. During his oral evidence at the Upper Tribunal hearing the Appellant claimed, for the first time, to have made an application to regularise his stay under the legacy programme around 2010 or 2011. The Appellant was unable to produce any documentary evidence in support of this assertion and there was no Home Office record of any such application having been made.

23. What is not in dispute is that the Appellant illegally entered the United Kingdom in 2009 and has remained in the United Kingdom illegally ever since. It is apparent from the oral evidence that the Appellant’s wife entered into a relationship with him in full knowledge of his illegal immigration status and that she was aware of his criminal conviction.

24. It was with a degree of surprise that the Appellant, and then his wife, stated that her ex-husband was the Appellant’s brother. There had been no mention of this in any of their statements or indeed in any of the evidence adduced by them. The failure to disclose this relevant factor does, to some degree, undermine the general credibility of both the Appellant and his wife as it implies they were prepared to omit relevant evidence in circumstances where they believed this information would not assist the appeal. I am nevertheless prepared to accept the claim that the step-daughter’s father is the Appellant’s brother. This claim goes some way to explain why the Appellant and his wife are estranged from her ex-husband. It would also explain, at least to some degree, why there is no independent evidence relating to the stepdaughter’s private life and her relationship with her friends, her family, and her biological father. The evidence given by the Appellant and his wife relating to his stepdaughter’s relationship with her biological father was generally consistent and plausible. Both witnesses stated that the stepdaughter saw her father at least once a month. Whilst it is slightly surprising that no written evidence was obtained from the stepdaughter herself this can be reasonably attributed to her young age. If the Appellant’s brother were estranged from the Appellant and his wife he may plausibly be reluctant to assist the Appellant with his appeal. Whilst I would normally have expected to see further evidence of the stepdaughter’s interaction with her father, evidence of his view of her potential relocation to India, and evidence of the impact on their relationship in the event of such relocation, I do not find the absence of such evidence to materially undermine this aspect of the Appellant’s account.

25. I consequently find that the Appellant’s stepdaughter is the biological child of his brother, and that the Appellant and his wife are estranged from the Appellant’s brother. I am prepared to accept that the stepdaughter sees her father at least once a month, and that she sometimes stays with him and his family overnight and for periods of up to a week during holidays. Although there was no independent evidence relating to the stepdaughter’s relationships with her half siblings (her father’s other children), the wife’s account was inherently credible and not inconsistent with the other evidence before me. The Appellant’s wife gave a plausible account of how she became aware that her ex-husband would not allow his daughter to relocate to India and I accept this assertion as being true.

26. There remains however little evidence of the best interests of the Appellant’s two biological children and his stepdaughter. The stepdaughter is approximately 7½ years old and attends primary school. She is a British citizen and an Indian national. There was nothing to indicate that she was not in good health, both physically and mentally, and this was confirmed by her mother at the hearing. Little detailed evidence was adduced in relation to her education. Although there was scant evidence of the actual quality of the relationship between the stepdaughter and her biological father I accept, on the basis of the time she spends with her father and his family, that they are in a genuine and subsisting relationship. I am also prepared to accept that the stepdaughter does have a genuine relationship with her half-siblings. Mr Bramble did not dispute the Appellant’s claim that he has a genuine relationship with his stepdaughter. I note that he takes her to school and picks her up, that he is identified in the school documents as her father and that he shares parental responsibility. Drawing these factors together I find that it is in the stepdaughter’s best interests for the Appellant to remain living in the UK as part of her immediate family unit.

27. There is little evidence relating to the Appellant’s two biological children, although this is perhaps unsurprising given their young ages. The Appellant’s two biological children are just over 2½ years old and just over 1 year old respectively. They live in the same home as the Appellant and their mother. They are in good health and neither has any special needs. The Appellant has a genuine and subsisting parental relationship with these two children. It is in their best interests that the Appellant remains living in the family home.

28. It is not in dispute that the Appellant has a genuine and subsisting relationship with his wife. There was however virtually no evidence of the nature or extent of the private life established by the Appellant in the United Kingdom.

29. I will first consider whether the Appellant fulfils the requirements of paragraph 339A in respect of his private life. I am not satisfied that this paragraph applies to the Appellant. This is because he has not been lawfully resident in the UK for most of his life and because there is no satisfactory evidence that he is socially and culturally integrated in the UK. Nor is there any evidence that there would be very significant obstacles to his integration in India given that he lived in that country for most of his life and would undoubtedly be familiar with the culture the language and the way of life.

30. Nor am I satisfied that paragraph 399(b) applies. Although the Appellant has a genuine and subsisting relationship with his wife this relationship was formed at the time when he was unlawfully in the United Kingdom and had a precarious immigration status. Nor would there be compelling circumstances over and above those described in paragraph EX.2 of Appendix FM given that the Appellant’s wife is Indian, that she lived in India until 2010, and that she would still be familiar with the language, culture and way of life in India.

31. Having identified the best interests of the three children, I must now place those interests in the wider proportionality assessment. Paragraph 399 attempts, within the confines of the immigration rules, to reach a balance between the article 8 public interest factors and the impact of a deportation decision on children. Under paragraph 399(a)(ii)(a) I must first consider whether it would be unduly harsh for the children to live in India. Following MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450 and MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705 I must have regard to the conduct of the Appellant and any other matters relevant to the public interest when applying the "unduly harsh" concept. In this regard I must take into account the public interest factors identified in sections 117B and 117C of the Nationality, Immigration and Asylum Act 2002. Of particular relevance is s.117C (5) which indicates that the public interest requires a person’s deportation unless the person has a genuine and subsisting parental relationship with a qualifying child, and the effect of the deportation on the child would be unduly harsh.

32. The Appellant’s two biological children are of a very young age and could easily adapt to life in India. They are both Indian citizens, as are their parents. The Appellant lived most of his life in India and his wife only arrived in the UK in 2010 having previously lived in India. They would both be in a position to ensure the welfare and safety of their children, the Appellant having previously worked as a lorry driver. The two youngest children have yet to develop any significant private life outside their family unit. The children have no medical issues and are likely to readily adapt to life in India with the support of their parents. The Appellant’s conviction, although now of some vintage, was a serious one as reflected in the 15 month sentence. He has an appalling immigration history having entered the country illegally and having resided here illegally since 2009. Having considered these factors in a holistic manner I am not persuaded that it would be unduly harsh to expect the two youngest children to relocate to India.

33. I am however satisfied, for the following reasons, that it would have an unduly harsh impact on the Appellant’s stepdaughter for her to relocate to India, even taking full account of the Appellant’s criminality and immigration history. This is because she has a genuine and subsisting parental relationship with her biological father that would be effectively be severed were she to relocate. If she moved to India she would lose the ability to visit and stay with her father and her half-siblings. This would undoubtedly have a significant adverse impact on these relationships. Although of lesser weight it is additionally relevant that she would lose the relationships she has established with friends and the familiarity of her surroundings having grown up in the UK. I note however that the stepdaughter’s father has indicated that he would not allow her to leave the UK, thus rendering this possibility effectively academic.

34. I must now consider, pursuant to paragraph 399(a)(ii)(b), whether it would be unduly harsh for all the children to remain in the UK without the Appellant. To recap, it is in their best interests to remain as a single family unit and therefore for the Appellant to remain in the UK. The familial relationships cannot be effectively maintained at a distance, although contact would not be lost (contact could for example, continue through remote forms of communication and visits). The Appellant provides support, both practical and emotional, to his children, and there are undoubtedly strong bonds of affection between them, as one would expect from such close familial relationships. The children do not however have any vulnerabilities or particular needs. They are in good health. There was no specific evidence in respect of the nature of the impact on the children if separated from the Appellant. It was not submitted that the children’s welfare or security would be compromised if the Appellant were deported. Nor was it submitted that the children would be rendered destitute by the deportation. There was a dearth of detailed evidence relating to the wife’s circumstances such as her employment as a bus driver and her social circumstances. There were no details of home ownership, the mortgage or the mortgage repayments. Although I accept that she is employed as a bus driver there was no other evidence of her employment details or whether her employment hours were flexible. There was no evidence that suitable child care arrangements could not be made. I take into account that the family have moved to Slough and that the network of support the wife previously had is no longer available. The School Admissions/Emergency Contacts form however indicated that she is not without any support (in contrast to the wife’s evidence the Appellant said that Ms Athwal lived close by and sometimes picked up his stepdaughter from school) and there was no evidence that other child care arrangements were unavailable. Even if this were not the case and the wife was unable to continue her current employment because she cannot arrange adequate childcare there was no suggestion that the family would not be adequately housed and maintained in light of the local authority’s statutory obligations and the wife’s entitlement to welfare benefits in the unfortunate event that she becomes unemployed, or that the children’s welfare would be compromised.

35. There are scant details of the Appellant’s offence of unlawful wounding. The seriousness of the offence is however reflected in the sentence of 15 months imprisonment. Although it does not appear that deportation proceedings were initiated in 2000 the Appellant admits to having voluntarily left the UK following his release in 2001 or 2002. Despite the Appellant having been convicted in 2000 there remains a strong public interest in deterring others from committing violent offences and in expressing society’s revulsion at the commission of such offences. I take into account the public interest in maintaining effective immigration controls and the need to ensure public confidence in the immigration system. I additionally take into account the Appellant’s illegal entry into the UK, his continued unlawful presence, and the fact that the relationship with his wife was established when they were both aware of his unlawful presence, although the children are clearly blameless for the actions of their parents. I take account of his proficiency in English and his ability to be financially independent.

36. Having holistic regard to the above factors, and applying the principles enunciated in MM (Uganda), it would not, in my judgement, be unduly harsh for the children to remain in the UK without the Appellant. Whilst his deportation will break up the family unit and is likely to cause difficulties for his wife in terms of child care, and whilst the children will undoubtedly miss him, and taking full account of the fact that it is in their best interests for him to remain, I am satisfied that the strong public interest factors identified above do not render the impact on the children unduly harsh.

37. I must now consider whether there are any factors ‘over and above’ those contained in paragraphs 399 and 399A that amount to ‘very compelling circumstances’ such as to entitle the Appellant to remain in the UK under paragraph 398. Ms Atcha did not identify any such circumstances in her written or oral submissions. I have nevertheless considered the length of time the Appellant has remained in the UK since his illegal entry in 2009, the fact that he has no other convictions, his age when the unlawful wounding offence was committed, as well as the impact of separation on all his children and his wife and the best interests of his children, as previously considered. In my judgement the factual matrix in this appeal does not disclose any ‘very compelling circumstances’ within the terms of paragraph 398.

38. In Hesham Ali (Iraq) (Appellant) v Secretary of State for the Home Department (Respondent) [2016] UKSC 60 the Supreme Court did not find that the immigration rules (paragraph 398) constituted a ‘complete code’, but did conclude that “very compelling circumstances” would need to be demonstrated to resist deportation in respect of a serious offence (see [46] & [50] of the majority decision in Hesham Ali). I have considered this appeal applying the principles enunciated in Hesham Ali. In assessing the proportionality of the Appellant’s deportation I have fully considered the impact on the relationships between the Appellant and his wife, his stepdaughter and his two biological children. Given the greater specificity with which the public interest factors have been identified, and Parliament’s assessment of the weight to be accorded to those public interest factors, I find that the Appellant’s deportation, although clearly interfering with family life, does not amount to a disproportionate interference in light of his criminality and his very poor immigration history.

Notice of Decision

The human rights appeal is dismissed

31 March 2017

Signed Date

Upper Tribunal Judge Blum