Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/09934/2017

THE IMMIGRATION ACTS

Heard at Birmingham Employment Tribunal
Decision and Reasons promulgated
On 17 October 2018
On 14 January 2019

Before

UPPER TRIBUNAL JUDGE HANSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

And

MLS
(ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Mr Mills - Senior Home Office Presenting Officer.
For the Respondent: Mr Pipe, Counsel, instructed by Gracefields Solicitors (Leeds).

ERROR OF LAW FINDING AND REASONS

1. The Secretary of State appeals with permission a decision of First-Tier Tribunal Judge M Robertson, promulgated on 21 March 2018, in which the Judge allowed the appellant's appeal on human rights grounds.

Background

2. MLS is a national of Jamaica born on 31 July 1976. He is subject of an order for his deportation from the United Kingdom following his conviction on 18 November 2015 for possession with intent to supply a controlled Class A drug - Crack Cocaine for which he was sentenced to 4 years imprisonment. MLS was also convicted of possessing a Class B - Cannabis/Cannabis resin, for which he was sentenced to one-month imprisonment to be served concurrently.
3. The Judge considers the available evidence including that relating to the index offence. The Judge noted it was accepted by the Secretary of State that MLS has a genuine and subsisting relationship with his two children. He is separated from his wife.
4. At [34] the Judge writes:

34. On the evidence in the round, I accept that the Appellant has always played a major role in the parenting of the children; he is keen to see them do well and has been there to support them during most of their lives. It was the contact he had with them during the time of his imprisonment and the encouragement he gave them that helped them through the time of separation. I find that they will experience considerable difficulties if he were to be deported from the UK and I find that it is in their best interests for him to remain in the UK so that physical contact can occur. Although it is stated that his relationship with his children can continue by modern means of communication if he is deported, the Appellant stated that telephone communication from the prison was relatively straightforward and he could speak to his son every morning before school. He stated, and I accept, that if he was deported, telephone communication would be difficult due to the time difference. It is also difficult to maintain a committed and effective role in the lives of his children if he is many miles away. I find that the Appellant is determined to be a good role model for his children and it is highly unlikely that he will do anything to put his position in jeopardy again.

5. The Judge sets out findings in relation to section 117C of the 2002 Act at [37] in the following terms:

37. As to the provisions of s 117C of the 2002 Act, I find:

i. There is a very strong public interest in deportation as set out at paragraph 15 above, for the prevention of crime and disorder. The Appellant's offences are serious, as reflected in the sentence imposed. I have kept this at the forefront of my mind in making my assessment. The UK has a margin of appreciation when striking a fair balance between his rights and those of the public in preventing crime and disorder.
ii. The index offence was the Appellant's first offence. He was on bail until he was sentenced (from 2013 to January 2016) and committed no further offences. He is at low risk of reoffending and assessed as being at low risk of causing serious harm to himself or others. His conviction has caused him anxiety due to the separation from his family and the impact of his incarceration on his family.
iii. As to exception one (s 117C(4)), the Appellant has not been in the UK lawfully most of his life. He was without leave from the end of his visit Visa. In February 2000, until he obtained a spousal visa in 2009. He was lawfully in the UK on his re-entry to the UK, except possibility for a short period before he obtained his ILR until his deportation order was signed on 29 September 2016. It is likely that having spent approximately 18 years in the UK, and having only returned to Jamaica once or twice in that time, he is socially and culturally integrated into the UK. Although it is stated in the RL at p 59 of RB, that the Appellant re-entered the UK when he was 34 years of age, it was confirmed during the hearing that the Appellant had in fact been in the UK since he arrived on a visit Visa. This would mean that he was aged 25 years of age when he came to the UK. However, this still does not mean that he would have difficulty reintegrating into life in Jamaica. English is widely spoken there. There was conflicting evidence as to the number of siblings he had (it was stated that he had 11 siblings at p 36 of AB, although the Appellant stated that he did not meet all of them as he was the youngest sibling. At p115 of AB it is stated that he had two sisters and three brothers. During the hearing the Appellant stated that one of his sisters had passed away and the other was in the USA, that one brother was in the UK, another in the USA and he did not know where the other one was; he had heard once that he was in one of the Caribbean islands and another time that he was in Canada.) I do not, however, accept that even if he had no relatives in Jamaica, that he has no one there. He clearly was in contact with Ms Strachan (see her letter at PP 33 - 35 of A B), and referred to her as a family friend. I find that he has no serious health concerns, he is able to work and he would be able to reintegrate into life in Jamaica on his return.
iv. As to exception 2, the Appellant no longer has a genuine and subsisting relationship with his ex-wife. It is unlikely that she would relocate to Jamaica to ensure that he has contact with his children. I do not find that her care of her nephew would result in a significant inability to visit him with the children because she is simply fostering him and she may have to adjust to fostering arrangements if she is to adequately care for her children. I do not find that it would be unduly harsh for her to remain in the UK without the Appellant.
v. However, the Appellant does have a genuine and subsisting relationship with his children and I have found that it is in their best interests for him to remain in the UK. I find it would be unduly harsh for them to go to Jamaica with him, because that is likely to involve a separation from their mother; they are British nationals. They were born here and have not known life in Jamaica.
vi. Would it be unduly harsh for them to remain in the UK without him? I find that it would, given the significant part he has played in their upbringing, and the contact he maintained with them whilst he was in prison, which played some part in helping them to come to terms with separation from him. I have placed weight on the reports of Ms Harris, which I find fair and provide a balanced opinion of the likely effect on the children of the Appellant's removal from the UK. Had his role in their lives been less significant, they would be less affected by his removal. His presence is a stabilising influence, and it results in them having a more positive relationship with their mother and their grandmother.
vii. Are there very compelling circumstances over and above those described in Exceptions 1 and 2? Mr Pipe drew my attention to the guidance in relation to "very compelling circumstances over and above those identified in the Exceptions 1 and 2" as given in NA (Pakistan) [2016] EWCA Civ 662 at paras 28 - 32. The Court of Appeal stated that a foreign criminal was entitled to rely on features of his case of a kind mentioned in exceptions 1 and 2, or features outside the circumstances described in those Exceptions which made his claim based on Article 8 especially strong. However, "? If a serious offender could only just succeed in such an argument, it would not be possible for him to describe his situation as involving very compelling circumstances over and above those described in Exception 1 and 2. One might describe that as a bad case of the kind described in Exception 1 and 2. On the other hand, if you could point to factors identified in the descriptions of Exception 1 and 2 of an especially compelling kind in support of an article 8 claim, going well beyond what will be necessary to make out a bare case of the kind described in Exception 1 and 2, they could in principle constitute "very compelling circumstances over and above those described in Exceptions 1 and 2", whether taken by themselves or in conjunction with other factors relevant to the application of Article 8" (para 30).
viii. Mr Pipe submitted, and I accept, that although the Appellant's offence was serious, it was a first offence and the risk of serious harm and reoffending was low. He had a close and loving relationship with his children and his removal would have a considerable detrimental effect on the children. I find that both children are influenced for the better by the presence of their father in their lives, who encourages them and supports them practically and emotionally; he is a figure who is known within L's school as having a positive influence on his children as well as being a role model for the other young children (see letter in A B, at pp 154 and 155). I find the Appellant's presence is a positive influence on his mother-in-law's relationship with her grandchildren and builds family life. I find that cumulatively these factors amount to very compelling circumstances over and above those set out in exception 2.

6. The Judge finds at [38] that it is not proportionate to deport MLS from the United Kingdom.
7. The Secretary of State sought permission to appeal which was granted by another judge of the First-Tier Tribunal on 14 April 2018.

Grounds and submissions

8. The Secretary of States grounds set out his concerns in relation to the decision of the Judge. They are in the following terms:

i. This is the appeal against the decision of the SSHD to deport the appellant, following a four-year prison sentence for drug related crime.
ii. Given the severity of the offence and the sentence imposed the appellant was required to show that there were 'very compelling' circumstances over and above those sited at paragraph 339 and 339A of the Immigration Rules (as encompassed in S 117C(4) & 5) of the 2002 Act).
iii. The FTTJ finds at [37 vii-viii] the Judge finds that there are very compelling reasons over and above the exceptions seemingly on the basis that the appellant's removal would have a "considerable detrimental effect on the children" and his "presence is a positive influence on his children and the relationship between his mother-in-law and the children". As such very compelling circumstances of said to have been established.
iv. While the FTTJ considers that it would be unduly harsh for the children to move to Jamaica the question of undue harshness of separation is posed at [37 vi] it does not appear to be answered. Even if this is answered by the Judge in the appellant's favour is not sufficient for this appeal to succeed.
v. The respondent challenges the conclusion that separation is unduly harsh, if indeed the FTTJ makes this finding, and secondly that there are very compelling circumstances.
vi. The respondent respectfully submits that the FTTJ's reasoning falls significantly short of demonstrating any form of compelling circumstances, let alone to the required standard in this instance. There is for example, no explanation concerning the relationship between the children and grandmother and why the appellant must be present to facilitate this relationship. There is absolutely nothing to suggest that the appellant is the only person who can ensure the relationship continues.
vii. Similarly, the finding that separation would have a considerable detrimental effect appears to be vested in the oral evidence and the social worker's report. The SSHD maintains that there are deficits in the value of that 'expert' evidence, since the author has not witnessed the family interaction over a period of time or engage substantively with the school. The school evidence demonstrated that children did not suffer academically during their father's period of incarceration see [30] and there was nothing from the schools to show that the children misbehaved because of the separation. The FTTJ fails to reconcile the evidence presented. Moreover, it is unclear that the same issues would arise again, that this simply wasn't the misadventure of youth or that their mother, who was training to be a social worker (see [14 iii]), could not assist in the transition. It is apparent that one of the children at least has demonstrated an understanding of her actions and a sincere pledge not to do so again [see 30].
viii. The SSHD submits that the children's reactions have not been demonstrated to be anything but those one would expect when separated from a parent, and cannot be unduly harsh, nor very compelling. Much emphasis is placed by the Judge as to how the children reacted during prison as opposed to considering how they will act in the future given, they have dealt with separation before, have protective factors and family members around them, and there has been a passage of time.
ix. Naturally the children would miss their father, but as found in the NA (Pakistan) [2016] EWCA Civ 662 "the best interests of children certainly carry great weight, as identified by Lord Kerr in HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25, [2013] 1 AC 338 at [145]. Nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children. The desirability of children being with both parents is a commonplace family life. That is not usually a sufficiently compelling circumstances to outweigh the high public interest in deporting foreign criminals." [33].
x. Similarly in FP (Nigeria) v The Secretary of State for the Home Department [2015] EWCA Civ 251 the Court of Appeal commented:

"in my judgement, the determination of the First-Tier Tribunal did not identify, as it should have done, what with the features of the Appellant's case that amounted to compelling reasons, or were exceptional circumstances, justifying the success of his appeal. Indeed, I would go further and state that I have been unable to identify in the determination findings of fact that could properly be categorised as exceptional, or amounting to compelling reasons for him to be allowed to remain in this country, given the seriousness of his repeated criminal conduct. I fully recognise that if the judge's factual findings are well-founded, there will be a really damaging impact on his partner and the children; but that is a common consequence of deportation of a person who has children in this country."

"Deportation will normally be appropriate in cases such as the present, even though the children will be affected and the interests of the children are a primary consideration. In some cases the family may be able to a joint the deportee in the country of his nationality, but that was not explored in this case, and I assume was not a real possibility."

xi. While the FTTJ cites various authorities at [12] these decisions do not consider the best interests of children in the context of criminal deportation, where the public interest is both different and has greater force. It is not apparent that the FTTJ has understood the correct approach to the best interests of the child in a case which involves criminality, and particularly where the relevant question is one of very compelling circumstances existing.
xii. The responsibility for meeting the children's emotional and physical needs will be met by the children's mother - the FTTJ does not find this would not be the case.
xiii. In the relevant assessment the FTTJ minimise the appellant's criminality (by virtue of it being the first offence and the risk of reoffending being low) and fails to engage with the weighty public interest at all in the relevant assessment. The appellant was convicted following a criminal trial of a serious offence. The decision to impose such a sentence is not one the Immigration Tribunal should go behind. Following Valasquez Taylor v Sec State for the Home Department [2015] EWCA Civ 845 and Danso v Secretary of State for the Home Department [2015] EWAC Civ 595 rehabilitation of this kind is unlikely to contribute greatly to the existence of the very compelling circumstances required outweighed the public interest in deportation.
xiv. For all the above reasons, it is submitted that the FTTJ has failed to appreciate the arduous hurdle the appellant has to surmount in this case, and has simply paid lip service to the phrase "very compelling circumstances" with engaging with the relevant jurisprudence as to what this entails, and has erroneously diluted the public interest.

Discussion

9. The determination under challenge has been written by very experienced First-tier Tribunal Judge who has a detailed knowledge and understanding of the relevant legal provisions. The suggestion in the grounds to the contrary has no arguable merit.
10. The Judge spends an appropriate amount of time within the body of the determination recording and discussing the importance of the public interest; noting there is a very strong public interest in the appellants deportation. The Judge clearly notes that the appellant received a sentence of more than 4 years imprisonment and that the relevant immigration rules is paragraph 398(a) and the relevant statutory provisions section 117C(6). The Judge in undertaking the assessment of the merit of the appeal clearly takes into account the existence of the exceptions and asks herself the correct question at [37(vi)] of whether it will be unduly harsh for the family members to remain in the United Kingdom without the appellant. The Judge clearly considered the evidence with the required degree of anxious scrutiny and has given sufficient reasons in support of the findings she makes. The weight to be given to the evidence was a matter for the Judge and any challenge in the grounds to weight attributed is, arguably, no more than disagreement with the Judge's findings on this point.
11. The Judge accepts MLS has committed a serious offence but explains why she considers his deportation will be unduly harsh upon the children. It has not been shown the Judge failed to consider relevant evidence. The finding on this point is in accordance with the definition of this term provided by the Supreme Court in KO (Nigeria) [2018] UKSC 53 at [23].
12. The Court of Appeal have reminded the Upper Tribunal that when assessing whether a judge of the First-Tier Tribunal has made an error of law material to the decision under challenge it must not approach the exercise from the viewpoint of what they would do if deciding the case themselves. Similarly, whilst some may consider decisions to be unduly generous or challenge decisions against deportation orders allowing appeals as a matter of policy, that does not of itself establish arguable legal error.
13. The grounds disagree with the conclusions of the Judge and make statements that are not supported by a reading of the decision as a whole. The Judge does not set out the report of Ms DH verbatim but clearly made reference to both the original report and an updated report in the determination. The conclusions of those reports, which were accepted by the Judge, have to be read as part of the reasoning given by the Judge when considering this challenge.
14. Even if the Judges conclusion was more generous to MLS than other judges may have been or even if very few other judges would make this decision in this way, that is not the relevant test. The question has to be whether the decision to allow the appeal is within the range of reasonable conclusions available to the Judge on the evidence. In this carefully considered and written determination the only conclusion has to be that it is. The Secretary of State fails to establish the decision is so perverse, irrational, or so contrary to the evidence that it cannot stand. Accordingly, despite Mr Mills best efforts, I find the Secretary of State has failed to establish arguable legal error material to the decision to allow the appeal sufficient to warrant the Upper Tribunal interfering in this matter.

Decision

15. There is no material error of law in the Immigration Judge's decision. The determination shall stand.

Anonymity.

16. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 27 December 2018