Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/14751/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 07 February 2019
On 27 August 2019

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

J D
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves child welfare. I find that it is appropriate to continue the order. 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 his 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.

Representation:
For the appellant: Mr C. E. Moll, instructed by Howe & Co. Solicitors
For the respondent: Mr C. Avery, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Upper Tribunal remakes the decision relating to the appellant's appeal against the respondent's decision dated 31 October 2017 to refuse a human rights claim having set aside a decision of the First-tier Tribunal in an earlier decision promulgated on 13 December 2018 (annexed).

2. I am conscious of the length of time that it has taken to promulgate this decision. Unfortunately, it took longer than usual to prepare due to the lengthy history of this case, the complexity of some of the issues, the need to invite further submissions and the pressure of other work.

BACKGROUND

3. The history of the case is relevant to a proper determination of the appeal. The appellant is an Angolan citizen who says that he entered the UK on 11 December 2003. He claimed asylum on 12 December 2003. The application was refused on 10 February 2004 and a subsequent appeal was dismissed on 26 April 2004. His appeal rights became exhausted on 24 August 2004. The appellant remained in the UK without leave.

4. On 06 September 2010 the appellant was convicted under a false name for 'driving a motor vehicle with excess alcohol' for which he was fined and disqualified from driving for 12 months.

5. On 17 January 2012 the appellant was convicted under the same false name of 'threatening to damage or destroy own property so as to endanger life'. On 20 March 2012 he was sentenced to 15 months' imprisonment. The context of the offence was that the appellant made serious threats towards his then partner during an argument. He poured white spirit in their bedroom and then in their children's bedroom and had a lighter in his hand. The sentencing judge made the following comments about the offence:
"My assessment of you is that you behaved as you did to frighten your partner. I do not consider that there was at any time any intention on your part to set fire to this house, or to hurt your partner in that way or for that matter any children that were in the house.
The whole thing got completely out of control. It is quite clear from the statements that [his partner] has now made that she regrets calling the police, although she was right to do so. What she says in her letter is that you have spent long enough in prison and I agree with that.
Although this crosses the custody threshold and was a very frightening episode, it does not seem to me that a sentence in excess of 15 months' imprisonment can be justified. I am not going to burden the probation service by making a community order of any sort. You have been punished enough and I do not think further supervision is going to help you. What will help you is trying to get back on the rails with your family and your children and I know that you are determined to do that.
You made a very serious mistake but you are not a danger to the public and you are not a fire raiser. It is for that reason therefore that for the offence of threatening to cause damage, I impose a sentence of 15 months' imprisonment. I direct that you be given credit for the 253 days that you have already spent in custody. The effect of that and my intention in passing that length of sentence is that you should be released from custody during the course of today and that brings the matter to an end."
Deportation decision (2012)

6. The respondent notified the appellant of his intention to make an automatic deportation order on 20 March 2012. The appellant admitted his correct identity in an ensuing interview. The respondent signed a deportation order on 08 October 2012 pursuant to section 32(5) of the UK Borders Act 2007 ("UKBA 2007") and section 5(1) of the Immigration Act 1971 ("IA 1971").

First-tier Tribunal decision (2013)

7. At the time, the appellant had a right of appeal against the deportation decision. A panel of the First-tier Tribunal (FTTJ Onoufriou and Mrs Jordan (NLM)) allowed the appeal on human rights grounds in a decision promulgated on 06 December 2013. The panel was satisfied that there was substantial evidence to show that the appellant had a family life with his partner and children before going to prison. There was evidence to show that they visited him in prison although the visits eventually ceased. The appellant tried to establish contact with his family when he was released. He said he was prevented from doing so because social services wanted to carry out a risk assessment. At the date of the hearing, the appellant had filed an application to the family court for contact with the children. Although the application was rejected for failure to pay the relevant court fee, the panel was satisfied that he intended to resubmit the application. The panel considered the decision in RS (immigration and family court proceedings) India [2012] UKUT 00218 and allowed the appeal "to a limited extent" in order to enable the appellant to make an application for contact with his children. The panel concluded: "We do not consider it would be in the interests of justice and certainly not in the best interests of his children applying section 55 of the 2009 Act, to deny the appellant the opportunity to resume more meaningful contact with his children."

Upper Tribunal decision (2014)

8. The respondent was granted permission to appeal to the Upper Tribunal. In a decision promulgated on 25 July 2014, Upper Tribunal Judge Conway found that the First-tier Tribunal decision did not involve the making of an error of law. The panel took into account the nature of the offence and the sentencing remarks. It was open to the Tribunal to find that the appellant intended to make a renewed application for contact with his children and that this was a relevant fact in light of RS (India) and the subsequent decision in Mohan v SSHD [2012] EWCA Civ 1363. The Upper Tribunal concluded that it was open to the panel to conclude that Article 8 was engaged pending the conclusion of the intended family proceedings.

Subsequent events

9. The appellant made an application to the family court for contact with his children. On 06 August 2014 the respondent wrote to the appellant's solicitor requesting further information about the appellant's family circumstances and the family court proceedings. His solicitor responded on 22 August 2014 stating that family proceedings were ongoing. The appellant had supervised contact with his children once a month in line with arrangements made by social services and had unlimited non-physical contact with the children. At this stage, it was asserted that he was still in a relationship with the mother of his two older children albeit social services had not yet permitted him to return to the family home.

10. On 17 November 2014 District Judge Hearne adjourned the family court application with liberty to restore. The order stated that if no further application were made by 17 May 2015 then the application would be dismissed without further order. The judge apparently was told that the appellant and the children's mother were trying to resolve the matter through mediation.

11. On 04 December 2014 the respondent wrote to the appellant care of his legal representative stating that he was granted three months' Discretionary Leave to Remain (DLR). The letter stated that leave would be issued on a Biometric Residence Permit (BRP).

12. The respondent says he did not receive an application for a BRP so a reminder was sent on 18 February 2015. On 12 March 2015 the respondent wrote to the appellant inviting further representations because the respondent was aware "that your client's Family court case has concluded."

13. The appellant made further representations in a letter dated 14 April 2015. The letter was brief. It asserted that the appellant was in a new relationship. Their daughter was born on 25 July 2014. No detail was given as to the history of the relationship given that the previous representations made on 22 August 2014 claimed that he was still in a relationship with the mother of his two oldest children, one month after the third child was born to another woman. The letter asserted the family court proceedings had not come to an end because the order made on 17 November 2014 provided for an application to restore the proceedings. A copy of the signed BRP application dated 16 December 2014 was enclosed but no mention was made as to whether it was sent previously. A copy of a letter from the same representative to the Criminal Case Unit in Liverpool, also dated 14 April 2015, attached a completed BRP application and two photographs. This would appear to indicate that the application was only made on 14 April 2015 and not at an earlier stage even though the application form apparently was signed on 16 December 2014.

14. There is no evidence to suggest that a BRP card was issued as evidence of a grant of leave to remain at any stage before a further decision was made in June 2015.

Decision to refuse a human rights claim (2015)

15. On 30 June 2015 the respondent made a decision to refuse a human rights claim. The decision stated: "Although it is noted that you were granted Leave to Entre (sic) (LTE) on 4 December 2014 for a period of 3 months, it is noted that this was to await the outcome of your application to the Family Court. The Tribunal did not determine that the original decision was in any way unlawful or needed to be withdrawn. It therefore remains extant." No new deportation order was signed. The decision letter simply asserted that the appellant's deportation was required by section 32(5) UKBA 2007. The respondent certified the human rights claim under section 94B of the Nationality, Immigration and Asylum Act 2002 ("NIAA 2002").

Decision to refuse a human rights claim (2017)

16. It seems that no further action was taken for over two years until, on 31 October 2017, the respondent withdrew the decision certifying the human rights claim following the Supreme Court decision in Kiarie & Byndloss v SSHD [2017] UKSC 42. He issued a fresh decision to refuse a human rights claim on the same day, which attracted an in-country right of appeal. The wording regarding the deportation order remained the same as the decision made in 2015. The decision is the subject of this appeal.

17. The respondent accepted that the appellant was the father of three British children (A), (B) and (C). He did not accept that the appellant had a genuine and subsisting parental relationship with the two children from his previous relationship (A and B) because "it is known that you do not have any contact with either child". Following the family court hearing on 17 November 2014 a social worker spoke to the children who confirmed that they did not want to have contact with him.

18. In respect of the child by the more recent relationship (C) the respondent noted that the appellant did not live at the same address as the child's mother. The respondent found that there was insufficient evidence to show that he had a genuine and subsisting parental relationship with the child or to show that he was still in a genuine and subsisting relationship with her mother.

19. Nevertheless, in principle, the respondent accepted that it would be 'unduly harsh' for the children to live in the country to which he would be deported. However, it was not accepted that it would be 'unduly harsh' for the children to remain in the UK without the appellant because there was insufficient evidence to show that he had a genuine and subsisting parental relationship with the children and they were looked after by their respective mothers.

20. In the same decision, the respondent refused the application for a Biometric Residence Permit made on 14 April 2015 because the leave granted on 04 December 2014 had expired.

First-tier Tribunal decision (2018)

21. First-tier Tribunal Judge Cary allowed the appeal in a decision promulgated on 25 September 2018. The judge heard evidence from the appellant and his partner (C's mother). By the date of the hearing the respondent accepted that the appellant had a family life with his current partner and their daughter and that he also had some contact with A and B. The judge considered evidence, which indicated that all three children had a strong bond with their father. The appellant had regular contact with the two children from his previous relationship. He lived with the youngest child. The judge concluded that the appellant "plays a significant, active and beneficial role in his daughter's life". The judge concluded that there was no evidence to suggest that the appellant represented an ongoing threat to the public or to his family. The judge took into account the weight to be given to the public interest and the need to deter crime. However, he went on to conclude that it would be unduly harsh for the children to remain in the UK without their father if he were to be deported.

22. The Upper Tribunal set aside the First-tier Tribunal decision for lack of reasoning to justify the finding that it would be 'unduly harsh' for the children to remain in the UK without their father. However, the factual findings remain intact relating to the nature and extent of the appellant's familial relationships in the UK.

LEGAL FRAMEWORK

Legal framework applicable to the first appeal (2013)

23. The deportation order signed on 08 October 2012 formed part of the decision dated 09 October 2012 to make an automatic deportation order under section 32(5) UKBA 2007 with reference to the underlying power to make a deportation order contained in section 5(1) IA 1971.

24. Section 32(5) UKBA 2007 required the Secretary of State to make a deportation order in respect of a foreign criminal who was sentenced to a period of imprisonment of at least 12 months.

25. Section 33(2) (Exception 1) includes where removal in pursuance of the deportation order would breach a person's rights under the European Convention on Human Rights or the Refugee Convention. Section 33(7) makes clear that the application of an exception (a) does not prevent the making of a deportation order and (b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good.

26. The appellant had a right of appeal under section 82(3A) NIAA 2002 against the immigration decision that section 32(5) UKBA 2007 applied. The relevant ground of appeal under section 84(1)(g) was that his removal from the United Kingdom in consequence of the decision would be unlawful under section 6 of the Human Rights Act 1998 ("HRA 1998") as being incompatible with his Convention rights.

27. The Secretary of State's decision was made shortly after the introduction of new immigration rules relating to deportation and Article 8 of the European Convention. The relevant parts of the Statement of Changes to the Immigration Rules HC 194 came into effect on 09 July 2012. Rules 398 to 399A outlined the Secretary of State's policy as to where a fair balance would be struck in cases where a person claims that their deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention. By the time the First-tier Tribunal heard the appeal on 27 November 2013 the Court of Appeal had decided MF (Nigeria) v SSHD [2014] 2 All ER 543 and concluded that the new rules amounted to a 'complete code' to Article 8.

The legal effect of the First-tier decision (2013)

28. In directions sent on 28 June 2019 the Upper Tribunal invited further submissions from the parties as to the legal effect of the First-tier Tribunal decision made in 2013 on (i) the original deportation order; (ii) how it might impact on the scope of this appeal; and (iii) including any other submissions arising.

29. The appellant filed further submissions on 12 July 2019. The Upper Tribunal has no record of the respondent having filed any further submissions. In the absence of further submissions, I have tried to anticipate and to deal with any arguments that might have been put forward by the respondent.

30. Although I note that the First-tier Tribunal in 2013 did not consider the new immigration rules relating to deportation and Article 8 the respondent was unsuccessful in his appeal before the Upper Tribunal. As such, the First-tier Tribunal decision was a final judicial decision.

31. Even though the First-tier Tribunal stated that it allowed the appeal to "a limited extent", in fact, the only ground upon which the appeal could be allowed was that removal in consequence of the immigration decision dated 20 March 2012 was unlawful under section 6 HRA 1998. The First-tier Tribunal made a clear direction under section 87 NIAA 2002 (applicable at the time) for the appellant to be granted leave to remain for three months.

32. Section 5(1) IA 1971 states that where a person is liable to deportation the Secretary of State may make a deportation order against him, "that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom". Section 5(2) states that a deportation order may be revoked at any time by a further order of the Secretary of State.

33. Section 32(6) UKBA 2007 states that the Secretary of State may not revoke a deportation order made under section 32(5) unless (a) he thinks that an exception under section 33 applies; (b) the application for revocation is made while the foreign criminal is outside the United Kingdom; or (c) section 34(4) applies. In respect of timing, section 34(4) states that the Secretary of State may withdraw a decision that section 32(5) applies or revoke a deportation order made in accordance with that section for the purpose of (a) taking action under the Immigration Acts or the Immigration Rules; and (b) subsequently taking a new decision that section 32(5) applies and making a deportation order in accordance with section 32(5).

34. The effect of the First-tier Tribunal decision was that the exception to deportation contained in section 33(2)(a) UKBA 2007 applied at that date even if the First-tier Tribunal only envisaged that a temporary period of leave to remain should be granted. At that stage, it is clear the respondent did not require the appellant to leave the UK pursuant to the deportation order. The Secretary of State gave effect to the Tribunal's decision under the Immigration Acts by granting leave to remain on 04 December 2014 albeit a BRP was never issued as evidence of the fact.

35. It matters not whether the grant of leave was for three months or three years, the act of granting leave to remain was a further order of the Secretary of State for the purpose of section 5(2) IA 1971, which granted leave to remain and no longer required him to leave the United Kingdom for the purpose of section 5(1). In my assessment, the act of granting leave to remain revoked the deportation order signed on 08 October 2012.

36. Section 34(4) UKBA 2007 states that the Secretary of State can revoke a deportation order made in accordance with section 32(5) for the purpose of taking action under the Immigration Acts, which might include making a subsequent decision. However, the wording of section 34(4)(b) states that revocation could be for the purpose of "subsequently taking a new decision that section 32(5) applies and making a deportation order in accordance with section 32(5)" [emphasis added]. The wording suggests that once a deportation order has been revoked a new deportation order needs to be made to accompany any subsequent decision that section 32(5) applies. This is consistent with the requirement contained in section 32(5) itself, which states that the Secretary of State "must make a deportation order" [emphasis added] in respect of a foreign criminal.

37. For these reasons I conclude that the act of giving effect to the First-tier Tribunal decision by granting leave to remain for three months revoked the original deportation order. In order to make a fresh decision that section 32(5) applied the Secretary of State was also required to make a new deportation order.

38. The decision dated 31 October 2017 was made after the changes brought about by the Immigration Act 2014 ("IA 2014"). On the face of it, this was a decision to refuse a human rights claim without having followed the statutory procedure under section 32(5) UKBA 2007. Having revoked the original order by the act of granting leave to remain the decision to refuse a human rights claim did not have the necessary statutory underpinning to be one made in the context of deportation proceedings.

Legal framework applicable to this appeal (2019)

39. A final piece of the complicated puzzle of provisions relating to deportation must be considered. The rules relating to deportation and Article 8 introduced by HC 194 were a precursor to the further amendments made by way of a Statement of Changes to the Immigration Rules HC 532, which came into effect on 28 July 2014 at the same time as the new Part 5A of the NIAA 2002 came into force.

40. I have considered whether section 117C NIAA 2002 may still apply to the appellant in determining this appeal. The appellant comes within the definition of a 'foreign criminal' contained in section 117D(2) because he is not a British citizen and was convicted of an offence for which he was sentenced to a period of imprisonment of at least 12 months.

41. However, the crucial wording is contained in section 117A. Part 5A applies where a court of tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life under Article 8 of the European Convention and as a result would be unlawful under section 6 HRA 1998. In considering the public interest question the court or tribunal must have regard to the considerations listed in section 117B. In "cases concerning deportation of foreign criminals" the court or tribunal must have regard to the considerations in section 117C.

42. "Deportation" is not a general term of art. There is a legal distinction between removal pursuant to a deportation order made under section 5(1) IA 1971 and administrative removal in non-deportation cases under section 10 of the Immigration and Asylum Act 1999 ("IAA 1999"). In this context the wording of section 117A(2)(b) NIAA 2002 has some import. The more stringent public interest considerations contained in section 117C only apply in cases "concerning the deportation" of foreign criminals. Section 117C itself repeatedly uses the legal term "deportation" thereby reinforcing the fact that the provisions only apply to those cases where a decision to refuse a human rights claim is made in the context of an additional deportation decision.

43. The original deportation order was revoked by the respondent's act of granting leave to remain. There is no valid decision that section 32(5) UKBA 2007 applies because the decision was not accompanied by a fresh deportation order as mandated by that section. For these reasons I conclude that the decision to refuse a human rights claim dated 31 October 2017 does not concern the deportation of the appellant as a foreign criminal. The Upper Tribunal is not required by Part 5A NIAA 2002 to have regard to the public interest considerations contained in section 117C although it is obliged to have regard to the considerations contained in section 117B.

FINDINGS AND REASONS

Best interests of the children

44. In assessing the best interests of the children, I have considered the broad principles outlined in ZH (Tanzania) v SSHD [2011] UKSC4, Zoumbas v SSHD [2013] UKSC 74 and EV (Philippines) and others v SSHD [2014] EWCA Civ 874. The best interests of children are a primary consideration although they are not the only consideration.

45. The respondent must have regard to the need to safeguard the welfare of children who are "in the United Kingdom". I take into account the statutory guidance "UKBA Every Child Matters: Change for Children" (November 2009), which gives further detail about the duties owed to children under section 55 of the Borders, Citizenship and Immigration Act 2009 ("BCIA 2009"). In the guidance, the respondent acknowledges the importance of international human rights instruments including the UN Convention on the Rights of the Child (UNCRC). The guidance goes on to confirm: "The UK Border Agency must fulfil the requirements of these instruments in relation to children whilst exercising its functions as expressed in UK domestic legislation and policies." The UNCRC sets out rights including a child's right to survival and development, the right to know and be cared for by his or her parents, the right not to be separated from parents and the enjoyment of the highest attainable standards of living, health and education without discrimination. The UNCRC also recognises the common responsibility of both parents for the upbringing and development of a child.

46. The appellant has three children. A and B are British citizens. They are the appellant's children from his previous relationship. At the date of the hearing A was 13 years old and B was 11 years old. They live with their mother. It is accepted that the appellant now has regular contact with the children. C is also a British citizen. She is the appellant's daughter from his current relationship. At the date of the hearing she was four years old.

47. After having heard from the appellant and his partner, and having considered the independent social work report of Gugu Nare, Judge Cary was satisfied that the appellant had a strong bond with his children. In relation to the youngest child he concluded that the appellant "plays a significant, active and benefits role in his daughter's life" [42].

48. The children have benefited from their father's involvement in their lives since birth. It is in their interests to continue to be brought up by both parents and to benefit from the care and support the appellant provides. The children are British citizens, which is a matter that should be given weight. They are entitled to the benefits and advantages of life in the UK. It is not in their interests to be separated from their father. The evidence of the appellant's current partner indicates that he is the main link between the children. Without his presence the youngest child is unlikely to have much contact with her half-sisters. For these reasons I conclude that it is in the best interests of all three children to be brought up by both parents in the UK.

Article 8(1) (private and family life)

49. The appellant is a 41-year-old national of Angola who has lived in the UK for 15 years. It is likely that he has developed a private life in the UK during that time. He has also developed a family life with his partner and three children. The children are British citizens with whom he has a genuine and subsisting parental relationship. I am satisfied that his removal in consequence of the decision would affect his right to private and family life in a sufficiently grave way as to engage the operation of Article 8(1) of the European Convention.

Article 8(2) (non-deportation)

50. Article 8 of the European Convention protects the right to private and family life. However, it is not an absolute right and can be interfered with by the state in certain circumstances. It is trite law that the state has a right to control immigration and that rules governing the entry and residence of people into the country are "in accordance with the law" for the purpose of Article 8. Any interference with the right to private or family life must be for a legitimate reason and should be reasonable and proportionate.

51. Having concluded, for the technical reasons given above, that the decision being appealed is not one concerning the deportation of a foreign criminal I have considered whether the appellant meets any of the requirements for leave to remain on human rights grounds. The requirements of the immigration rules and the statutory provisions are said to reflect the respondent's position as to where a fair balance is struck for the purpose of Article 8 of the European Convention.

52. The appellant has not been resident in the UK for a period of 20 years, so he does not meet the private life requirement contained in paragraph 276ADE(1)(iii) of the immigration rules. Although it is some time since he lived in Angola, there is no evidence to suggest that he would face 'very significant obstacles' to his integration there for the purpose of paragraph 276ADE(1)(vi). The appellant was born in Angola and has spent most of his life there. It is likely that he will continue to have cultural, linguistic and other ties there. The appellant does not meet the requirements for leave to remain as the parent of a British child contained in Appendix FM of the immigration rules because he is not the sole carer for the children.

53. Part 5A NIAA 2002 applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to private or family life and as a result is unlawful under the Human Rights Act 1998. In considering the 'public interest question' a court or tribunal must have regard to the issues outlined in section 117B in non-deportation cases. The public interest question means the question of whether interference with a person's right to respect for their private or family life is justified under Article 8(2) of the European Convention.

54. Little weight can be placed on any private life or any family life with his partner established while his immigration status was precarious. The appellant's level of English is somewhat unclear. I note that he gave evidence in the First-tier with the assistance of a Portuguese interpreter but other evidence indicates that he speaks fairly good English. He did not need the assistance of an interpreter when speaking with the independent social workers. Although the mother of his oldest two children is of Angolan origin, his current partner is of Ugandan origin. It seems unlikely that she would speak Portuguese. In light of this evidence it is likely that the appellant speaks English at home. The appellant's partner is a social worker. There is nothing to suggest that the appellant would be unable to work to contribute to the family income. The evidence shows that he has obtained a number of qualifications since arriving on the UK which might assist him to find work. The appellant is unlikely to become a burden on taxpayers and would be better able to integrate into society.

55. Although several public interest considerations are listed in section 117B, section 117B(6) is the operative provision for the purpose of this appeal. The provision states that the public interest will not require the person's removal if the person has a genuine and subsisting relationship with a qualifying child and "it would not be reasonable to expect the child to leave the United Kingdom." A 'qualifying child' is defined as a person who is under the age of 18 and who is (i) a British citizen; or (ii) has lived in the UK for a continuous period of at least seven years.

56. In KO (Nigeria) v SSHD [2018] UKSC 53 the Supreme Court found that the assessment of 'reasonableness' is directed to the position of the child without reference to the misconduct of his or her parents although what is reasonable must be considered in the 'real world' context in which the children find themselves.

57. In JG (s 117B(6): "reasonable to leave" UK) Turkey [2019] UKUT 72 the Upper Tribunal rejected the submission that section 117B(6) is only engaged if the children would, as a matter of fact, be expected to leave the UK. It found that the provision requires a court or tribunal to hypothesise that the child in question would leave the United Kingdom and must ask whether it would be reasonable to expect the child to do so.

58. I am satisfied that the appellant has a genuine and subsisting parental relationship with qualifying children. In assessing whether it would be unreasonable to expect the children to leave the UK I take into account the fact that it is in the best interests of the children to remain in the UK in the care of both parents. The best interests of the children are a primary consideration.

59. The real world situation is that the appellant has no leave to remain and is liable to removal. Although the oldest two children have connections to Angola through both parents they were born in the UK and have known no other home. The appellant is no longer in a relationship with their mother. The youngest child only has a tenuous connection to Angola through her father. Angola is likely to be a foreign country to all three children. They would all lose the practical benefits of growing up in the UK that their citizenship brings. Crucially, the respondent accepts that it would be 'unduly harsh' to expect the children to live in Angola. As the Supreme Court in KO (Nigeria) pointed out, this is a more stringent test than the 'reasonableness' test contained in section 117B(6) NIAA 2002. For these reasons, I conclude that it would be unreasonable to expect the children to leave the UK. The appellant satisfies the requirements of section 117B(6). The public interest does not require his removal in such circumstances.

60. I conclude that removal in consequence of the decision to refuse a human rights claim would be disproportionate with reference to Article 8(2) of the European Convention and would therefore be unlawful under section 6 HRA 1998.

Article 8(2) (deportation)

61. If I am wrong in my assessment of the scope of this appeal, I make alternative findings with reference to the framework relating to cases concerning the deportation of foreign criminals.

62. The statute makes clear that deportation of foreign criminals is in the public interest and that the more serious the offence committed the greater is the public interest in deportation. However, the statutory scheme also sets out circumstances in which the public interest in deportation is outweighed because a person meets one of the stated exceptions.

63. The appellant is eligible to argue that he comes within one of the exceptions to deportation outlined in section 117C(5) NIAA 2002. The appellant has a genuine and subsisting relationship with qualifying children. The public interest in deportation is outweighed if the effect of deportation would be 'unduly harsh' on the appellant's children.

64. In NA (Pakistan) v SSHD [2016] WLR(D) 662 the Court of Appeal noted that the inevitable consequence of deportation is for children to be separated from a parent even though it is contrary to their best interests. The Supreme Court in KO (Nigeria) made clear that something more than the usual harsh effect of deportation on a child is needed to reach the elevated threshold of 'unduly harsh' to meet the requirement of section 117C(5) NIAA 2002.

'Unduly harsh'

65. The respondent accepts that it would be unduly harsh to expect the children to live in the country to which the appellant would be deported. The only issue is whether it would be unduly harsh to expect the children to remain in the UK without their father. Given the distance and expense of visiting a country such as Angola it seems unlikely that the children would have many opportunities to visit their father. The most likely consequence is that they would face long term separation with only distant contact by telephone and other forms of modern communication.

66. I have considered the most recent independent social work report prepared by Gugu Nare on 03 September 2018. There is no evidence to suggest that the appellant's family circumstances have changed in any material way since then. The report describes the familial relationships between the appellant, his former partner, his current partner and the children. The report describes normal familial bonds between the appellant and his children. He has a particular bond with his youngest daughter because he is the person who is largely responsible for her daily care. Ms Nare noted that the two oldest children found the breakup of their parents' relationship difficult. This was exacerbated by their subsequent separation from the appellant when he was detained. B found it particularly difficult to the extent that she received counselling at school. The report states that she admitted to contemplating self-harm when access to her father is blocked. A second separation from their father would be more detrimental to their wellbeing. Ms Nare concluded that it would be in the interests of the children to continue to have regular contact with their father.

67. I bear in mind that 'unduly harsh' denotes something more than the usual negative effects of deportation on a family. The evidence largely describes normal family life that would be significantly disrupted by the appellant's deportation. The separation of the children from their father would, unfortunately, be one of the usual negative effects of deportation. Although the evidence is not particularly detailed, it does outline other compassionate circumstances beyond the usual negative effects on children. In particular, the assessment of whether it is unduly harsh on the children must take into account the family history. Ms Nare's report makes clear that A and B have already been deeply affected by the separation of their parents.

68. There is some evidence to suggest that B, in particular, has struggled with her father's absence to a greater degree and to the extent that she had to receive counselling. The fact that she mentioned contemplating self-harm is particularly worrying. Although there is no detailed evidence from a psychologist outlining quite how seriously events have affected her, I am satisfied that this is an additional compelling factor that elevates the harsh effect of deportation to it being unduly harsh in respect of B. Given the vulnerabilities that she already has as a result of the family breakup, a second major event that wrenches her from the contact she has re-established with her father is likely to have very serious and long-lasting detrimental effects on the child. Although the evidence shows that the effect of deportation would be harsh on the other two children it does not go beyond the usual negative effects of deportation. However, the appellant only needs to show that it would be unduly harsh on at least one of his children to meet the requirements of the exception to deportation contained in section 117C(5) NIAA 2002.

69. In the alternative to my central finding, I conclude that the effect of deportation would be 'unduly harsh' on at least one of the children and that the appellant meets the requirement of section 117C(5). His removal in consequence of the decision would be unlawful under section 6 HRA 1998.

'Very compelling circumstances'

70. I turn to consider whether there are 'very compelling circumstances' that might outweigh the public interest in deportation. I bear in mind that the test reflects the strong case needed to outweigh the significant weight that must be placed on the public interest in deportation. Whether there are 'very compelling circumstances' will depend on the circumstances of each case.

71. The courts have repeatedly emphasised that significant weight should be given to the public interest in deportation. However, that is not to say that the weight to be given to the public interest is uniform or monolithic. The more serious the offending behaviour; the greater the weight is placed on the public interest in deportation. The less serious the offending behaviour; the more readily an individual's compassionate or compelling circumstances might outweigh the public interest in deportation. In other words, the assessment under section 117C(6) NIAA 2002 and paragraph 398 of the immigration rules more closely resembles the overall balancing exercise undertaken by the Strasbourg court when assessing whether the interference with a person's private or family life is justified and proportionate under Article 8(2) of the European Convention. After all, that is the stated intention of the statutory scheme.

72. In assessing what weight to place on the public interest considerations I take into account the fact that the appellant has never had leave to remain in the UK save for the brief three-month period granted in 2014. He is liable to removal in any event. The maintenance of an effective system of immigration control is in the public interest. The appellant was convicted of two criminal offences. The first attracted a minor non-custodial sentence and would not be sufficient to define him as a 'foreign criminal. The second was sufficiently serious to justify a custodial sentence of 15 months' imprisonment.

73. The appellant's conviction must be given significant weight. However, it must also be considered in its proper context. The appellant has only been convicted of one offence giving rise to a custodial sentence. The comments made by the sentencing judge made clear that he did not consider the appellant a danger to the community or in fact to his family. The offence was committed in the context of a domestic argument. In sentencing the appellant to 15 months' imprisonment the judge was reflecting the period of time already spent in custody (253 days reflected the half way point when a person would normally be released on licence). It is impossible to know whether the judge would have given him a lesser sentence had the case come before him earlier given the tone of his comments. The judge followed the recommendation made in the pre-sentence report that no further time in custody was required but did not find it necessary to impose an additional community sentence. In short, the sentencing judge dealt with the matter in a pragmatic way given the time already served. The effect was that the appellant was released the same day.

74. Although the pre-sentence report from 2013 indicates that the appellant did not take full responsibility for his actions at the time, by the time Judge Cary heard the case in 2018, the appellant appeared to have a full understanding of the consequences of his actions. The judge noted that the appellant expressed regret and apologised for the offence [15]. Although the judge noted some concern about evidence which indicated that the appellant still has "anger management issues" he was satisfied that there was no meaningful evidence to suggest that the appellant posed a threat to his former or current partner, his children or society at large [41]. There is no evidence of a pattern of offending. There is no evidence to show that the appellant has been convicted of any further offences since the index offence was committed in 2011. The significant period that has elapsed since the offence indicates that there is a low risk of the appellant reoffending.

75. The public interest in deportation reflects society's disapproval of criminal behaviour whether a person presents a risk of reoffending or not. This is a matter that must be taken into account, but it cannot be a monolithic or overriding factor otherwise no one would ever succeed in resisting deportation, especially in cases where the offence is less serious and the evidence indicates that there is a low risk of reoffending.

76. In assessing what weight should be placed on the public interest I also take into account the long history of this case. If there was a pressing social need to remove the appellant one might expect the respondent to act without undue delay. Following the original deportation decision made in 2012 the appeals process took its usual, albeit relatively slow, course of time. The respondent could not be criticised for that. However, after the first human rights decision was made 30 June 2015 the respondent failed to take any action to remove the appellant despite the claim being certified under section 94B NIAA 2002. No further action was taken until the decision was withdrawn and replaced with a fresh decision on 31 October 2017. The respondent's reliance on the original deportation order, which was revoked by the act of granting leave to remain, failed to follow the proper procedure for a valid decision to be made under section 32(5) UKBA 2007. In the meantime, it is likely that the appellant's family life with his partner and children strengthened. This is particularly so in relation to the youngest child, who was born after the first appeal was determined, who lives with the appellant and with whom he is said to have a "strong bond".

77. The appellant's offence was at the lower end of the scale and did not form a pattern of offending behaviour. Nevertheless, if this was a case concerning the deportation of a foreign criminal, the public interest in deportation should be given significant weight. On the other side, I weigh the cumulative effect of the appellant's length of residence (albeit little weight is placed on it with reference to his private life), the length and depth of his family life during the long period in which proceedings to remove him have been pending and the fact that it would have an unduly harsh effect on one child and a harsh effect on the other two, whose best interests are to be brought up by both parents in the UK.

78. The provisions contained in the statutory scheme are intended to be compliant with a proper application of Article 8 of the European Convention. After having conducted a holistic assessment of where a fair balance should be struck between the undoubted weight that must be placed on the public interest in deportation and the individual circumstances of this case, I conclude that the cumulative effect of the appellant's circumstances amount to 'very compelling circumstances' that outweigh the public interest in deportation.

79. In the alternative to my central finding, I conclude that the appellant meets the requirements of the exception to deportation contained in section 117C(6) and that his removal in consequence of the decision would be unlawful under section 6 HRA 1998.

DECISION

The appeal is ALLOWED on human rights grounds

Signed Date 21 August 2019
Upper Tribunal Judge Canavan

ANNEX

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/14751/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 November 2018

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Before

THE HONOURABLE LORD MATTHEWS
(SITTING AS AN UPPER TRIBUNAL JUDGE)
UPPER TRIBUNAL JUDGE CANAVAN

Between

the Secretary of State for the Home Department
Appellant
and

J D
(ANONYMITY DIRECTION made)
Respondent

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves child welfare issues. We find that it is appropriate to continue the order. 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 his 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.

Representation:
For the Appellant: Mr N Bramble, Home Office Presenting Officer
For the Respondent: Ms N Nnamani, Counsel instructed by Howe & Co Solicitors

DECISION AND REASONS

1. This is an appeal by the Secretary of State who we shall continue to call "the respondent" against a decision of First-tier Tribunal Judge Cary promulgated on 25 September 2018 in which the First-tier Tribunal upheld an appeal by the appellant, a citizen of Angola, against a deportation order. The appeal was allowed broadly on the basis that the appellant was exercising contact with two children and lived with a partner and another child and that it would be unduly harsh for these children if the appellant were deported.

2. We need not go into the full history of the case which is set out fully in the Determination and Reasons of the First-tier Tribunal. It is to be noted however that a previous Tribunal dealt with a deportation order on the basis of the same offence in 2013. The First-tier Tribunal on that occasion allowed the appellant's appeal to a limited extent because he was in the process of approaching the Family Court for contact orders in respect of two of the children. That decision was appealed to the Upper Tribunal by the Secretary of State and the appeal was refused. The implications of that are not entirely clear, either as a matter of law or as a matter of fairness, and that is a matter which we expect will have to be addressed. Nonetheless, the case came before us for a decision as to whether there was an error of law in the decision of the First-tier Tribunal.

3. The Home Office Presenting Officer, Mr Bramble, made a number of arguments, but the principal argument as far as we can see is related to paragraph 43 of the decision where the judge said, "I consider it would be unduly harsh for any of the Appellant's children to remain in the United Kingdom without him, in view of the active and beneficial role he plays in their respective lives." Put shortly, Mr Bramble submitted that that sentence alone was insufficient to allow the reader to know what the reasons were for the finding that it would be unduly harsh for the appellant to be deported and the children to remain here.

4. In reply, Ms Nnamani submitted that the decision had to be read as a whole and referred us to an independent social work report which set out the effects of the appellant's proposed deportation on the children. That social work report is referred to at paragraph 42 of the decision but it is not clear what aspects of it were accepted by the First-tier Tribunal except that the judge accepted that both children were benefitting from contact with the appellant, that the two children had a firm bond with him and wished to have ongoing contact, which must be for their benefit, and it was equally clear that the appellant had a strong bond with the other child, who is a younger child and with whom he lives.

5. Having considered the decision as a whole, we are not satisfied that it can be said that the reader could work out what the reasons were why the high test of undue harshness was thought to have been met and it seems to us that the decision requires to be set aside. The parties were agreed that if we set it aside it would be appropriate for it to be remade in the Upper Tribunal, so the case will be listed for a hearing in this Tribunal before any panel. We would expect that at that stage parties would be in a position, which understandably they tell us they are not in at the moment to discuss the implications of the previous Tribunal's decision which was not successfully appealed. We have decided that it would be appropriate that the findings of primary fact made by the First-tier Tribunal should be maintained. The parties are of course at liberty, subject to appropriate directions and appropriate applications, to submit any further evidence which they think appropriate in due course.

Notice of Decision

6. The First-tier Tribunal decision is set aside and the case will be listed for rehearing.

Directions

(1) Any further documents or up to date evidence to be filed at least fourteen days before the date of the next hearing.

(2) The parties shall be ready to argue the issue of proportionality. The appellant succeeded in an earlier deportation appeal on human rights grounds with reference to the immigration rules in place on 10 October 2012. The respondent remade the decision based on the same index offence, and without the appellant having reoffended, with reference to the more stringent test outlined in the immigration rules in place on 18 June 2015.

LORD MATTHEWS
Sitting as an Upper Tribunal Judge
(Immigration and Asylum Chamber)

Date: 13 December 2018