Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/18108/2019

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On Wednesday 13 July 2022
On Thursday 18 August 2022

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MR IKRAM UL HAQ
Appellant
-and-

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Dingley, Counsel instructed on a direct access basis
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS
FACTUAL AND PROCEDURAL BACKGROUND
1. By a decision promulgated on 12 February 2020, First-tier Tribunal Judge S D Lloyd dismissed the Appellant’s appeal against the Respondent’s decision dated 31 October 2019 refusing his human rights claim. That refusal was in the context of a decision to maintain the deportation of the Appellant to Pakistan in consequence of a criminal conviction dated April 2019. The Appellant was convicted of an offence of sexual grooming of a person who he believed to be a young girl. In fact, the person with whom he made contact was a decoy profile. The Appellant was sentenced to a term of twenty months in prison. He was also made the subject of an indefinite Sexual Harm Prevention Order and placed on the Sexual Offences Register indefinitely. The relevance of that latter part of the sentence is that the Appellant’s contact with his own children must remain supervised by other adults.
2. The Appellant came to the UK lawfully in 2012 with his young son as the dependent of his wife. The couple have another child born in the UK. The children are now aged ten and seven years. Although the Appellant’s wife is originally from Pakistan and still has family living there, she and the children are now all British citizens. The Appellant and his wife are estranged but retain regular and very frequent contact so that he can maintain his relationship with his children who are now aged ten and eight. The eldest child ([I]) is diagnosed as being on the autistic spectrum. The children live with their mother.
3. The Appellant appealed the decision of Judge Lloyd on the basis that the Judge had not properly applied the law in relation to the impact of deportation on the Appellant’s wife and children. Permission to appeal the First-tier Tribunal decision was refused by First-tier Tribunal Judge Grant-Hutchinson on 1 April 2020. Permission was however granted by Upper Tribunal Judge Finch on 6 July 2020. She concluded that the Judge had failed properly to assess whether the impact of the Appellant’s deportation would be unduly harsh for his wife and children.
4. The Respondent subsequently conceded that the First-tier Tribunal Judge had erred as asserted. It was accepted that Judge Lloyd’s decision should be set aside and re-made. By a decision dated 19 November 2020, Upper Tribunal Judge Gleeson set aside the First-tier Tribunal decision. She did so without an oral hearing. Her decision in that regard preceded the judgment of Mr Justice Fordham in Joint Council for the Welfare of Immigrants v The President of UTIAC [2020] EWHC 3103 (Admin). By his judgment, Fordham J held that the President’s Practice Direction in relation to the making of decisions on the paper during the Covid-19 pandemic was unlawful for creating an “overall paper norm”. However, neither party in this case challenged the error of law decision on the basis that it should not have been made on the papers (understandably since the Appellant sought the outcome which was thereby achieved).
5. The appeal came back before Judge Gleeson on 11 March 2021 in order that the decision could be re-made. The Appellant did not attend and was not represented. Judge Gleeson re-made the decision dismissing the appeal. She accepted that the Appellant’s wife and children could not be required to go to Pakistan with the Appellant but did not accept that it would be unduly harsh for them to remain in the UK without him. She found that there were no very compelling circumstances above the two exceptions which were not met in this case. She therefore dismissed the appeal by decision dated 24 March 2021.
6. The Appellant applied for permission to appeal Judge Gleeson’s decision as he said that he had not been effectively served with the notice of hearing and therefore had no opportunity to prosecute his appeal.
7. By a decision dated 16 August 2021, Judge Gleeson refused permission to appeal. She did not accept that there was good reason for the application for permission to appeal being out of time and refused permission to appeal on that basis. She also did not accept that the second appeals test was met. She refused to set aside her decision, noting that the Appellant had not made an application to do so. She refused to do so in any event as she was not satisfied in relation to the evidence about change of address. She also noted the Appellant’s failure to comply with directions regarding the filing of further evidence.
8. The Appellant applied to the Court of Appeal for permission to appeal. Permission was granted by Lady Justice Andrews on 14 December 2021. By a consent order dated 11 February 2022, Lord Justice Moylan ordered that the appeal be allowed to the extent of quashing Judge Gleeson’s decisions dated 24 March 2021 and 16 August 2021 and ordering that the appeal be considered de novo by a different Judge of the Upper Tribunal. This followed the Respondent’s concession. The impact of the concession is that the decision of the First-tier Tribunal remains set aside following the Respondent’s concession that this contained an error of law. The Upper Tribunal is therefore required to re-make the decision on the appeal.
9. On 6 June 2022, the Upper Tribunal sent directions to the parties ordering that the appeal be listed for a one-day hearing not before 11 July 2022 and that bundles should be lodged no later than 14 days before the date fixed for hearing. A bundle and skeleton argument were filed by the Appellant on 15 June 2022. The Respondent provided a skeleton argument on 11 July 2022.
LEGAL FRAMEWORK AND ISSUES
10. In order to succeed in his appeal, the Appellant must either fulfil the exceptions to deportation set out in the Immigration Rules (“the Rules”) or demonstrate that there are very compelling circumstances over and above those exceptions. That test and the exceptions in the Rules are essentially the same in content as the exceptions set out in section 117C Nationality, Immigration and Asylum Act 2002 (“Section 117C”) and I therefore set out those exceptions by reference to that section.
11. Section 117C provides as follows so far as material:
“117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
…”
12. There can be no dispute that Section 117C applies to the Appellant. He has been sentenced to a term of imprisonment of over twelve months. Although Section 117C (6) on its face does not apply to the Appellant as he was not sentenced to at least four years, the Court of Appeal in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662 at [24] to 27] of its judgment held that this applied equally to “medium offenders who fall outside Exceptions 1 and 2”. This means that, even if the Appellant does not meet Exceptions 1 and 2, I am still required to consider whether “there are very compelling circumstances over and above” those exceptions in the event that I find that the exceptions are not met. In order to conduct that exercise I would need also to consider the extent to which the Appellant meets or does not meet the exceptions.
13. The only ground of appeal before me is that the refusal of the Appellant’s human rights claim breaches section 6 Human Rights Act 1998 on the basis that it is a disproportionate interference with the private and family life of the Appellant and others impacted by the decision, in particular his wife and children.
14. As confirmed by the Court of Appeal in HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176 (“HA (Iraq)”), whereas, when considering the position within Exceptions 1 and 2, there is no room for balancing the interference with the Article 8 rights of the Appellant and others affected by the decision against the circumstances of the offending, the position is different under Section 117C (6). If I reach that stage, I would be required to balance the impact of deportation against the public interest in the Appellant’s deportation.
15. I note at this juncture that the judgment of the Supreme Court on the Respondent’s appeal in HA (Iraq) was handed down between the hearing of this appeal and my decision ([2022] UKSC 22). I considered carefully whether I needed to seek further submissions following this event but decided that it was neither necessary nor appropriate. The Supreme Court rejected the Respondent’s appeal in HA (Iraq) and the conjoined cases. The Court of Appeal’s judgment therefore stands. There was in any event little dispute about the legal framework. The dispute between the parties is as to the application of the principles to the facts of this case. For the avoidance of doubt, however, I have firmly in mind the Supreme Court’s conclusion that whether the impact of deportation on, in particular, a child is unduly harsh does not involve any notional comparator or baseline of “due harshness” (upholding the judgment of the Court of Appeal).
16. I also have in mind however what is meant by undue harshness. The Supreme Court in HA (Iraq) expressly approved what was said by this Tribunal about the test in MK (Sierra Leone) v Secretary of State for the Home Department [2015] INLR 563 (“MK (Sierra Leone)”) (see citation at [21] of the Supreme Court’s judgment) as follows:
“By way of self-direction, we are mindful that ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. 'Harsh' in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.”
17. The central focus of the Appellant’s case is the impact of his deportation for his children and to a lesser extent his wife. It is therefore his case that he meets Exception 2. He also submits that he meets Exception 1. Although this is raised in Mr Dingley’s skeleton argument, it was not pressed in oral submissions, but I consider that issue also below.
EVIDENCE
18. The evidence on which the Appellant relied at the hearing before me was confined to that within the supplementary bundle filed on 15 June 2022 (referred to as [ABS/xx]). However, I have also had regard to the documentary evidence filed by the Appellant previously ([AB/xx]) and to evidence in the Respondent’s bundle before the First-tier Tribunal ([RB/xx]). I refer only to the evidence which is relevant to the issues which I have to consider but I have read all the evidence.
19. Oral evidence was given by the Appellant via an Urdu interpreter. He and the interpreter confirmed that they could understand each other. I was satisfied that the Appellant was able to give his evidence without difficulty or constraint. The Appellant adopted his written statement dated 30 May 2022 ([ABS/1-5]).
20. Oral evidence was also given by the Appellant’s wife, Ms Bibi. She gave her evidence in English. Again, I am satisfied that she was able to do so without difficulty. Ms Bibi adopted her written statement dated 31 May 2022 ([ABS/6-10]). Both the Appellant and Ms Bibi were cross-examined.
21. In addition to their witness statements, the Appellant’s supplementary bundle contains an “Independent Social Work Assessment” dated 24 April 2022 (“the Social Worker’s Report”) ([ABS/11-44]). The Social Worker’s Report was written by Ms Dawn Griffiths. Ms Griffiths was also called to give oral evidence and was cross-examined.
22. As with the documentary evidence, I refer only to the oral evidence relevant to the issues I have to decide.
23. The Appellant and his wife both confirmed that their marriage has broken down, but they remain on good terms so that the Appellant can retain contact with his children. He is in frequent and regular face-to-face contact with them. It is said by the Appellant that his children are “dependent upon [him]”. However, the evidence is very clearly that Ms Bibi is their primary carer.
24. Both the Appellant and his wife confirmed that their eldest child, [I], has been diagnosed as being on the autistic spectrum. I come to the evidence about that condition below. However, both confirmed that he receives no special assistance with his schooling. The Appellant said that he did not want [I] to feel different to other children. That is inconsistent with the Appellant’s witness statement which asserts that [I] “gets special assistance at school and is involved with Special Educational Needs and Disability support and has a Care Plan” ([6] at [ABS/2]). I reject the Appellant’s evidence in this regard. It was clear from his oral evidence that it is his wife who deals with the school, and I therefore prefer her evidence.
25. Ms Bibi said that [I] was at first receiving one to one therapy and then some support with his language and speech but he is now “independent study wise”. She said that it was “more about his behaviour”. She described him as “demanding” and “aggressive”. As Mr Melvin pointed out, there is no evidence from the school about his behavioural difficulties. Ms Bibi said that this is because she deals with these difficulties in oral communications with [I]’s teachers. However, she also said that [I]’s achievements on an educational level are “almost” in line with other children. [I] is “not good in English” but is good at mathematics and science.
26. [I]’s diagnosis was made in 2016. The Appellant said that there were no documents in relation to treatment since then as the doctors had said that if anything happened, they would contact the family and otherwise [I] should be “kept happy”. I was not clear however whether that evidence related only to [I]’s autism or also an eye condition which had been identified as the Appellant said that the doctors had said that [I]’s “age was not right for an operation”.
27. The Appellant says that his youngest child, his daughter [R] is “a real ‘daddy’s girl’”. He says in his statement that Ms Bibi has struggled to develop a good relationship with [R] because she has to give more attention to [I]. That may be understandable.
28. Both children have been made aware of the Appellant’s appeal and possible deportation. They were told gradually at some time before Ms Griffiths’ visit.
29. The Appellant’s brother, Ihsan Ul Haq Malik, has given support to the family when the Appellant was in prison and since. Mr Malik has not provided a supplementary witness statement and was not called to give evidence. I accept however that he has provided such assistance as was confirmed by both the Appellant and Ms Bibi. Mr Malik provided a letter of support for the First-tier Tribunal hearing which appears at [AB/91].
30. The Appellant says that Mr Malik is unable consistently to provide support for the Appellant’s children however as he has his own children (aged eight and seven). The Appellant says in his statement that he “regularly help[s] [his] brother with caring for his children as he works as a teacher and private tutor”. That is not confirmed by any evidence from Mr Malik. In fact, quite the contrary. Although there is no recent statement from Mr Malik, he told Ms Griffiths (the social worker) that the Appellant accompanies him when he goes out with the children and that the Appellant does household tasks when he and the children are not at home ([19.8] and [19.9] of the Social Worker’s Report at [ABS/24-25]).
31. In any event, it cannot be the case that the Appellant is left alone with his brother’s children. Although the Appellant downplayed the conditions under which he can have contact with children (including his own), saying that there were no such conditions following the ending of his probation, Ms Bibi confirmed that the Appellant is unable to have unsupervised contact with any child including his own. The impact of this is that, even when he takes his children out or is in the home with them, there must always be another adult present.
32. In re-examination, the Appellant accepted that his wife is always there when he visits the children and if she is not there, Mr Malik can be called and will come. Ms Bibi said that the Appellant is “never alone in the room” with the children. There is always someone there. Similarly, when he takes the children out, either Mr Malik or another friend accompanies them. The Appellant is not allowed to take the children to school or pick them up. That is contrary to the Appellant’s witness statement which asserts that he picks them up from school regularly ([14] at [ABS/4]).
33. The Appellant was obviously separated from his family whilst in prison. The Appellant’s oral evidence as to the period prior to his sentence was inconsistent with other evidence. The Appellant said when asked that he had “stayed home” until April 2019. He was not allowed to stay again after his conviction. He said that he was allowed back home after he was bailed following the arrest. However, the OASys report dated 10 January 2020 ([AB/97-147]) reports that the Appellant was not living with his family prior to the conviction. He had been living since September 2018 in a separate property (for which it appears that Ms Bibi and Mr Malik were paying the rent). That position is confirmed by Ms Bibi’s statement dated 30 January 2020 ([AB/12]). She confirms that the Appellant lived with the family until his arrest on 26 August 2018. He was not permitted to do so after his arrest (see also [12] of her statement dated 2 June 2019 at [RB/12]). The Appellant has not therefore lived with his children for about four years.
34. The oral evidence about the contact which the Appellant was able to have with his children following his release was also not consistent. The Appellant said that he was permitted contact on the same day that he was released and confirmed that was from December 2019. Ms Bibi said however that the Appellant was not permitted contact until after about two weeks from his release, after a meeting with social workers. That would have been in about January 2020. I prefer Ms Bibi’s evidence. I very much doubt given the involvement of Social Services that the Appellant would have been permitted immediate contact before arrangements were made to ensure supervision of those contacts.
35. Ms Bibi said that the time when the Appellant was in prison was a “nightmare”. She had no support and no money because the arrest had been sudden. She was emotionally overwhelmed. The family lost their home as she could not afford to pay the rent. Mr Malik provided assistance, but this was short-term. It was an experience she did not want to repeat. Social services did provide some assistance when the family was made homeless and with [I].
36. Whilst the Appellant was in prison, Ms Bibi said that the children had continuing contact via telephone. The Appellant said that he did not want the children to visit and had no contact other than by letter. I do not view this as an inconsistency however as Ms Bibi said that the contact was enabled by her putting the phone on speaker. The children were made aware that their father was in prison.
37. As noted above, since his release from prison and from about two weeks after his release, the Appellant was able to have face-to-face contact with his children. At first, following the meeting with Social Services, the Appellant was able to have contact on Saturdays and Sundays. Social Services agreed however that contact could be worked out between the parties.
38. The witness statements of the Appellant and Ms Bibi are not clear as to how often the Appellant now visits the children or for how long. The impression given is that contact is frequent. When Ms Bibi was asked about this, she said that contact was varied. For example, in the previous week, the Appellant had visited more because of Eid and Ramadan. He had come every day. He has contact “almost every day” and phones if he cannot visit. He “buys stuff”. He comes in “three to four times, two times”. It remains the case however that the Appellant cannot live with his family or be left alone with his children and that is likely to remain the position for the foreseeable future.
39. At [12] of his statement, the Appellant says that he plays “a vital role” in his children’s life as a “father and male role model”. He says that Ms Bibi “cannot look after both children because of the challenges and difficulties of caring for a child with severe autism and the inherent difficulties that poses”. He says that he is “a fundamental part of the care and support required for his son” and that he “truly understand[s] the difficulties he has which has allowed [them] to develop a special bond”. Rather oddly, he goes on to say that Ms Bibi “has been unable to properly grasp this”. I say “oddly” because Ms Bibi herself appears to accept that the Appellant has a close, supportive relationship with his children.
40. Ms Bibi says in her statement that she had to travel to Pakistan with the children on 18 August 2021 for her father’s funeral. She had planned to go for a fortnight, but Pakistan remained on the “red list” due to the Covid-19 pandemic. She could not afford to pay for quarantine and therefore had to remain in Pakistan for longer than expected. She returned to the UK on 1 October 2021. Ms Bibi’s statement in that regard is specific as to dates. Although I accept the Appellant’s oral evidence that the visit was not for as long as two months, it was nonetheless a period of well over one month. The Appellant said that he retained contact via video calls. When Ms Bibi was asked about the impact which this separation had on the children, she said that they wanted to come back. However, her evidence was that this was due to the extreme weather and that [I] became ill with a temperature (and he now has a skin problem). He was also unhappy as she did not have time to spend with him.
41. In terms of financial assistance, Ms Bibi works part-time as a “discharge coordinator” for a hospital and is in receipt of universal credit. She said that she had not sought any additional support due to [I]’s disability. Ms Bibi is a qualified social worker. She completed her degree in 2021. She said that she is unable to work in that occupation at the moment because of the time which she needs to give her son. Her current job allows her to work flexible hours. She works sometimes from eight to four but not every week. She sometimes works for more than twenty hours but rarely and often less. She had not worked for about ten days. She said that [I] “gets stressed if [she] work[s]”. She has no support. During the school holidays, she is unable to leave the children with anyone and therefore cannot work.
42. Prior to his conviction, the Appellant worked two jobs, as a full-time care worker and part-time taxi driver. Notwithstanding the hours he worked, he said that he was still able to spend time with the children. He had to work long hours as Ms Bibi was studying, and he had to pay all the household expenses. The Appellant now works as a newspaper delivery driver earning £800-900 per week. He says that his family is “heavily reliant on [him] from a financial perspective” ([11] at [ABS/4]). Ms Bibi said that the Appellant provides some financial assistance which varies depending on the family’s needs. For example, the Appellant had given her £500 the previous week so she could pay for Eid celebrations. However, she said that her rent is paid for by universal credit.
43. The Appellant says that he would be unable to continue to support his family from Pakistan. At [15] of his statement, he says that finding a job in Pakistan would be “extremely difficult and [he does] not have any connections or recent experience to rely upon”. He says that “without parental support or any assets readjusting to life there will be impossible”.
44. It transpired from the Appellant’s oral evidence, however, that he still has relatives in Pakistan. He has visited Pakistan since he came to the UK in 2012 (two to three times for two to three weeks each time). When asked how he would know that he could not find work in Pakistan, he said that he had spoken to his mother who said it was a “very bad situation” and that he gained his information from when he watched the news. He then said in very general terms that things change everywhere in ten years and that neighbours and friends would have changed.
45. When asked why he said in his statement that he had no connections in Pakistan when he admitted that he has a mother there, he said that she was married for a second time, and he did not have much connection with her (having said that his information came from contact with her). He later admitted in answer to a question which I asked about his family that he also has a brother living there. He also accepted in oral evidence that he would be able to get a job in Pakistan but that it “would not pay enough”.
46. I turn then to the Social Worker’s Report. Ms Griffiths has a degree in social work. She has worked permanently for a local authority for “several years” and now works as an agency social worker and independent social worker. I accept that she is suitably qualified to provide an opinion. The Social Worker’s Report appears at [ABS/11-44]. It contains the appropriate self-direction in relation to her duty as an expert. The report was carried out following a two-hour visit as well as telephone and e-mail contact. During the visit, Ms Griffiths spoke separately to Ms Bibi, to the children with Ms Bibi and then with Mr Malik for fifteen minutes and to the Appellant for thirty minutes.
47. Ms Griffiths was asked to complete an independent social work assessment and, it appears from the report, was asked a number of specific questions. I do not have the letter of instruction which she was sent. She was provided with documents relating to the appeal in this Tribunal, and witness statements of the Appellant, Ms Bibi and Mr Malik. There was some discussion about whether she had seen the most recent witness statements of the Appellant and Ms Bibi as those post-date the Social Worker’s Report by over one month but I was assured that she had seen those before they were signed.
48. Ms Griffiths says that she has “concerns” about how Ms Bibi would cope with [I] in particular, given his hyperactivity. She was able to observe the difficulties in calming [I] during her visit. Ms Bibi accepted that she finds it difficult at times to cope because [I] would not listen to her. She relies on the Appellant to “instil rules”.
49. Ms Griffiths refers to [I]’s diagnosis with “high-functioning autism spectrum disorder” and to [I]’s “increased care needs”. However, it became obvious during cross-examination that Ms Griffiths’ knowledge about the extent of [I]’s diagnosis and needs was limited to what she was told by his parents. She had not approached the school to find out what support [I] was given there. By way of example, she referred at one point to [I] having “a diagnosis of learning difficulties”. This appeared to be because [I] is registered with SEND. That is however contrary to Ms Bibi’s evidence that [I] is almost on a par educationally with other children. Ms Griffiths accepted that she had not seen any evidence about the diagnosis or [I]’s care plan nor had she asked for or been given any evidence from the school about any support provided to [I].
50. As Mr Melvin pointed out, [I]’s diagnosis was some five to six years ago. Ms Griffiths’ answer that a child with such diagnosis would be registered until the age of twenty-five years and would be reviewed every year did not satisfy me that she had sufficient information about [I]’s condition now. She admitted that she would not see the review as it would be with the school. She had not asked the school about any care plan. She said that [I] would be receiving one to one care which was contrary to the evidence given by Ms Bibi and the Appellant.
51. Ms Griffiths had a discussion with Ms Barber who is the “Deputy Safeguarding Lead” at the school which both [I] and [R] attend. That was however in relation to any safeguarding concerns and Ms Griffiths made no enquiry as to [I]’s care needs. The conversation is reported at [20.1] to [20.3] of the report. It is notable that the emergency contacts/next of kin are recorded as Ms Bibi and Mr Malik although perhaps unsurprising since the Appellant would not be permitted to attend the school alone if called.
52. This brings me on to a further limitation with Ms Griffiths’ evidence. She was apparently made aware that the Appellant is not permitted unsupervised contact with any child, including his own children. She refers to it at [19.7] of her report in relation to evidence from Mr Malik. However, when referring to the support provided by the Appellant to his children, there is no reference to the fact that, for example, when taking [I] to badminton, he cannot go alone with him ([12.3]). It is unclear from the Social Worker’s Report what would be the impact of this constant need for adult supervision on the relationship between father and children, particularly as the children grow older and realise that this is a different situation from that which other children enjoy.
53. Ms Griffiths “support[s] the view” of Ms Bibi about the impact which the Appellant’s deportation would have on [I] and [R]. I accept that Ms Bibi is of course a social worker and could provide an opinion but is of course not independent. Ms Griffiths expresses the view that “any changes to the family structure and circumstances could hurt [I]’s growth, development and in particular his mental health”. She accepted in her oral evidence that she had not seen any medical document regarding [I]’s condition. She does not appear to have considered whether there was any evidence about the impact which the Appellant’s imprisonment had on [I] (or indeed [R]). When she was asked about the impact of the separation of the children from their father during the visit to Pakistan, she said that she “did not need to know”. She was concerned with their care and support and interaction with their father. She “did not need to ask questions. That was not part of the assessment”.
54. Mr Melvin put to Ms Griffiths that she had relied solely on what the children’s parents had told her about the relationship to which she replied “the parents are the experts because they are looking after them 24/7”. That appeared to me to be an admission that Ms Griffiths had taken at face value what she was told about the relationship. That in turn casts doubt on the opinion provided at [20.15] that if the Appellant were deported, [I] would “need intervention from outside agencies such as Children and Adolescent Mental Health Services (CAMHS)”. There is no suggestion that such intervention was needed when the Appellant was in prison – a factor which Ms Griffiths has failed to consider as Mr Melvin pointed out.
55. I accept that Ms Griffiths was able to observe the children in their home environment and with their mother and father. As I indicate above, however, her observations about the relationship particularly between the children and their father can be given less weight because they take no account of the fact that the children cannot be looked after alone by their father.
56. Although the report provides limited comment on Ms Griffiths’ observation of the children’s relationship with their father, she did say something about this in her oral evidence. It was suggested by her however that when the Appellant arrived, [I] had gone with his father and “went off to talk”. She also mentions the Appellant “sitting in [I]’s bedroom looking at maps” ([20.12]) and [I] going off with the Appellant to his bedroom ([20.20]). That evidence contrasts with Ms Bibi’s evidence that the children are never left alone with their father and that the Appellant is always accompanied by either her or Mr Malik. I accept Ms Bibi’s consistent evidence in this regard. I also record that when I asked Ms Griffiths to clarify whether she was aware that the Appellant had to be supervised in his contact with his children she confirmed that he was supervised at all times.
57. That evidence also casts doubt on some of what Ms Griffiths assumes would be the impact of the Appellant’s deportation. Ms Griffiths says for example at [20.17] of her report that Ms Bibi said that she would not be able to work if the Appellant were deported and could no longer carry out his parental role. It is however clear from Ms Bibi’s evidence that the Appellant’s role cannot be to look after the children on his own and as a result Ms Bibi can only work part-time now. That will remain the position if the Appellant remains in the UK. Ms Griffiths’ opinions in relation to the position if Ms Bibi were unable to care for the children due to ill-health is speculative in the extreme and, in any event, again ignores that the Appellant is currently unable to look after the children alone.
58. I accept as Ms Griffiths says that the Appellant continues to play a parental role in the children’s lives and provides some emotional and financial support. The consistent evidence is that the children have a good relationship and a bond with their father. As a child on the autistic spectrum, I also accept that [I] is likely to find any disruption to his routine more difficult (as both parents’ evidence also confirmed). I can accept that the children’s best interests are to have both parents in their lives and for the children to remain in the UK
59. However, I can give little weight to Ms Griffiths’ opinions where those are based on facts which diverge from other evidence. She has failed properly to investigate or take account of the factual reality when providing her opinions and conclusions. All in all, and in spite of her professional experience and qualifications, given her reliance on the Appellant and Ms Bibi as the only source of her opinion about the impact of the Appellant’s deportation on the children and the limitations of her evidence as set out above, I can give little weight to her evidence.
60. In terms of the other documentary evidence relating to the children, the assessment of [I]’s condition appears at [AB/80-82]. That document prepared by Ms Hannah Brooks and Ms Chelsea Barnes, Educational Psychologists with Slough Borough Council, is dated 17 October 2016. It is not itself the diagnosis of autism spectrum disorder but is confirmation of it.
61. The report indicates that in spite of “difficulties following routines and engaging appropriately with others” observed whilst [I] was at nursery, his class teacher in reception class at primary school had “no specific concerns regarding [I]’s progress and development”. He was meeting “expected levels for literacy and numeracy”, was “socially engaging with his peers” and was “happy and settled”. He could follow instructions and paid attention to his teachers. There was some concern regarding the eyesight in one of [I]’s eyes (consistent with the Appellant’s evidence about a problem being noted). His “expressive language was not always clear” and he “on occasion needed additional reassurance that he had understood an instruction”. Referral to an optician was to be explored as well as language and speech therapy (again consistent with the Appellant’s and Ms Bibi’s evidence). The summary of the assessment bears setting out in full given the focus of [I]’s condition in this appeal:
“[I] is a much loved member of [name of class]. He has settled in well; confidently navigating the Reception learning environment, responding to adult led instructions and appearing happy. He has been observed to play and interact appropriately with his peers and is currently achieving at the expected academic level for his age. [I] makes best use of the Reception learning environment and responds well to visuals, praise and modelled examples. [I]’s use of language should be monitored and he would benefit from participating in a small speech and language group with a focus on expressive language skills. He seems to have some sensory needs with regards to oral stimulation and is likely to benefit from access to a chewy key ring. Overall [I] is making good progress in his Reception class and will benefit from continued support through the use of quality teaching approaches within a whole class setting.”
62. It appears that [I] may have been receiving some support with speech and language development prior to the October 2016 assessment as a document at [AB/85] indicates that [I] had been due to attend an appointment in January 2016 which he did not however attend. A document at [AB/86] suggests that [I] was receiving therapy in the previous year. The January 2016 letter, from Berkshire Healthcare, NHS Foundation Trust, indicates that if no further contact was made [I] would be discharged from the service. There is no further documentation indicating that [I] continued with this therapy.
63. I turn then to other relevant documentary evidence relating to the Appellant’s offending. The sentencing remarks appear at [AB/149-155]. The facts of the offending are set out in explicit detail but there is no need to include them here. Suffice it to say that the Appellant made contact online with someone he believed to be and appeared from her photograph to be a young girl under sixteen years. He suggested to her that they meet up for sex and encouraged her to send images of herself. The Appellant then arranged to meet the young person with whom he thought he was corresponding. The online profile was in fact a decoy set up by an organisation called Guardians of the North. That organisation called the police who arrested the Appellant.
64. The Appellant denied the offence. He originally sought to blame another person, claiming that he was merely driving that other person to the meeting in his cab and had lent him his mobile phone. The Appellant pleaded not guilty. He was however found guilty.
65. The starting point for sentencing was two years in custody. As this was the Appellant’s first offence and because of his family circumstances, the Recorder sentenced the Appellant to twenty months in prison. As already noted, the Appellant was made subject to the Sex Offenders Register notification requirements and a sexual harm prevention order was made until further order.
66. I have already referred to the OASys report at [AB/97-147]. The Appellant was assessed as being at low risk of reoffending. However, he was assessed at that time as presenting a medium risk of serious harm towards his children due to the nature of the offence. Although that was not based on any evidence that the Appellant had targeted his own children, there was “enough of a concern at this stage to suggest that [the Appellant] has a possible preference for children and in particular female children”. The children were at that time on a “children in need plan”. Overall, the Appellant was assessed as presenting a medium risk to children and the public and to known adult (specifically his wife). Various conditions were put in place to manage the risk including in relation to contact with children under sixteen.
DISCUSSION AND CONCLUSIONS
Exception 1
67. I do not need to dwell at length on the first of the exceptions set out in Section 117C. The Appellant entered the UK lawfully in 2012 as the dependent of Ms Bibi. He was aged thirty-four years. On any view, therefore, he has not been in the UK lawfully for half his life and cannot meet the private life exception for that reason.
68. However, since I may have to consider whether there are exceptional compelling circumstances above the exceptions, it is appropriate to consider whether the Appellant meets the other components of that exception.
69. I am willing to accept that the Appellant is socially and culturally integrated notwithstanding his offence. He has worked in the UK, made friends in the course of his employment and in the community. He has paid his taxes. Although he gave his evidence in Urdu, there is evidence that he has learnt English.
70. I do not accept however that there are any very significant obstacles to his integration in Pakistan. The Appellant was constrained to accept in oral evidence that he does have family in Pakistan. He says that his mother has re-married and they do not have contact but when asked how he knew about conditions in Pakistan now, he admitted that he had a conversation about this with his mother. He also has a brother living there. He has visited Pakistan albeit only on a couple of occasions in the ten years he has spent in the UK. He speaks the language of that country. The Appellant accepted in oral evidence that he would be able to find a job in Pakistan although it would be unlikely to pay as well as in the UK. If wages are less, however, there may well be a lower cost of living. Even if that is not so, the Appellant would be able to work, continue and form family relationships with his mother and sibling and form friendships or possibly even continue former friendships.
71. The Court of Appeal set out the test which applies in relation to very significant obstacles to integration in Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 as follows:
“14. In my view, the concept of a foreign criminal's "integration" into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life.”
72. Taking into account the factors set out at [70] above, the Appellant will be “enough of an insider” to reintegrate in Pakistan. He will be “able to operate on a day-to-day basis” and to form or continue relationships making up his private and family life.
73. For those reasons, the test at Section 117C(4) is not met.
Exception 2
74. Although the Respondent did not accept in her letter that it would be unduly harsh for the Appellant’s family to return to Pakistan with him, that was based on the situation as it was then of the family returning as one unit. The Appellant and Ms Bibi were not at that time estranged.
75. Ms Bibi is now a British citizen. She has gained a social work qualification in the UK, works here and has built her life here. Although she still has family in Pakistan, given that she is no longer in a relationship with the Appellant, Mr Melvin accepted that it would be unduly harsh to expect her to return to Pakistan with him. It followed that it would also be unduly harsh for the children to go to Pakistan with the Appellant. Ms Bibi is their primary carer. In addition, both children are British citizens. They are in education in the UK and are of an age where disruption to their education would be likely to make a significant difference. Given [I]’s diagnosis, I also accept that he would find it more difficult than other children to adjust to a change of country. Ms Bibi said as much in her evidence when speaking of the time which they spent in Pakistan in 2021. I therefore find that it would be unduly harsh for Ms Bibi and the children to return to Pakistan with the Appellant.
76. I do not accept that it would be unduly harsh for Ms Bibi to remain in the UK without the Appellant. Although I accept that the Appellant supports Ms Bibi both emotionally and financially with the children’s upbringing, his role in that regard is necessarily limited, particularly in terms of the practical support which he is able to give. Her position in relation to an ability to work full-time while the children remain in education and during school holidays will be as difficult as it is now even if the Appellant remains in the UK because he cannot assist by looking after the children on his own, taking them out and taking and picking them up from school.
77. In relation to financial support, there is limited evidence about the contribution which the Appellant currently makes. Ms Bibi said it was not of a regular amount. I accept that she and the children struggled financially when the Appellant was in prison and unable to work. They lost their house and had to be provided with alternative accommodation. That accommodation is however now paid for by the State. There is no question of the family losing that accommodation if the Appellant is deported. As British citizens, the family are entitled to such other State support as is necessary and appropriate in light of their particular circumstances.
78. I have limited evidence from Mr Malik, particularly in relation to any financial support which he may be able to give. However, he was able to provide some financial support and some emotional support while the Appellant was in prison. He continues to be called upon in the event that the Appellant needs to be supervised in his contact with his own children. There is therefore no evidence that Mr Malik would be unable to provide some assistance be it financial or emotional if the Appellant is deported.
79. Although the Appellant said that any job which he obtains in Pakistan would not pay sufficiently to provide support, I was not shown any evidence in that regard. In any event, the amount of financial support which he can provide is likely to depend on the cost of living in Pakistan and the Appellant’s own circumstances (for example whether he would be paying for accommodation – as he has to do in the UK – or would be living with his family members). A degree of speculation is required as there is no evidence.
80. It is for the Appellant to make out his case in relation to interference and he has failed to provide evidence that he would not be in a position to offer some continuing financial support. Even if he were unable to do so, Ms Bibi is able to work albeit not full-time at the moment and can seek assistance from the State if she needs to do so.
81. The main factor relied upon by the Appellant is his relationship with his two children. I accept and take into account in the discussion which follows that the children’s best interests are a primary consideration. They are not however the primary or paramount consideration (see ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at [25]). As I have already accepted, the best interests of the children are to remain in the UK with both parents in their lives. However, their best interests are mainly to remain with their mother as primary carer. The Appellant does not and cannot live with them and that is likely to remain the position for some time.
82. The Appellant relies in particular upon the impact of his deportation on [I] given [I]’s autistic spectrum disorder. Mr Dingley accepted in submissions that, but for this diagnosis and the impact on this child, the Appellant could probably not meet the exception under Section 117C(5). I confirm however that in the discussion which follows, I have considered the position of both children.
83. I accept that the Appellant has a genuine, parental relationship with his children. The evidence from the Appellant, Ms Bibi and Ms Griffiths is consistent in that regard. The Respondent also conceded this in her decision letter under appeal.
84. In assessing whether the effect of the Appellant’s deportation would be unduly harsh for his children if he were to leave and they were to stay in the UK, I bear in mind the test as set out in MK (Sierra Leone) as approved by the Supreme Court in HA (Iraq) and the high threshold which applies. The question is not whether the children would find that forced separation difficult but whether the impact would be so severe as to be unduly harsh.
85. I have to consider the impact on these particular children. I accept in this context that [I]’s diagnosis has a significant part to play. Given his autistic spectrum disorder, I accept that he might find adjustment more difficult. There is however little if any evidence that his separation from his father when the Appellant was in prison led to any more serious behavioural difficulties than usual. There is no evidence from his school in that regard.
86. Ms Bibi referred to [I]’s behavioural problems and that she finds it difficult to cope with those problems day-to-day. She did not say that those problems became any worse when the Appellant was in prison. I have explained why I can give little weight to Ms Griffiths’ views about the need for mental health intervention. In any event, as Ms Bibi said, she was able to access assistance from Social Services when the Appellant was in prison and could do so again. Whilst I accept that Mr Malik has his own family, the evidence suggests that he continues to be called upon by the Appellant’s family to assist when supervision of contact is required in Ms Bibi’s absence. As I noted above, the next of kin contacts for the school are Ms Bibi and Mr Malik and not the Appellant.
87. There is similarly no evidence from the schools that either child’s education was adversely affected by the Appellant’s absence when in prison. Nor is there evidence that the children have been unduly impacted by learning of the possibility that the Appellant will be deported. I accept that they have only been told of this recently in preparation for Ms Griffiths’ visit. However, although Ms Griffiths observed a close relationship between the Appellant and his children and some behavioural problems on the part of [I], there is no evidence that these have been caused or exacerbated by the threat of deportation.
88. I accept that the children will miss not having their father in their lives on a day-to-day basis and that this will have some impact on them. However, the Appellant cannot live with them. He is unable to have unsupervised contact. That necessarily impacts on the quality of the family life between the Appellant and his children. As I have already observed, as the children grow older, the impact of having contact which is always supervised by another adult is likely to lead them and their friends to question why that is so. That in itself might have adverse impacts on the closeness of the children’s relationship with their father.
89. The children will be able to have remote contact with their father as they did when they were in Pakistan and when the Appellant was in prison. I recognise that this is no substitute for face-to-face contact, even if that contact always has to be supervised. However, the children appear to have adapted to that situation both when the Appellant was in prison and when he remained in the UK while they went to Pakistan. In that latter case, it is telling that, when asked about how the children fared in Pakistan, Ms Bibi said that they wanted to come home but because they did not like Pakistan rather than that they were missing their father. As they grow older, they will be able to visit the Appellant in Pakistan either with Ms Bibi (who continues to have family in that country) or, when they are old enough, on their own.
90. Although I have accepted that the children’s best interests are to continue to have face-to-face contact with both parents in the UK, their interests are more strongly in favour of remaining with their mother who is their primary carer. They do not live with their father and that situation is unlikely to change.
91. For the foregoing reasons and taking into account all the evidence relevant to this issue, I do not accept that it would be unduly harsh for Ms Bibi and the children to remain in the UK without the Appellant.
Very Compelling Circumstances
92. I go on to consider whether there are very compelling circumstances over and above the two exceptions (Section 117C(6)).
93. I have explained why the Appellant is unable to meet either exception. Although he has integrated in the UK, there are no very significant obstacles preventing him from reintegrating in Pakistan. Although the Appellant’s children will no doubt find separation from him to be difficult, I have concluded that the impact does not reach the threshold to be unduly harsh.
94. It is difficult to see what additional factors come into play in this case. In any event, when considering Section 117C(6), I am required to balance the interference with the private and family life of the Appellant and the lives of those impacted by the decision against the public interest.
95. I take into account that this is the Appellant’s only conviction (although the OASys report suggests that there might have been some prior activity of a similar nature). I also take into account that the offence was only an attempt. It could not be otherwise because the profile was a decoy. However, I am bound to take into account when considering the public interest that the Appellant did not know this to be the case when he travelled a long distance with the intention it appears of having sex with a minor child who he had (on the face of it) groomed on-line. Had this been a girl of the age which the profile showed, this would have been a very serious offence indeed. As it is, given the Appellant’s intention, I am unable to give less weight to the fact that he could be convicted only of an attempt to commit the offence. When considering the public interest, I take account not only of the risk (which is set out in the OASys report as being medium to children in particular) but also the public revulsion at crimes of this nature. The public interest in this case is in my assessment a weighty consideration.
96. Balancing the interference with the private and family life of the Appellant as well as the impact on Ms Bibi, the Appellant’s children and including on Mr Malik and his family against the public interest, the public interest outweighs the interference. The decision to deport the Appellant is therefore a proportionate interference with the Article 8 rights of the Appellant and his family members who are impacted by the decision.
97. For those reasons, I dismiss the appeal. The decision to deport the Appellant does not breach section 6 Human Rights Act 1998 in respect of the Article 8 rights of the Appellant and his family members.

DECISION
The Appellant’s appeal is dismissed on human rights grounds (Article 8 ECHR).

Signed: L K Smith
Upper Tribunal Judge Smith
Dated: 8 August 2022