Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06525/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 1st August 2016
On: 2nd August 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

The Secretary of State for the Home Department

Appellant
And

OL
(anonymity direction made)
Respondent

For the Appellant: Ms Isherwood, Senior Home Office Presenting Officer
For the Respondent: Mr O'Ceallaigh, Counsel instructed by ULaw Legal Advice Centre

DECISION AND REASONS

1. The Respondent is a national of the DRC born in 1989.

Anonymity Order

2. The Respondent is subject to a deportation order on the grounds that his deportation is conducive to the public good. He would not ordinarily have his identity protected. This appeal however turns in part on his relationship with his British daughter, and there is a risk that identification of the Respondent could lead to identification of that child. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

"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 to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

The Appeal

3. On the 11th December 2015 the First-tier Tribunal (Judge John Jones QC) allowed the Respondent's appeal against a decision to deport him pursuant to s3(5)(a) of the Immigration Act 1971. Although the Respondent had not committed an index offence that would bring him within the automatic deportation provisions, he had been convicted of Actual Bodily Harm and had received a sentence of 10 months in prison. This, taken with earlier offences, led the Secretary of State to conclude that his deportation would be conducive to the public good. Judge Jones QC found that the Respondent defeated that deportation action on two grounds. First, he had shown that his removal would have an unduly harsh impact on his British daughter. This meant that the 'exception' at paragraph 399(a) of the Immigration Rules applied. Second, the Tribunal was satisfied that the Respondent had been lawfully resident in the UK for most of his life, was culturally integrated and that there would be "very significant obstacles to his integration" in the DRC. This meant that the 'exception' at paragraph 399A also applied.

4. The Secretary of State sought permission on a number of grounds. Permission was expressly refused by First-tier Tribunal Judge Astle1 in respect of all but two. It was considered arguable that Judge Jones QC had failed to give adequate reasons for his conclusions as the findings on the exceptions at 399 and 399A. I consider each ground in turn.

Ground 1: paragraph 399 (a) of the Immigration Rules

5. The Tribunal heard live evidence from numerous witnesses. In addition to the Respondent himself, the hearing was attended by both his parents, by his brothers, by his sister-in-law, and by the mother of his child. Having heard their evidence the Tribunal concluded that the Respondent enjoyed a genuine and subsisting relationship with his daughter. The grounds submit that the evidence pointed towards the relationship being "extremely limited in nature". That is not correct. The accepted evidence was that the Respondent was a "hands on" father who is a "central figure" in his daughter's life [at 82], for instance being the person responsible for taking her to and from school each day when her mother is working shifts as a nurse. The grounds further submit that there was "no independent evidence" in respect of the nature of the relationship. It is difficult to know what the Secretary of State means by this. The Tribunal heard the evidence of 7 witnesses, all of whom were tendered for cross- examination. The determination records that the HOPO on the day "did not seriously challenge" any of the evidence in respect of the close bonds that the Respondent shares with his daughter. I find that the Tribunal reached a balanced and reasoned decision as to the question of whether there was a 'genuine and subsisting parental relationship'.

6. There being no dispute that it would be unduly harsh for this British child to return to the DRC with her father, the matter in dispute before the Tribunal had been 399(a)(i)(b): whether it would be unduly harsh for the child to remain in the UK without the person who is to be deported. In its consideration of that question the Tribunal noted conflicting jurisprudence from the Upper Tribunal on the meaning of "unduly harsh". The determination contrasts [at 85-87] the decision in MAB (paragraph 399; unduly harsh) USA [2015] UKUT 435 (IAC) with that in KMO (section 117 -unduly harsh) Nigeria [2015] UKUT 543 (IAC) and firmly plumps for the latter: "I consider that these public interest considerations require consideration when deciding whether the appellant comes within paragraph 399". As Mr O'Ceallaigh rightly notes, the Judge here foreshadowed the decision of the Court of Appeal in MM (Uganda) [2016] EWCA Civ 450. There was therefore no misdirection.

7. Ms Isherwood submits that notwithstanding the legal framework that the Tribunal purports to apply, it failed to in fact apply the correct test, since no, or at least insufficient, weight has been given to the public interest. She submits that the Tribunal has done nothing more than point to the fact that the child will be upset; the term "harsh" indicates a high threshold, and the word "unduly" sets the bar even higher. I am not at all satisfied that this is what the Tribunal has done. Having properly directed itself to the meaning of the term the Tribunal then expressly weighs the public interest in the balance, listing at [88] five distinct matters that weigh against the Respondent. The Tribunal considers the offending history at [91] and refers back to the summary of the sentencing remarks at [77] when the vicious nature of the assault is examined. The Tribunal does not ignore the public interest, nor has it shied away from the nature of the offending, which it itself concluded had caused "serious harm" so as to bring the Respondent with the definition of a "serious criminal". The evidence about the child was not simply that she would be upset. The evidence of all of the witnesses was that she was extremely close to her father and that this was a relationship of particular significance given the demanding nature of her mother's profession. Paragraph 96 makes express reference not only to the evidence of the child's mother, but to that of ZE, the Appellant's sister-in-law. The sum of this evidence was that the child was "extremely distressed" by any separation from her father, that she "cries, screams and is very difficult to settle" when her mother picks her up from her father's family home because she fears that it will be the last time she sees him; her mother believes that she would be "traumatised" if he were to be removed from her life. Against this substantial interference the Tribunal weighed the public interest, and having done so found the consequences for the child to be severe and "inordinately and excessively harsh" [at 97]. I find the reasons expressed in the determination to be perfectly rational and clear.

Ground 2: paragraph 399A of the Immigration Rules

8. The facts accepted by the Tribunal, and weighed into its consideration of paragraph 399A, were as follows. The Respondent is now 26 years old. He has lived in the United Kingdom since he was three. He has not left the country since he arrived here (he was granted Exceptional Leave to Remain not long after his arrival and Indefinite Leave to Remain in 2003) He has committed three offences as an adult; one resulted in him being sent to prison. He has no living relatives to whom he could turn for support in the DRC. The DRC is a country riven by conflict with no social support for the bulk of the population. He speaks fluent English, "indeed as a native" and only basic Lingala. He is "plainly socially and culturally integrated in the UK" and the cumulative factors outlined do constitute significant obstacles to integration.

9. The Secretary of State takes issue with these conclusions on the basis that they are inadequately reasoned. I am unable to accept that submission. I find the determination to be very well reasoned; it leaves the reader in no doubt about why the decision is as it was. In his Rule 24 response Mr O'Ceallaigh suggests that any other outcome would have been irrational. Whilst I need not go that far I am wholly satisfied that the Secretary of State understands why she has lost on this point. To paraphrase, it is because this is a man who walks and talks like he is from London, he has no understanding or experience of life in the DRC and has no connections there to guide or assist him in re-establishing himself. Add to that the fact that this is an unstable country where his grandmother was killed [at 95] and his family were forced to flee [100], and the Tribunal's rationale is perfectly understandable. In her submissions Ms Isherwood suggested that the Tribunal had failed to take a material fact into account, namely whether he could be supported by remittances from his family in the UK. I need not fully address that matter since it falls outwith the terms of the grant of permission, but simply note that there is no evidence that this point was put to the Judge (Ms Isherwood did not know) or that such remittances would be forthcoming, or that if they were they would in any way alleviate the daily struggles that the Respondent would encounter trying to live in, for instance, Kinshasa.

Decisions

10. The determination of the First-tier Tribunal contains no error of law and it is upheld.

11. There is an order for anonymity.

Upper Tribunal Judge Bruce
1st August 2016