Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/15785/2014

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On February 21, 2017
On February 28, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MR EVANS OMONDI ONYANGO
(NO ANONYMITY DIRECTION MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
Appellant Miss Rutherford, Counsel, instructed by Dicksons Solicitors
Respondent Mr Bates (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. I do not make an anonymity order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).
2. The appellant is a national of Kenya. In September 2000 the appellant entered the United Kingdom using his brother’s passport and identity. On August 30, 2002 he was arrested at which time he gave his correct details. He was served with illegal entry papers on October 18, 2002. He was sentenced for perverting the course of justice on June 10, 2003 and given a six months prison sentence.
3. On August 21, 2003 he was given six months temporary admission but on October 16, 2005 he voluntarily left and returned to Kenya.
4. On August 24, 2006 he was granted leave to enter as the spouse of a settled person. On August 19, 2008 he submitted an application for indefinite leave to remain and this was granted on February 20, 2009.
5. On May 21, 2010 he was sentenced to nine months’ custody at Preston Crown Court for a section 20 assault and issued with a warning letter by the Secretary of State on July 6, 2010. On July 1, 2013 he was sentenced at Preston Crown Court to sixteen months’ imprisonment for a section 20 assault and on July 25, 201 he was served with a notice of liability for deportation. His prison sentence ended on March 1, 2014 and he was re-detained under Immigration powers on July 30, 2014.
6. The appellant has three children:
a. Tyler born 4.3.2003 (13 years of age)
b. Emily born 9.12.2007 (8 years of age)
c. Jacquelyn born 9.4.2009 (7 years of age)
All children live with their mother and are British citizens.
7. The respondent made a deportation order by virtue of Section 32(5) of the UK Borders Act 2007 on October 16, 2014 and certified it under paragraph 94B of the 2002 Act. He was served with this order on October 17, 2014 and he left the United Kingdom of his own accord on December 10, 2014.
8. The appellant appealed that decision on December 11, 2014 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and his appeal came before Judge of the First-tier Tribunal Parker (hereinafter referred to as “the Judge”) on May 16, 2016. In a decision promulgated on June 2, 2016 he allowed his appeal on human rights grounds.
9. The respondent appealed the Judge’s decision on June 8, 2016 and permission to appeal was granted by Judge of the First-tier Tribunal Hodgkinson on September 28, 2016.
10. The matter came before me on November 30, 2016 and on that occasion I found there had been an error in law. I set aside the decision for the reasons given in my earlier decision and listed the matter for further evidence and submissions.

THE APPELLANT’S CASE
11. The sponsor, Amy Katherine Onyango, adopted her earlier statement dated December 14, 2015 and gave oral evidence. She made clear that she and the appellant were no longer in a relationship and had lived apart since 2011. However, she supported the appellant’s application to set aside the deportation order in the interests of their three children.
12. She explained that her own financial circumstances had changed and financially she was worse off now than she had been when she paid for her children to go to South Africa to see their father. She had used an inheritance to pay not only for the children’s travel but also for a British Airways chaperone. The trip had cost her £5,000 and she no longer had such funds available to her. The appellant was working but he did not have the amount of money needed to pay for the children’s flights but the appellant would be able to fund three or four trips a year to the United Kingdom because he would be able to travel outside of school holidays when it was cheaper.
13. The sponsor described Tyler as being the most affected by his father’s absence because he was at an age where he wanted his father around. He and his sisters had made it clear they missed their father but expressed their feelings in different ways. The sponsor believed that as mixed-race children growing up in a white middle-class area they would not gain an insight into the cultural background and the bonds they currently had with their father would weaken and they would struggle with their identity.
14. Mr Bates cross-examined the sponsor about the children and she confirmed that none of the children had had any counselling and she agreed that they were all doing well in their schools. She believed that even though he did not plan to live here the short trips he proposed to take would benefit them.
15. The sponsor confirmed to me that only Tyler was aware his father had been to prison and that he was now blaming her for his father not being allowed to live here or visit him. The girls were not aware of what had happened. Since he had returned to Kenya he had attended counselling sessions and problems with his father had ended following his death and he had learnt to cope with his aggressive behaviour and was no longer verbally aggressive towards him.
16. I have also have before me to the Mr Musendo’s report.
SUBMISSIONS
17. At the commencement of submissions, I indicated to the two representatives that I was aware the Supreme Court was due to hand down judgements in cases that may affect these appeals. I gave them until close of business on Monday February 27, 2017 to serve any additional submissions on what the Supreme Court had to say both on myself and each other. Both Miss Rutherford and Mr Bates were agreeable to this course of action.
18. Mr Bates relied on the refusal letter and invited me to uphold the deportation order. He acknowledged that the best interests of the children normally were to live with both parents or to have both parents in their lives but this case had to be looked at against the background that existed before he voluntarily returned to Kenya. The appellant had not lived with his children since July 2011 and on July 30, 2013 he had been sentenced to a term of sixteen months imprisonment for wounding and inflicting grievous bodily harm. This was his second conviction for a similar matter because he had received nine months custody on May 21, 2010. According to the sponsor the appellant did not intend to come and live here but simply wished to be given the option to visit his children whenever he felt like and up to three or four times a year. Since he returned to Kenya the children had had to “get on” with their lives and they all appeared to be doing well in school and each provided a good school report. Tyler was progressing in football and was attending at Everton Football Club Academy-one of the top Academies in the country. His daughters both had good reports and none of them had any health issues and whilst the sponsor stated they were upset they all appeared to be progressing well in their father’s absence. Mr Musendo’s report changed nothing and said nothing that might not have been expected. They missed their father and would like to see him. The report contained speculation and ignored the fact that the appellant was not in this country because he had committed serious offences and had been deported. The fact Tyler acted up was not inconsistent with his age (aged 14). There was no up to date counselling report about what work had been done with the appellant.
19. The Tribunal in KMO (Section 117-unduly harsh) Nigeria [2015] UKUT 00543 provided guidance on how to approach an appeal such as this and whilst the consequences were harsh and not desirable they were not unduly harsh. There is an expectation when a deportation order is made that the person would be unable to enter the country for ten years but it was accepted that as time passed the public interest in maintain the order would lessen. The order was only a couple of years old and it easy too early to be setting aside an order that had been imposed on the second occasion-the appellant having already been given one chance when the order was not pursued in 2007.
20. Miss Rutherford adopted her skeleton argument and submitted that barring the appellant from this country was unduly harsh on the children. The Tribunal had the benefit of evidence from both the sponsor and the expert witness. It was clear the children were affected by the deportation order and were affected despite there being evidence they were doing well in school and there being no medical evidence or evidence from a counsellor. Tyler blamed his mother for his father not being here and whilst it may be puberty there was still the fact his father was not able to see him. Although the appellant had been in prison Tyler retained an expectation he would see him and whilst he may not come back to live they would have the option of seeing him. The sponsor has no one to help her and although her relationship ended in 2011 he nevertheless continued to see his children. The sponsor believed he had changed and the PSR report suggested that if he had counselling and he refrained from drink he would pose a low risk of re-offending.
21. In her additional submissions Miss Rutherford referred to the decisions of MM, Agyarko and Hesham Ali. She acknowledged that neither MM nor Agyarko involved deportation but argued that as they involved article 8 the principles were of relevance.
22. Miss Rutherford invited me to allow the appeal on human rights grounds.
DISCUSSION AND FINDINGS
23. This is an application to revoke a deportation order. Under section 32(5) of the UK Borders Act 2007 the appellant was subject to the automatic procedure. In order to set aside the deportation order I have to be satisfied that the appellant came within one of the exceptions set out in Section 33 of the 2007 Act.
24. As the appellant received a sentence of less than four years but more than twelve-months paragraphs 399 and 399A HC 395 may apply in this appeal.
25. In order to succeed under paragraph 399 HC 395 the appellant must show:
a. he had a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and was British; and
b. it would be unduly harsh for the child to remain in the UK without the person who was to be deported.
26. I have had regard to the following case law:
a. Chege (section 117D-article approach) [2015] UKUT 165(IAC)
b. McLarty (Deportation- balance) [2014] UKUT 00315
c. KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 00543
d. Hesham Ali v SSHD [2016] UKSC 60
e. R (on the application of MM) (Lebanon) and others c SSHD [2017] UKSC 10
f. R (on the application of Agyarko) and another v SSHD [2017] UKSC 11.
27. I have taken into account the following matters:
a. The appellant’s immigration history.
b. The appellant’s previous convictions.
c. The fact that when Tyler was born in this country the appellant was here unlawfully.
d. The fact that when Emily and Jacqueline were born the appellant’s immigration status was precarious.
e. The children’s circumstances as evidenced by the evidence of their mother and the independent social worker’s report.
f. The public interest in the removal of foreign criminals in light of the fact the Courts had made clear Parliament had tilted the scales strongly in favour of deportation and for them to return to the level and then swing in favour of a criminal opposing deportation there must be compelling reasons, which must be exceptional.
g. The need for a proportionate assessment of any interference with Article 8 rights.
28. The appellant originally entered this country illegally and during this initial period in the United Kingdom he met the sponsor and she fell pregnant and gave birth to Tyler on March 4, 2003. The appellant was eventually granted temporary leave on August 21, 2003 by which time he had received his first jail sentence for perverting the course of justice. He subsequently left the United Kingdom and applied to re-enter as a spouse and he returned on August 24, 2006. He remained in this country until he voluntarily left in December 2014 following the making of the current deportation order. Whilst here lawfully the sponsor gave birth to his two other children on December 9, 2007 and April 9, 2009.
29. According to the evidence before the First-tier Tribunal the sponsor left the appellant due to a number of relationship issues and the realisation that they had grown apart. That situation has not changed and it is not the appellant’s or sponsor’s case today that they intend to resume their relationship. The sponsor stated that any issues between the appellant and herself should not impact on their role as parents.
30. The evidence given to the First-tier Tribunal by the sponsor was that she fully supported the appellant’s role in their children’s life and she described him in her witness statement as a “fantastic father to all three children.”
31. Since the last hearing in May 2016 the sponsor had spent around £5,000 on the children travelling to South Africa to see their father.
32. I also have the report of Charles Musendo, an independent social worker. He interviewed the children on February 11, 2017 and observed them with the sponsor and her parents for three hours. He also spoke to two of the sponsor’s friends as well as speaking to the appellant himself.
33. Mr Musendo concluded it would be contrary to the children’s best interests to remain separated from their father and the continued separation of the children from their father was not capable of being counterbalanced through Skype, the internet or other forms of social media. The possibility of infrequent visits to Kenya were a theoretical but unrealistic option but could seldom be justified as a reasonable alternative in parenting. Mr Musendo concluded that the appellant and children have a relationship which is genuine and subsisting and I have seen nothing in the papers before me that would undermine that finding.
34. However, Mr Musendo’s report has been prepared on the basis that continued separation would not be in the children’s best interests because, for instance, the appellant is not around to watch Tyler play football or give him the guidance he needs. The author of the report appears oblivious to the fact that the appellant does not wish to live here and that he intends to come over for three or four short visits a year. Examples of this misunderstanding can be found in his conclusions at:
a. At paragraph [62] of the report Mr Musendo refers to the children’s wish to have “regular consistent direct contact with their father” but this is not what is being proposed. What was put forward at the hearing will not “take them to school, accompany them to sporting activities, provide guidance or teach them the difference between right and wrong.”
b. At paragraph [72] of the report Mr Musendo referred to the fact that without the appellant’s presence the sponsor would not be able to provide for the identity needs of her children.
c. At paragraph [76] of the report Mr Musendo referred to the appellant’s continued separation from the family unit being likely to compromise the quality of care given to the children. In his opinion “enforced separation of Mr Onyango from his family can be viewed as a loss to each of the family members.”
d. At paragraph [79] of the report Mr Musendo referred to the sponsor struggling to put in place boundaries and routines without the appellant’s support.
35. Mr Musendo’s report confirmed there is a genuine and subsisting relationship but his conclusions were based on an assumption that the appellant was seeking to come and live here. The sponsor made it clear in her oral evidence to me that this is not the position and consequently his conclusions are of little assistance because he has not provided any view how occasional visits would benefit the children as his assessment is based on the appellant being here.
36. I accept that the first part of paragraph 399 HC 395 is met but paragraph 399 HC 395 has a second element to it namely whether it would be unduly harsh for the children to remain in the UK without the appellant. The test in paragraph 399 HC 395 mirrors the test in Section 117C(5) of the 2002 Act.
37. The Tribunal stated in KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 00543:
“22. I turn to the interpretation of the phrase "unduly harsh". Plainly it means the same in section 117C(5) as in Rule 399. "Unduly harsh" is an ordinary English expression…
23. The context in these cases invites emphasis on two factors, (1) the public interest in the removal of foreign criminals and (2) the need for a proportionate assessment of any interference with Article 8 rights….
24. This steers the tribunals and the court towards a proportionate assessment of the criminal's deportation in any given case. Accordingly, the more pressing the public interest in his removal, the harder it will be to show that the effect on his child or partner will be unduly harsh. Any other approach in my judgment dislocates the "unduly harsh" provisions from their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case the term "unduly" is mistaken for "excessive" which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case. In the present context relevant circumstances certainly include the criminal's immigration and criminal history.
26. … The expression "unduly harsh" in section 117C(5) and Rule 399(a) and (b) requires regard to be had to all the circumstances including the criminal's immigration and criminal history.”
38. The Tribunal in KMO made clear the expression “unduly harsh” required regard to be had to all the circumstances including the appellant’s immigration and criminal history.
39. The sponsor confirmed that Tyler was aware the appellant had been in prison because he was taken to see him when he served his sentence. The younger children were unaware of the father’s criminal behaviour and this may go some way to explain why they are struggling to understand why their father is not living here. Whilst the sponsor and the report indicate the children are missing their father I note the school reports do not suggest they are unsettled by their current situation.
40. I accept the children would want their father in their lives but that is not the test I must apply. It is clearly a factor for me to have regard to but it is not the only factor.
41. When sentenced on July 1, 2013 the Judge found no evidence of any real remorse albeit he noted that the appellant stated he intended to change his ways but commented that at 36 with three children it was something he should be doing anyway. He had a previous conviction for an identical offence three years earlier and he had also been sent to prison for perverting the course of justice. He has other less serious offences and whilst they are not in themselves reasons to make a deportation order they are factors to consider when looking at his previous history.
42. His immigration history shows he came here illegally although to his ultimate credit he left the country and applied to enter as a spouse and was then given a visa. Whilst here legally he committed the two offences of serious violence which led to substantial periods of imprisonment.
43. The appellant may have had counselling but I do not lose sight of the fact that a deportation order is for ten years and the appellant has been out of this country for just over two years. His stated intention that he has learnt his lesson and is a different person must be looked at against a history of offending behaviour.
44. I have considered the evidence presented to me and have attached weight as I have felt appropriate. I have taken into account that this is only an application to set aside the deportation order and if he succeeded today the appellant would still have to apply for a visa before being granted entry.
45. In order to succeed under paragraph 399 HC 395 the appellant not only had to show he has a genuine and subsisting relationship with his children but that it would also be unduly harsh for the children to remain here without the appellant. Having had regard to all the above matters I am satisfied it would not be unduly harsh to refuse him entry.
46. I have also considered the appellant’s appeal under paragraph 399A HC 395 because the appellant satisfies paragraph 398(b) HC 395. However, the appellant has not been lawfully resident in the United Kingdom for most of his life and is not socially and culturally integrated in the United Kingdom and he has demonstrated that there are no “very significant obstacles” to his integration into Kenya as he has been living there since he returned.
47. I have gone on to consider the appeal outside of the Rules under article 8 ECHR and applying the guidance in Razgar [2004] UKHL 00027 I find that the appellant and his children do have family life. Preventing him from entering this country will interfere with the family life he and his children seek but it is in accordance with the law and for the purposes of immigration control.
48. The issue is one of proportionality and in considering proportionality I have had regard to the cases of Hesham Ali, MM and Agyarko as well as other authorities that provide guidance in such cases. I have also had regard to section 117A-D of the 2002 Act.
49. The Supreme Court in Hesham Ali made clear at paragraph [53]-
“… The policies adopted by the Secretary of State, and given effect by the Rules, are nevertheless a relevant and important consideration for tribunals determining appeals brought on Convention grounds, because they reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. In particular, tribunals should accord respect to the Secretary of State’s assessment of the strength of the general public interest in the deportation of foreign offenders, and also consider all factors relevant to the specific case before them, as explained at paras 37-38, 46 and 50 above. It remains for them to judge whether, on the facts as they have found them, and giving due weight to the strength of the public interest in deportation in the case before them, the factors brought into account on the other side lead to the conclusion that deportation would be disproportionate.”
50. The best interests of the children were addressed in Mr Musendo’s report but this is not a case where it is being argued that the appellant be admitted so he can live with the children or spend substantial periods of time with them. The appellant has his own life in Kenya and proposes to come here for short visits 3-4 times a year. I am considering their best interests against that background. The alternative is less frequent visits by the children to Kenya or South Africa for financial reasons. In an ideal world the children should be allowed to see their father whenever they want but this case involves a deportation order and therefore section 117C of the 2002 applies.
51. Section 117C of the 2002 Act makes clear that deportation is in the public interest and the more serious the offence the greater the public interest in keeping him out of the United Kingdom. Section 117C(5) applies but this of course is identical to what has been considered under paragraph 399 HC 395 and my conclusions equally apply here.
52. I have to decide whether refusing to set aside the order is proportionate by balancing the public interest in maintaining the deportation order against the impact of a continued separation. I have had regard to the evidence above, the effect of Sections 117B and 117C and the importance of maintaining the public interest in upholding the deportation order.
53. It is not simply a case of going along with the children’s wishes and whilst the children wish to see their father and there may be some benefit in them seeing their father, I am not satisfied at this point in time that the order should be set aside and the public interest in maintain the order outweighs his wish to have the order set aside.

DECISION
54. I dismiss his appeal under the Immigration Rules.
55. I dismiss his appeal under article 8 ECHR.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD
I make no order for costs as I have dismissed the appeal.

Signed: Dated:

Deputy Upper Tribunal Judge Alis