Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01091/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 10 March 2017
On 26 April 2017

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

o C
(anonymity order made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Denholm, Counsel instructed by TRP Solicitors
For the Respondent: Mr P Duffy, a Senior Home Office Presenting Officer

DECISION AND REASONS
Anonymity
The First-tier Tribunal made an order pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008: unless the Upper Tribunal or a court directs otherwise, no report of these proceedings or any form of publication thereof shall identify the original appellant, whether directly or indirectly. This order applies to, amongst others, all parties. Any failure to comply with this order could give rise to contempt of court proceedings.

1. The appellant, a Zimbabwean citizen, appeals against the decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision on 12 February 2015 to refuse him international protection under the Refugee Convention or humanitarian protection grounds, or leave to remain on human rights grounds.
2. The appellant did not pursue the asylum or humanitarian protection element of his claim. He challenged the decision to refuse him leave to remain on human rights grounds, based on his relationship with a British citizen woman and their two British citizen children.
3. The appellant is on the Sex Offenders Register, following his conviction on 23 February 2007 for sexual activity contrary to Section 9(1) and (2) of the Sexual Offences Act 2003. The appellant had consensual sex with a 15½-year old girl who was not legally in a position to give her consent.
Background
4. The appellant was born in 1971 and is now 46 years old. He came to the United Kingdom as a student in 2005 but failed to study: he left a wife and child behind, but they have also left Zimbabwe, and the appellant’s evidence is that they may be in either in South Africa or the Netherlands. It is unnecessary for the purpose of this decision to decide their location.
5. When the appellant was convicted in 2007, the sentencing Judge made the following observations:
“I sentence you on the following basis, that you are a man of previous good character and you have never been in trouble before. The sexual activity you were engaged in with the complainant in this case... was entirely consensual. There was no pressure, there was no overbearing attitude by you whatsoever and one further piece of mitigation which Mr Nelson has addressed me, which I think is worth noting, is that she was nearer 16 than 15. She was 15 and a half at the time....
You have an extremely cavalier attitude to contraception and the transmission of sexual diseases. There is a considerable disparity of age here... I am now told that this activity has had some detrimental effect upon her.
I am not going to recommend you for deportation. I do not think in the circumstances of this case that it is going to be of any assistance at all. I shall reduce the sentence that I was going to pass from 12 months to 11 months in relation to each count concurrent, so 11 months in all.”
The appellant has not offended again and that is his sole criminal offence.
6. The respondent made a deportation order, based on Section 72 of the Nationality, Immigration and Asylum Act 2002 (as amended) and delegated legislation made thereunder. That deportation order was subsequently revoked on the basis that it had been incorrectly obtained, applying the decision of the Court of Appeal in EN (Serbia) v Secretary of State for the Home Department & Anor [2009] EWCA Civ 630. A further deportation order was made in August 2007 and there is a long history which does not concern us in this appeal today.
7. The applicant’s partner is a vulnerable woman with an IQ of 69. She has previously been in abusive relationships and has been reluctant to accept Social Services support for herself as an adult. She has siblings and some family support, which did not protect her in the past from her violent former partner. She has 6 children, 4 of whom are not the appellant’s and have been taken into local authority care (2 have been adopted). The applicant and his partner have two children together: a boy, born in August 2013, and a girl, born in May 2015.
8. When the elder child was born, Social Services took him into care at birth. He was returned to the appellant and his partner on 4 July 2014 under a 12-month supervision order, which has since been discharged. In late July 2014, the appellant’s partner became pregnant again, less than a month after the return to them of the older child.
9. On learning of the second pregnancy, the respondent wrote to the Children’s Services Director of Haringey Borough Council, suggesting in effect (although not in terms) that in the light of the second pregnancy, the London Borough of Haringey should be considering taking both children back into care. The letter mentions that the older boy had an unexplained cut to his forehead in March 2015, which required some medical attention and that it had not occurred to either of the parties to seek medical attention. There is also a reference to the appellant’s “attitude to females” not being a positive influence.
10. On 4 August 2015 CAFCASS wrote to the Criminal Casework Director stating that they had carried out a comprehensive assessment along with parenting training for the appellant’s partner and returned the elder child gradually to the parents despite the second pregnancy. The letter concludes:
“We do appreciate the concerns held by the Home Office as to the parents’ ability to care for the children adequately given the parents’ difficulties reflected, for example in the parents’ lack of appreciation of the need to secure medical help for [the older child] after his accident in March 2015. Although he has not been formally tested the local authority are of the view that [the appellant] also may have some learning difficulties which would also impact on his ability to always make good decisions for the children. However the social worker is satisfied that the explanation for the injury is consistent with the explanation given and the reality of working with parents with this level of cognitive difficulty is that ongoing guidance and reinforcement of advice is necessary.
With regard to the RWA reports you have of course only seen the paragraph extracted from them by the Children’s Guardian for her report. The possible risks identified were very much in the future, and of a speculative nature. We have considered whether an updated assessment should be obtained in the light of [the younger child’s] birth given her gender, but have decided that there is no current evidence to warrant this exercise.
Overall we are satisfied that the support and monitoring provided by the Child in Need procedures is enabling the parents to provide good enough parenting for the children at this time.
In conclusion, we do of course appreciate that your task and therefore your focus is different from ours. We are concerned only with child protection issues. However, the deportation of [the appellant] will have a devastating effect on [his partner] and the likely care she is able to provide for the children. They will lose their father who underpins their care and will be at real risk of neglect, removal into care and a very uncertain future. There will of course also be a substantial interference with their Article 8 rights to a family life. Given that your letters indicate a concern for the wellbeing of these children we would ask you to bear in mind in your decision-making that [the appellant’s] deportation is certainly not in the interests of the children.”
On 4 August 2015, Sara Stephens, advocate lawyer with the social care team of the London Borough of Haringey set out a 6-point plan of support, mentioning that although the local authority and the Guardian had concerns about the family’s ability to look after 2 children, ongoing assessment had allayed those concerns, subject to a comprehensive support package being in place.
11. The situation of the family was referred to the office of the Children’s Champion in June 2015. Correspondence between the Home Office and Haringey Council continued. On 26 February 2016, Haringey Early Help Team set out that the support and advice package had ended, and the case was closed. The elder child attends speech and language classes and his speech is delayed for his age, but otherwise he is developing normally.
First-tier Tribunal decision
12. The appellant told the First-tier Tribunal that he did not think that his partner could care for the children without him and that he had attended a lot of programmes at Social Services and they had both done everything that was asked of them. He told the Tribunal that the elder child might run off in the street and that his partner would struggle to hold his hand. He did not agree that they would be unable to care for two children.
13. In the First-tier Tribunal decision at [51] the judge accepted that the appellant presented a low risk of reoffending. When reaching her conclusion, the judge said this:
“57. Therefore taking all of these factors into consideration I do not find that it would be unduly harsh on [the children] for them to remain in the United Kingdom without the appellant who is to be deported. This is not to deny that it will have a significant impact upon their lives. I accept that there is a possibility that they may face neglect or being taken into care if the appellant is deported but this is one of several possibilities and has not been made out on the balance of probabilities and it is outweighed by the other factors including the public interest in deportation which includes but is not limited to the public interest in deterring future offenders particularly in light of the appellant’s offence against a minor who could not legally consent to sexual activity and is deemed to be a vulnerable member of society. I bear in mind my findings above about the risk of reoffending. ...
60. It is Mr Denholm’s submission that the appellant’s role as an active day-to-day father for [the children] and his relationship with [his partner] goes beyond ‘unduly harsh’ and satisfies the powerful and irresistible test of ‘very compelling circumstances’ identified in Chege. I do not find that to be the case. I do not find it to be a probability that [the partner] will fail adequately to care for [the children], that [the children] will be taken into care or that [the appellant’s partner] will enter into an abusive or exploitative relationship. I find that such claims do not reflect the current situation which is that [the partner] has undergone parental classes and guidance which have improved her parenting skills and that she, albeit with the assistance of the appellant, has for several years provided good enough care for [the children]. I find that the appellant’s removal would result in Haringey Social Services becoming engaged again with [the partner and their children], that an assessment of her care would be made and if necessary action would be taken which may include guidance and assistance from social workers. At one end of possibilities [the children] could be removed from the care of [the appellant’s partner] or neglected by her but, and as set out above, I find this to be one of several possibilities (the others being that [the partner] provides good enough care by herself or that she is monitored and supported by the local authority and through this support provides care to a good enough standard). Therefore I find that very compelling circumstance have not been made out in this case and that paragraph 398 of the immigration rules cannot be satisfied.”
Permission to appeal
14. Permission to appeal was granted on the basis that it was “just about arguable” that insufficient weight had been given to the Section 55 interests of the children particularly concerning the disruption to the children caused by the removal of their father.
Upper Tribunal hearing
15. I have heard oral submissions from Mr Denholm for the appellant, and Mr Duffy for the respondent.
16. For the appellant, Mr Denholm reminded me that the appellant’s sentence for a single offence of sex with a willing underage girl who was just a few months from sexual majority was 11 months, less than a year. OASys had assessed him then as presenting a low risk of reoffending and they had been right: the appellant had not committed any subsequent offence in the 9 years since his original sentence. The appellant’s children and partner were British citizens. He could not marry his partner at present, because he was not divorced from his Zimbabwean wife.
17. The appellant and his partner had done everything they were asked to do, and Social Services had now closed the file on them and their children. They were considered to be ‘good enough’ parents now. The appellant’s partner, because of her limited intelligence, relied heavily on him to support her parenting: the evidence did not suggest that without him, she would be able to maintain her ‘good enough parent’ status. It was much more likely than not that the appellant’s removal would result in his children being taken into care, and perhaps adopted, like his partner’s elder 4 children.
18. Mr Duffy for the respondent accepted that there were difficulties with the First-tier Tribunal decision, but reminded me that the Upper Tribunal may only interfere with findings of fact such as those at [57] and [60] in this decision where it is satisfied the findings are perverse, Wednesbury unreasonable or contrary to the evidence before the First-tier Tribunal (see Lord Justice Brooke in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [90.2]).
19. On the evidence which I have just set out I am so satisfied. The appellant’s partner is a woman who has already lost 4 children who have been taken into care and adopted. Her intelligence is strikingly low and she is a vulnerable person. Even with the assistance of the appellant, CAFCASS considers that they are only just a good enough parenting environment. The appellant has not been given a sentence in excess of than twelve months and has committed only one non-violent offence, now some 10 years ago.
20. Paragraph 398 of the Immigration Rules at paragraph 398C requires the Secretary of State to show that the offending has caused “serious harm”. That is not what the sentencing remarks say and there is no other evidence that “serious harm” was caused to the 15½ year old girl with whom this appellant had a relationship.
21. Paragraph 399A is met, the appellant does have a genuine and subsisting relationship with two citizen children and on the evidence I am satisfied that it would be unduly harsh for these children to remain in the United Kingdom without him. The evidence before the Tribunal leads inexorably to the conclusion that without the support of the appellant these children are likely to be taken into care as the other four children were and indeed the Home Office letter to the Children’s Services Director of Haringey on 22 June 2015 strongly suggests that that is also her view.
Conclusions
22. I am satisfied that the First-tier Tribunal decision contains a material error of law. I set it aside and substitute a decision allowing the appeal.

Signed: Judith A J C Gleeson Date: 21 April 2017
Upper Tribunal Judge Gleeson