Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01784/2016

THE IMMIGRATION ACTS

Heard at : Field House
Decision and Reasons Promulgated
On : 13 January 2017
On: 16 January 2017

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

hAOF
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Claire, instructed through Direct Access
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appeals, with permission, against the decision of the First-tier Tribunal dismissing her appeal against the respondent's decision of 2 February 2016 to refuse her protection and human rights claim, further to a decision to deport her made on 22 June 2015.

2. The appellant is a citizen of Ghana, born on 13 July 1961. Her immigration history is long and protracted but I shall endeavour to summarise it as follows.

3. The appellant arrived in the UK initially from Rome in April 1986, in the name of AS, having been sentenced to a term of imprisonment in Italy in 1985 for providing false information and having been charged for receiving a stolen British visitor visa. She was given leave to enter and remain until April 1987, following which she made an unsuccessful application for leave to remain on the basis of her marriage to a British citizen, WS, and was then issued with a notice of intention to deport. She appealed against that decision, including an asylum claim in her grounds of appeal, and her appeal was dismissed. Her marriage to WS was annulled and in December 1993 she married TJO, also a British citizen, and made an application for leave to remain on the basis of her marriage in January 1004. That application was refused and a signed Deportation Order was issued and served on her on 2 June 1995. On 6 June 1995 she was deported to Ghana as AO.

4. On 6 September 1995 the appellant returned to the UK in a different identity, as HS, with a different date of birth. She married another British citizen, ECF, and applied for leave to remain on the basis of her marriage, as HF. Her application was refused and a notice of intention to deport her was issued. She appealed against the decision, claiming asylum again, but then withdrew her claim and was unsuccessful in her deportation appeal. On 12 August 1999 a Deportation Order was signed against her as HF, which was served on 21 February 2000.

5. On 11 May 2000 the appellant was convicted of indecent assault on a 16 year old boy with cerebral palsy whilst working at a hospital and she was sentenced to 15 months imprisonment. Her pervious identity and deportation came to light whilst she was in prison and she was served with a removal notice as an illegal entrant in breach of a deportation order. She appealed against the removal decision, raising human rights grounds which were then considered, together with further representations, as a human rights claim. Her appeal was heard and dismissed in October 2005 and the appellant became appeal rights exhausted in April 2006. On 31 January 2014 a liability to deportation notice was issued to the appellant and on 22 June 2015 a decision was made to deport her. Further representations were made in a section 120 notice, on family and private life grounds under Article 8 and on medical and protection based grounds under Article 3. On 2 February 2016 the respondent refused the appellant's protection and human rights claim and the appellant appealed against that decision.

6. In refusing her claim, in her decision of 2 February 2016, the respondent concluded that the appellant was at no risk on return to Ghana, that she was excluded from humanitarian protection because of her criminal offending and that her removal to Ghana would not breach Articles 2 or 3 of the ECHR. With regard to Article 8, the respondent noted that the appellant had three children, CS born in 1988 (whose father was WS), and AF born in March 1997 and SF born in August 2001, both of whom were daughters of the appellant and ECF. The respondent noted that CS and AF were no longer children. As regards SF, the respondent accepted that the appellant had at least a limited relationship with her and considered that it would not be unduly harsh for her to relocate Ghana or to remain in the UK with her father whilst the appellant was deported to Ghana. The respondent accepted that the appellant had a genuine and subsisting relationship with ECF but considered that the relationship was formed when she was in the UK unlawfully. In the absence of any evidence that the appellant's previous marriage had been dissolved, and that her marriage to ECF was therefore valid, ECF was considered only as her partner. The respondent did not accept that it would be unduly harsh for ECF to live in Ghana or to remain in the UK whilst the appellant was deported to Ghana. The respondent did not, therefore, accept that the appellant met the criteria in paragraph 399(a) or (b) and neither was it accepted that she could meet the criteria in paragraph 399A on the basis of private life, given that she had been in the UK in breach of a Deportation Order and that there were no very significant obstacles to her integration into Ghana. Consideration was given to the fact that the appellant was the main carer to her granddaughter KF, the daughter of AF, who was subject to a Child Protection Plan under London Borough of Newham owing to concerns as to the ability of AF to care for her. Newham Social Services had assessed the appellant as a suitable special guardian for KF and the long-term plan was for KF to remain in her care, although there was an outstanding application by ECF to be granted a Special Guardianship in light of the appellant's precarious immigration status. The respondent considered that there were no very compelling circumstances outweighing the public interest in the appellant's deportation.

7. The appellant's appeal against the respondent's decision was heard in the First-tier Tribunal on 9 September 2016 by First-tier Tribunal Judge Moore. An adjournment application was made on the basis of uncertainty as to the care arrangements for KF and the Tribunal was informed that the local authorities had reluctantly supported the making of a Special Guardianship Order application in favour of only ECF, given the uncertainly of the appellant's immigration status and the fact that she may be deported. The adjournment request was refused and the appeal proceeded, on human rights grounds only. The judge heard from the appellant, her husband ECF and her daughter SF (aged 15). The evidence given before the Tribunal was that KF's mother AF was not permitted to see KF unsupervised due to substance abuse and that KF had therefore been living with the appellant and her husband and was like their daughter. It was claimed that ECF would be unable to provide adequate care for KF as well as SF if the appellant were deported as he was the sole breadwinner and worked full-time and feared that KF and SF would end up in care. In relation to the index offence, the appellant maintained her innocence and it was noted that she had not been convicted of any other offences since then. 16 years had elapsed since the offence and the appellant was not a risk to the public. The judge noted that the appellant was not pursuing the grounds of appeal based on her medical condition, which she had unsuccessfully pursued in her previous deportation appeal in October 2005. He gave consideration to the findings made by the judge in that previous appeal.

8. Judge Moore considered the provisions of paragraph 399(a) and (b). He did not accept that it would be unduly harsh for SF and KF to remain in the UK whilst the appellant was deported, as they could remain with ECF. He did not accept the evidence of ECF that he would be unable to care for the children. He did not accept that it would be unduly harsh for ECF to remain in the UK if the appellant was deported. With regard to paragraph 399A the judge noted that the appellant had not been lawfully present in the UK for most of her life, he did not accept that she was socially and culturally integrated in the UK and did not accept that there would be very significant obstacles to her integration in Ghana. The judge did not accept that the situation with KF was a very compelling circumstance outweighing the public interest in the appellant's deportation. He dismissed the appeal on all grounds.

9. The appellant sought permission to appeal Judge Moore's decision to the Upper Tribunal on the grounds that he had failed to give proper consideration to the rights of the appellant's husband and children and that his consideration of the best interests of the children was not realistic.

10. Permission to appeal was initially refused by the First-tier Tribunal, but was subsequently granted on 5 December 2016 by Upper Tribunal Judge Plimmer on the grounds that the judge had arguably failed to assess the best interests of the appellant's daughter and granddaughter and had failed to consider the impact of the appellant's deportation on her granddaughter as at the date of the hearing.

Appeal hearing and submissions

11. The appeal came before me on 13 January 2017. Mr Claire sought to adduce further evidence, namely a draft order of the East London Family Court to the effect that a Special Guardianship Order was being made in favour of ECF following judgment of the Court on 25 November 2016, a letter from KF's social worker at Newham Children's Services confirming cessation of involvement with the family further to the making of the Special Guardianship Order and a letter addressed to the appellant confirming the same. However, as I advised Mr Claire, that was only relevant if the decision of Judge Moore was set aside and was to be remade and was not relevant to the error of law issue.

12. Mr Claire relied on an email exchange at page T1 of the respondent's appeal bundle in regard to the care of KF, referring to the current care plan in which the appellant and ECF were her carers and suggesting that that care plan would have to change if the appellant were deported. Mr Claire submitted that the assessment of KF's circumstances if the appellant were deported was so stark that it could only lead to one conclusion, namely that it would be unduly harsh for KF if the appellant were deported as she would be put into care. He submitted that Judge Moore had not given proper consideration to the consequences of the appellant's deportation, on both KF and SF. The judge had also failed to consider that the appellant's offence had been committed 16 years previously and that she had committed no further offences since then.

13. Mr Kotas objected to the last point made by Mr Claire as it had not formed part of the grounds of appeal nor the basis for the grant of permission, which was restricted solely to the consideration of the best interests of the children. Mr Kotas submitted that the grounds and submissions made by Mr Claire were simply a disagreement with the judge's decision. The judge had given specific consideration to KF's situation at [46] and [47] and to SF's situation at [44]. He had conducted a balancing exercise in consider the issue of "unduly harsh", as consistent with the approach in MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705, which approved KMO (section 117 - unduly harsh) [2015] UKUT 543. The judge was entitled to conclude as he did.

14. I advised the parties that I found no error of law in Judge Moore's decision and was upholding the decision. My reasons for so doing are as follows.

Consideration and findings.

15. Before turning to the substantive matters I have noted that Upper Tribunal Judge Plimmer, in granting permission, omitted to deal with the timeliness issue that had arisen with respect to the permission application before the First-tier Tribunal. This was not raised at the hearing me, but for the sake of completeness it needs to be addressed and I have therefore extended time in relation to the permission application in light of the explanation provided by the appellant and in the interests of justice, pursuant to rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

16. I also agree with Mr Kotas that it was not open to Mr Claire to raise further grounds in his submissions which had not formed part of the grounds of appeal or the grant of permission. The basis upon which permission was granted was in relation to the judge's consideration of the best interests of the children. That was the relevant issue before me.

17. The appellant's case is that Judge Moore erred by failing to give proper consideration to the best interests of the children, SF and KF. However it seems to me that the judge plainly did give full and careful consideration to the best interests of the children. Indeed the judge's decision was largely devoted to that particular issue, with his consideration of the matter commencing at [43] subsequent to his consideration of the findings made by the Tribunal in the appellant's previous deportation appeal and a consideration of the nature of the appellant's offending.

18. At [41] and [44] the judge considered the circumstances relating to SF, noting at [41], in terms of the principles in Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09, that the appellant's deportation would not result in SF being required to leave the UK as she could remain in the UK living with her father ECF. The judge concluded, at [44], that it would not be unduly harsh for SF to remain in the UK without her mother, and he gave cogent reasons for so concluding, rejecting the claim made by ECF that he would not be able to care for her.

19. At [46] and [47] the judge gave detailed consideration to KF's circumstances, considering in particular the care protection plan put in place by Newham Social Services and the correspondence referred to by Mr Claire at Annex T in regard to KF's care. Mr Claire submission was to the effect that the appellant's deportation would result in KF having to go into care, which he said could not be found to be anything other than unduly harsh, but the evidence he referred to at Annex T and the evidence before the judge did not confirm that that was the case. On the contrary the judge noted the evidence that Newham Social Services had supported the making of a Special Guardianship Order application in favour of ECF alone, given the uncertainty of the appellant's immigration status and the fact that she may be deported, suggesting that KF could remain in ECF's care. The judge also noted, in any event, the relevance of the local authority being aware of KF's needs and the possibility of the appellant being deported so that plans would be put in place for her care if that occurred.

20. Furthermore, and as Mr Kotas submitted, Mr Claire's approach was consistent with the case of MAB (para 399; "unduly harsh") [2015] UKUT 435, which he had relied upon before the First-tier Tribunal. That case had since been discredited in MA (Pakistan) in favour of KMO, in which the correct approach to the question of "unduly harsh" was not to consider the best interests of the child as determinative, but to consider it as part of a balancing exercise, albeit as a primary consideration. That is exactly what the judge did at [48]. There were clearly significant public interest considerations in the appellant's case weighing against her, including her seriously adverse immigration history and breach of a deportation order, her use of different identities and her criminal offending. The judge was entitled to consider these factors when assessing the question of "unduly harsh", although it is clear that the best interests of the children remained in the forefront of his mind and a primary consideration.

21. It seems to me, therefore, that the judge gave full and careful consideration to all relevant matters and reached a conclusion that was open to him on the evidence before him. For all of these reasons I conclude that the grounds of appeal do not disclose any errors of law in the First-tier Tribunal's decision.

DECISION

22. The appellant's appeal is accordingly dismissed. The making of the decision of the First-tier Tribunal did not involve an error on a point of law, such that the decision has to be set aside. I do not set aside the decision. The decision to dismiss the appellant's appeal therefore stands.

Anonymity

The First-tier Tribunal made an order for anonymity. I maintain that order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed Date
Upper Tribunal Judge Kebede