Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10596/2016

THE IMMIGRATION ACTS

Heard at Field House
On 25 April 2019

Decision & Reasons Promulgated
On 08 August 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

Mr Deonarine Sukul
(anonymity ORDER NOT MADE)
Appellant
and

THE Secretary of State FOR THE Home Department
Respondent

Appearances:

For the Appellant: Ms Sood, Counsel
For the Respondent: Mr Clarke, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, a national of Guyana, date of birth 1 January 1968, appealed against the Respondent's decision, dated 9 November 2015, to make a deportation order because the decision to deport him placed the UK in breach of its obligations under the European Convention on Human Rights.
2. It was plain, and it has never really been argued to the contrary, that there was a wholly proper basis for the deportation order, given the provisions of Section 32(5) of the UK Borders Act and the fact that the Appellant had been convicted of criminal offences which had led to his being sentenced to eight years' imprisonment on 14 June 2013. The offences appear to have occurred in 2011. It therefore followed that there was an important and strong case in favour of his deportation. As such therefore the relevant provisions of the Immigration Rules, particularly paragraphs A398, 398C, 399(a) as well as 399A, fell to be considered.
3. His appeal came before First-tier Tribunal Judge Beech who on 26 March 2018 allowed the appeal on Article 8 ECHR grounds. Permission to appeal was granted in the Upper Tribunal on 20 December 2018 and I considered the error of law issues at a hearing on 5 March 2019.
4. I concluded that the judge had provided a detailed and considered decision, that all findings of fact were to stand but that I concluded the judge had not sufficiently reasoned why the provisions of Section 117C (6) of the NIAA 2002 applied. I did not disagree with the law which the judge applied, so much as the sufficiency of the reasoning that was given. The relevant relationship between the need to provide circumstances which are very compelling circumstances over and above those provided within paragraphs 399 (unduly harsh) or 399A(c) which may in short be referred to as the very significant obstacles to integration into Guyana are understood and by the provisions of Section 117C (6) as the judge correctly pointed out the public interest requires deportation unless there were very compelling circumstances, over and above those described in Exception 1 or Exception 2 of Section 117C(4)(5). The findings made by the judge on Exception 1 (D66-67) and Exception 2 (D 60-61) stand.
5. The relationship under the Rules was clarified by NA Pakistan [2016] EWCA Civ 661 in which the Court of Appeal rejected the Upper Tribunal's interpretation of Section117C(6) of the NIAA 2002 , with reference to serious offenders under the legislative provisions. The Court of Appeal stated "[58]?.. Matters relevant to an assessment whether a case falls within Exception 1 and Exception 2 may also be relevant to the assessment under Section 117C(6) where there are very compelling circumstances over and above those described in Exceptions 1 and 2." The Court of Appeal has rejected the approach that the considerations must be, in effect, greater than the circumstances which to qualify under Exceptions 1 or 2.
6. It was conceded before the Court of Appeal by the Secretary of State that the evidence does not necessarily have to be over and above that which was of the very significant obstacles to integration but sufficient to show that it was a truly exceptional case when assessing the Article 8 issues of proportionality.
7. For the avoidance of doubt I have reached my conclusion in remaking this case on the basis of the findings of fact fully and extensively set out by Judge Beech in her decision (D), of which there was no material criticism by the parties. Judge Beech helpfully set out the background of the Appellant's presence in the UK and there was no challenge to the findings that she made that such was his history within the United Kingdom that within the terms of Exception 1 (Section 117C(4) ) there were very significant obstacles to the Appellant's integration into Guyana, the country to which he was proposed to be deported(D62-68). Similarly there was no material challenge to the judge's findings on the genuine and subsisting parental relationship with the qualifying children(D50) (Section 117C (5)), of whom I was told the eldest A, date of birth 11 December 2004, had commenced living with his father, whilst his father maintained contact, as the judge had found, with the child M, date of birth 10 February 2007, (D50). The Appellant's involvement in caring on a full-time basis for child A was not materially challenged before me. The Judge found the Appellant also had a genuine and subsisting parental relationship with his three older children who were not qualifying children (50) for the purposes of Section117C.
8. It seemed to me that that change in circumstance of A was undoubtedly material and gave more weight to the issue, which the judge had considered, of the impact of the Appellant's removal on the children and their best interests as much as to evidence relating to the ability of the mother of A and M to cope with bringing the children up on her own.
9. Ms Sood, Counsel for the Appellant, argued much the same points on the legal issues and the facts before me as had been put to First-tier Tribunal Judge Beech. Similarly, before me, the judge's findings on whether it was unduly harsh for the children to live in Guyana were not challenged (D60). I note (D61) that the judge found the evidence did not show the effects of the deportation of the Appellant on the children would be unduly harsh if they remained in the UK without the Appellant. I take into account the factual change that has occurred, not least with A no longer remaining with his mother. This was a matter upon which there was evidence at the hearing and it did not seem to me that Mr Clarke was arguing that that change in circumstances did not bear on the issue of whether it was unduly harsh to separate the Appellant and the children, particularly A.
10. As I have indicated, the Judge very fully and extensively set out the obstacles to integration and why Exception 1 would apply. I take the view that the emphasis to be given to the relationship with A and the role the Appellant was playing to a greater extent was material to the issue of unduly harsh. I concluded that it would be unsettling indeed for the child A but given the relatively recent nature of that relationship in terms of living with his father, but it has not elevated that element of the case to being unduly harsh in terms of separation of the Appellant from A or M for the purposes of Exception2 (Section 117C (5) ).
11. I, therefore, following the approach helpfully identified in the case of Hesham Ali [2016] UKSC 60, have taken the judge's findings and used them as a platform for my own conclusions on whether there are circumstances over and above those identified within Section 117C (6) of the NIAA 2002.
12. The judge accepted that there was a genuine and subsisting relationship between the Appellant and A and M, as well as with his older children by a different relationship. Those older children were adults. The judge accepted that context and the role that the Appellant played in the life of his mother. There was no doubt that the Appellant's criminality was of a very serious nature, involving untold potential for damage to UK society and people living within it, as well as confidence in society.
13. The following points were made on Appellant behalf. First, he has not reoffended. Secondly, he understood and has insight into the significance of his criminality. He has been rehabilitated. Thirdly, that the Appellant played an active role in the care of his children and whilst of course he has not been able to work he has supported them in other ways. To return him to Guyana would effectively sever meaningful contact with A and M. Fourthly, the positive element was the direct approach that the Appellant has taken in the upbringing of A in terms of giving him guidance, notwithstanding his own criminality. At least some confidence can be found in that his three older children are all law-abiding and responsible individuals.
Fifthly, in his favour was said to be the fact that it would be very difficult, given his age (about 51 years) and when he left his home country aged 14, that he would have difficulties in making a life for himself there in Guyana. Sixthly, it was said that he has rehabilitated himself and whilst the public would have concerns about a convicted foreign criminal remaining in the United Kingdom he will not reoffend. Seventhly there was also a public interest in the children be brought up with both parents playing their roles.
14. I accept, in his favour, the impact of his criminality which he understood upon family members in the UK. Although he may have to a degree exaggerated it he has been involved at least in care for his mother. I consider that the Appellant had been maintaining contact with his children who at least one if not both visited him when in prison, he has family support from an older half-sibling and he has meaningful relationships within his family in the UK. I take into account the positive comments made by the Probation Service and the position of a potential employer but it seemed to me essentially those are neutral points and to be expected of someone if they seek to show circumstances which outweigh the public interest in removal and show that the Respondent's considerations are disproportionate.
15. It did not seem to me that the children M and A could reasonably be asked to go and live in Guyana, even if their mother agreed which she did not, but plainly the impact on them would be of some significance. The Appellant has moved away from his criminal associations and has managed to obtain work trials and been offered employment not just from charitable organisations but also a business. I find the Appellant has turned his life around and plainly has done so in the context of the greater understanding of the consequences of his criminality on his two minor children and wider family.
16. The Appellant continued to be involved in the life of child M, in having contact and dealing with for example, her homework/timetable. The Appellant said, which was not challenged, that since his release from prison, healthcare concerns about his daughter M have diminished as she has greater confidence in her contact with him. I note that the Appellant was the testamentary and spiritual guardian to his sister's five children in the UK and the extent to which he was involved in their lives. I noted the child A has reached a relatively more important period in his educational development and there was no challenge to the evidence of how the Appellant expressed his control, organisation of his son's life, the part he plays in caring for him and controlling his lifestyle in a manner which only a 'hands-on' father could probably do.
17. It seemed to me that these factors do demonstrate circumstances which show that they take this matter over and above the circumstances arising under Section 117C(4) Exception 1 and that the impact of his being deported, in terms of the adverse effect upon his two British children whose best interests lie in remaining in the UK, demonstrate that they are sufficient to meet the requirements of the Section 117C (6) . I find these matters show that there are very compelling circumstance over and above those in Exception 1 which outweigh the public interest in deportation
18. For these reasons I find that the appeal should be allowed. I have not set out the many pages of the judge's careful analysis of the evidence but since her findings stand and there was no substantive challenge by Mr Clarke to the substance of any additional evidence I heard and accept it in that context.
DECISION
The appeal is allowed on Article 8 ECHR grounds.
ANONYMITY ORDER
No anonymity order was sought and none is required.
FEE AWARD

No fee was paid and therefore no fee award is appropriate.

Signed Date 20 July 2019

Deputy Upper Tribunal Judge Davey