Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12627/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 September 2018
On 25 October 2018

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

the Secretary of State for the Home Department
Appellant
and

CSB
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr D Mills, Senior Home Office Presenting Officer of the Specialist Appeals Team
For the Respondent: Mr G Goddard, Legal Representative of the Citizens Advice Bureau (London)

DECISION AND REASONS

1. I shall refer to the Respondent as "the Appellant" throughout this decision as she was known before the First-tier Tribunal. I have anonymised the Appellant because the case involves children. The Appellant is a citizen of Jamaica. Her date of birth is 12 September 1981.

2. On 19 August 2015 the Respondent decided to deport the Appellant pursuant to Section 5(1) of the 1971 Act. On 2 November 2016 the Respondent certified the Appellant's asylum claim under Section 72 of the 2002 Act, her refused her human rights claim. The Appellant appealed. Her appeal was allowed by First-tier Tribunal Judge Goodman, following a hearing at Taylor House on 14 December 2017. It was allowed under Article 8. The judge found in favour of the Appellant in respect of The Section 72 certification. The appeal was dismissed on asylum grounds. The decision was promulgated on 10 January 2018. The Secretary of State was granted permission by Judge of the Upper Tribunal Storey on 6 August 2018.

3. There is a long immigration history which I will summarise. The Appellant arrived in the UK on 3 February 2001. She sought leave to enter as a visitor and was refused. She was granted temporary admission. Her removal was arranged to take place on 11 February 2001. She failed to report as required and failed to maintain contact with the Home Office. On 27 November 2006 she was convicted at Canterbury Crown Court of six counts of supplying a class A drug. On 16 January 2007 she was sentenced to two years' imprisonment on each count to run concurrently.

4. On 29 January 2013 she was issued with a notice of a decision to make a deportation order. On 8 February 2013 she appealed against the deportation order. Her appeal was successful is so far as the Tribunal found that the decision was not in accordance with the law.

5. On 23 August 2013 the Appellant committed further offences relating to child cruelty and neglect. There was no information forthcoming clarifying the details of the charge. She was convicted in the Magistrates' Court. Mr Mills confirmed to me that the victims were the Appellant's children and she was sentenced to twelve weeks on each offence to consecutively and therefore in total she received a custodial sentence of 12 weeks.

6. On 19 March 2014 the Appellant claimed asylum. This application was refused on 22 May 2015. On 5 June 2014 she made a claim to have been trafficked and this was refused on 27 June 2014. In response to the decision of the FtT that the deportation order was not in accordance with the law, the Respondent issued a deportation decision on 19 August 2015.

The decision of the FtT

7. The judge set out the factual summary at paragraphs 12 to 39 of her decision. From this it is clear that by any account the Appellant had a very difficult childhood in Jamaica. She came here at the age of 19 with a man referred to as RS for what was to be a three- week visit. She absconded. Her evidence was that she remained here working in a brothel and eventually managed to escape. She started a relationship with AK, a citizen of Jamaica, and in May 2002 gave birth to her daughter, C. She became embroiled in drug-related violence and her evidence was that she had been raped by AK and as a result of this, in August 2004 she gave birth to a son, K.

8. The Appellant became involved in drug dealing which resulted in 2006 to her being charged with six counts of supplying a class A drug. There was evidence from the prosecution that she had supplied drugs to a 14 or 15- year old. When sentencing the judge stated that there was "an element of coercion from somebody not before the court" but did not accept that the Appellant was simply a runner. The sentencing judge took into account that she was the mother of two young children and there was before him a very good report from her time in custody. The sentencing judge said that he had to pass a sentence of two years. The Appellant served just under a year in prison. She refused early release with a tag for fear of reprisals from AK who might think she had given police information about him. AK was subsequently deported in 2009.

9. The Appellant was released from prison in August 2007. She started a relationship with a Jamaican man and gave birth to a girl, KW, in February 2009. In 2010 she gave birth to a boy, L, by a different Jamaican man.

10. The judge at paragraph 21 found that the Appellant downplayed the offences committed in 2013, considering the sentence that she received and that as a consequence her four children were taken into care and had not been returned to her. There was evidence before the judge that in December 2013 there was an order made in the Family Division of the High Court placing three of the four children in the care of the London Borough of Southwark. KW at the time was living with her father.

11. The Appellant was released from prison in March 2014. She had a relationship with another Jamaican man. She gave birth to her fifth child, N, on 24 November 2015. The Appellant and the father of N travelled to Scotland in the hope that the birth would not be noticed by the social services, however, ultimately N was taken into care and fostered with a view to adoption. It was considered that she would suffer significant harm in the care of her parents.

12. In June 2016 the Appellant went to live in the manse of Peckham Park Baptist Church with the pastor, Anne Luther, and an older couple who live there. The Appellant had split up with N's father and she was homeless and without recourse to public funds. The judge noted that this period had been good for the Appellant because it had offered her a period of stability. The judge acknowledged that the Appellant had been baptised and was a successful speaker talking to others in the community about past difficulties (see paragraph 26). The Appellant had a very positive reference from Ms Luther which the judge took into account. There was a final hearing in June 2017 when an order was made that N was to live with the Appellant subject to twelve months' supervision by Southwark Social Services. The judge attached weight to the positive changes that had been recognised by the Family Court.

13. N joined her mother in the manse. N's father had supervised contact every two weeks. The judge attached weight to the evidence of the child's guardian, David Abrahams. Mr Abrahams supported the chance for N to be returned to the Appellant "because of the very positive changes" that the Appellant had made to her lifestyle. In his view she had not simply "learned the language of therapy".

14. At the time of the hearing children K and L (aged 13 and 7) were in foster care. At paragraph 32 the judge recorded that it was the Appellant's ambition to apply one by one for the children to be restored to her care, but the social services took a more cautious view and that she was not assessed to be in a position to care for C, K or L, but it was at least possible at some stage that C could go and live with her. The plan was that K and L should remain with their foster families and that the Appellant had contact with them six times a year. She was generally consistent in attendance and the evidence from social workers was that they looked forward to visits. KW's father had not complied with the arrangements for access and there was no subsisting relationship between the Appellant and her daughter, KW.

15. The judge attached weight to the report of C's social worker, Clare Ryan from Southwark Social Services dated 30 November 2017. She had organised for the Appellant to be placed at the Baptist Church. C had been in a secure unit. She was transferred with the Appellant's assistance to a residential home. There was an attempt to place her with her mother in early 2016, but this had not been successful. C had become violent towards the Appellant. C had supervised contact with the Appellant six times a year, however she had informal unsupervised contact with her mother by phone and face-to-face. It was Clare Ryan's evidence that C uses the Appellant as a source of support and makes contact in times of crisis. The Appellant had been co-operative with the social services and informed them when C had absconded from her home and gone to her. Clare Ryan commented that C did not have other family or a foster placement and she "really does benefit from the relationship she has with her mother and the ability to have a flexible contact arrangement". In addition she enjoyed her relationship with N. Clare Ryan's evidence was that if the Appellant "did not remain in the UK it would have a particularly negative impact on C."

16. At the date of the hearing before the judge the Appellant was no longer living at the manse. She had moved out to live with N in a flat near to the church. She was visited there by Ms Luther who confirmed that she was managing and she still attended the church in order to visit Ms Luther and an older couple. The Appellant kept up participation in the church and with the local community. In Ms Luther's view the Appellant had made permanent changes to her life.

17. At paragraph 34 the judge set out the Appellant's relationships in Jamaica noting that the only person with whom she had had a warm relationship was her grandmother, now deceased. The judge found that the Appellant could return to Jamaica, but found that her fear of AK was genuinely felt by her. The judge found at [60] that she would not have close supportive family or the support from the church that currently benefited from.

18. The judge found that the Appellant had rebutted the presumption under Section 72 of the 2002 Act. The judge attached significance to the fact that she had not been convicted of a drugs offence in eleven years. He found at paragraph 67 that it was not known if drugs or violence were involved in the 2013 offences, but the Respondent in part relied on them. The judge concluded that it was likely that the facts surrounding these offences did not involve drugs. The judge attached weight to the fact that the Appellant was older no longer keeping the coercive company of her first partner (AK). The judge found, at paragraph 67, that "in the company she keeps at present it was implausible that she would reoffend." The judge also found that the Appellant was determined to keep her youngest daughter and would know this would change if she was to reoffend and that in light of this there was an incentive. The judge concluded, at paragraph 67, that the likelihood of repetition of offending was small and that the Appellant was not a danger to the community and as such the presumption had been rebutted.

19. The judge made the following findings in relation to paragraph 399 of the Rules:
"80. Moving to paragraph 399, the first question is whether she has a genuine and subsisting parental relationship with a child under 18 within the UK, who is either British or has lived in the UK continuously for at least 7 years. The youngest child, N, the only who lives with her, is not British, and has only recently turned 2. It could not be said at present that her ties with Britain are substantial, and prime facie her best interest is to be with her mother. It remains to be asked whether it is unduly harsh for N to live in Jamaica, or for the child to remain in the UK without her. As to N's welfare in Jamaica, of course generally children grow and thrive there as they do in the UK. However, N, was placed with her mother only six months ago, and that was premised on her mother having changed her circumstances dramatically, and established a regular way of life, supported by the church community. There must be some doubt whether the Appellant would have the resilience to continue providing a stable and structured home for N if she had to return to Jamaica without close and involved family or church support, and without means of financial support, given that for much of her adult life she has struggled to do so, and particularly in the period between 2007 and 2013. N is no longer in care, and could depart for Jamaica with her mother; it may be questioned whether it is in N's best interest, rather than remaining here in the church community, to return. The question under the rules is whether it would be 'unduly harsh' for N to live in Jamaica, or to remain in the UK without her mother. It may be unduly harsh, if her mother's morale collapses in the struggle to settle in Jamaica, which will be coupled, whether well-founded or not, by fear of violence. The Appellant has been found to be strong and resilient by the social workers where her children's best interests are concerned, but without her current supportive arrangement she may not be equal to the challenge. If N remains in the UK, she will return to a foster home and is likely to be adopted. At the age of 2, parting from the mother to whose care she has recently been restored will be harsh, but not unduly so.
81. Of the next three children, she has contact six times a year with two of them, and none with the third. This is contact which can be maintained by telephone, Skype, and so on, without damaging the children unduly: they would still know she cared for them.
82. The eldest child, C, is another matter. Although she has not lived with her mother for 4 years, it is possible to say there is a genuine and subsisting parental relationship, though not a conventional one, it is real, and it is the only parental or quasi-parental relationship that C has. On the evidence of C's social workers, C contacts her mother informally as well as the formal access, and does so when she is trouble, and it is rewarding contact. It can be said here that it would be unduly harsh for C to be deprived of the only non-institutional relationship she has in the UK. Without it, her life, which in adolescence has been marked so far by disturbed behaviour, school exclusion and a secure unit, (which may be causally related to her mother's past inadequate parenting) may not recover any benchmark of normality. It is not clear that C can readily relocate to Jamaica and join her mother in two and a half years' time when of age: she has lived in the UK all her life, and though familiar with some Jamaican culture from her mother's associations, she has attended British schools and is otherwise familiar with British culture. She has Jamaican nationality at present. Her father may be there, but he has played little part in her life.
83. As 399A is met, with regard to C at any rate, it is necessary to weight (sic) and balance the factors for family life and public interest. The best interest of C is to have ready access to her mother, and to a lesser extent, her baby sister. This is her only family life. That can only be achieved for the time being and possibly longer, in the UK. The best interest of N are to be with her mother in the present set-up; being with her mother in Jamaica carries a real risk of a return to chaotic living arrangements which will not be in her interests and where she might be better off being parted now, though that is hard when the Family Court only recently decided she should live with her mother. For reasons already stated, less weight should be attached to the other children's interest. The claimant's conduct since 2016 should carry some weight: several others attest to her acknowledgement of past fault and serious effort to change her behaviour in order to keep her child. So should the time that has elapsed since the drug offences, and the improbability of recurrence. Less weight should be attached to the public interest that she is to a danger to the community (sic). As for immigration control, she has never been here lawfully and misled the courts about her status in 2016-7. Some weight should be attached to that. Weighing the family life factors against the public interest, the children's best interests, C in particular, prevail."
The Grounds of Appeal

20. The Secretary of State's grounds of appeal are twofold. It is argued in the first ground that the judge failed to properly apply the unduly harsh test as defined by the Court of Appeal in MM (Uganda) [2016] EWCA Civ 617 in respect of C.The second ground argues that the judge did not properly assess the public interest taking into account that deportation in pursuit of preventing crime and disorder is not to be seen as one dimensional in effect. It has the effect not only of removing the risk of reoffending by the deportee, but also of deterring other foreign criminals. The deportation of foreign criminals preserves public confidence in a system of control whose loss would itself tend towards crime and disorder. The judge has failed to give weight to the required public interest. There was no challenge to the certification decision.

Submissions

21. I heard oral submissions from Mr Mills. Mr Mills conceded that the judge had factored into the proportionality assessment the public interest at paragraph 83. However, inadequate weight has been given to the public interest and the judge did not recognise the high hurdle involved in satisfying the unduly harsh test. Mr Mills said that there was a structural error in the assessment of proportionality with reference to unduly harsh, but conceded that this alone was not sufficient to give rise to a material error. The material error arises from the failure to place sufficient weight on the public interest.

22. I heard submissions from Mr Goddard. He relied on the Appellant's Rule 24 response. Mr Goddard's submissions were essentially that the judge considered all relevant circumstances. He referred me to paragraphs 77, 16, 23, 79and 83 of the decision. He relied on Ali v Secretary of State for the Home Department [2016] 1 WLR 4799 (the Hesham Ali case) at paragraph 70 where Lord Wilson expressly disavows his previous use of the term "society's revulsion at serious crimes" as being "too emotive a concept to figure in the analysis".

The Legal Framework

23. As Lord Reed JSC pointed out at paragraphs 3 to 9 of his judgment in the Hersham Ali case, Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Section 5(1) provides that, where a person is liable to deportation under Section 3 (5), the Secretary of State may make a deportation order against him. Further, Section 32 of the UK Borders Act 2007 (the "2007 Act") requires the Secretary of State to make a deportation order if its provisions are satisfied and none of the exceptions in Section 33 apply. There is no dispute in this case that the Appellant is a foreign criminal for the purposes of Section 32. Paragraph 398 of the Immigration Rules applies which reads as follows:
"398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
?
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) ? the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A".
24. Paragraph 399 reads as follows:
"399. This paragraph applies where paragraph 398 (b) or (c) applies if -
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported;".
25. Since 28 July 2014 where a court or Tribunal is required to determine whether a decision made under the Immigration Act breaches a person's Article 8 rights and as a result, would be unlawful under Section 6 of the Human Rights Act 1998 1998, the provisions of Section 117A-D Nationality, Immigration and Asylum Act 2002 (the "2002 Act") apply. When considering what is defined as the "public interest question", meaning the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2), the court or Tribunal is required to have regard, in all cases, to the considerations set out in Section 117B and in cases concerning the deportation of foreign criminals, to the considerations set out in Section 117C; Section 117A.

26. Where relevant, Sections 117B and C provide as follows:
"117B Article8: public interest considerations applicable in all cases:
(1) The maintenance of effective immigration controls is in the public interest.
?
(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
?
117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ('C') who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
?
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
?"
27. The meaning of "unduly harsh" in paragraph 399 of the Immigration Rules and Section 117C(4) of the 2002 Act was considered in MM.Having stated that the phrase is an ordinary English expression, the meaning of which is coloured by context, Laws LJ with whom Vos and Hamblen LJJ agreed went on to state that the context invited emphasis on two factors, being the public removal of foreign criminals and the need for the proportionate assessment of any interference with Article 8 rights; see paragraphs 22 and 23. Laws LJ went on to say:
"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."
28. Lord Reed at paragraphs 44 and 46 of his judgment in the Hesham Ali case stated as follows:
"44. Fifthly, in considering the issue arising under article 8 in the light of its findings of fact, the appellate authority should give appropriate weight to the reasons relied on by the Secretary of State to justify the decision under appeal. In that connection, Lord Bingham gave as examples a case where attention was paid to the Secretary of State's judgment that the probability of deportation if a serious offence was committed had a general deterrent effect, and another case where weight was given to the Secretary of State's judgment that the Appellant posed a threat to public order. He continued:
'The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.' (para 16 of Huang v Secretary of State for the Home Department [2007] UKHL 11)
?
46. These observations apply a fortiori to tribunals hearing appeals against deportation decisions. The special feature in that context is that the decision under review has involved the application of rules which have been made by the Secretary of State in the exercise of a responsibility entrusted to her by Parliament, and which Parliament has approved. It is the duty of appellate tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. But, where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, they should attach considerable weight to that assessment: in particular, that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender's deportation almost always outweighs countervailing considerations of private or family life; that great weight should generally be given to the public interest in the deportation of a foreign offender who has received a custodial sentence of more than 12 months; and that, where the circumstances do not fall within rules 399 or 399A, the public interest in the deportation of such offenders can generally be outweighed only by countervailing factors which are very compelling, as explained in paras 37-38 above."
Conclusions

29. The judge directed himself on the law in relation to Article 8 in some detail at paragraphs 50 through to 58. There is no challenge to the judge's self-direction. The judge found that it would be unduly harsh for C to be separated from her mother. It was not argued that C could go with her to Jamaica. That was clearly not an option open to her whilst she was in the care of the social services. To remain here without her mother was found by the judge to be unduly harsh. N was not a qualifying child at that time. The judge found it is in her best interest to be with her mother. She found that it was unduly harsh for her to go to Jamaica. She found that it would not be unduly harsh for her to stay here without her mother (and to go back into foster care). L and K may be qualified, but the judge found that contact could continue if she were to be deported. The issue raised in the grounds relates to C. The judge did not make a clear finding about C best interests, but reading the decision, it is clear that she found they would be served by her mother remaining in the UK

30. The judge erred in assessing unduly harsh in the context of C. The assessment is not in accordance with MM because the judge did not factor into the assessment the public interest. Mr Mills conceded that this was a structural error which did not in itself give rise to a material error of law. The judge did not conclude that the appeal should be allowed on the basis that deportation would be unduly harsh in respect of C, but went onto consider proportionality, taking into account the public interest.

31. The judge directed herself at paragraph 51 in respect of Section 117C acknowledging that more serious the offence the greater the public interest in deportation. A proper reading of the decision (rather than focussing on the last paragraphs) make it clear that the judge understood that risk of re-offending was not the only consideration when considering the public interest. The judge acknowledged that the public interest requires deportation. There is no challenge to the judge's self-direction. I am satisfied that considering the decision as a whole the judge took into account all relevant circumstances when assessing the public interest.

32. I am satisfied that the judge factored into the assessment of proportionality the strength of the public interest in deportation. The judge's findings about C and the children generally are not challenged. The Appellant has committed very serious offences involving class A drugs and the prosecution case was that she had supplied to a child. The Appellant's position is aggravated by her having committed further offences in 2013. This was all understood by the judge. The judge was entitled to accept that there had been a complete turnaround in the Appellant's life. The evidence to support, particularly that N had been placed into her care by a Family Court, was strong. There was cogent evidence of the adverse impact of separation on C. As conceded by Mr Mills, the judge was entitled to attach weight to the delay in making a deportation order and the time that had elapsed since the trigger offences were committed and that since the offences in 2013 there had been a significant change in the Appellant's lifestyle. The judge was entitled to attach weight the Appellant's circumstances on return to Jamaica.

33. The judge was entitled to that deportation would breach the Appellant's rights under Article 8. On the findings of the judge, conducting a proper MM compliant assessment of unduly harsh, it would be unarguably unduly harsh for the Appellant to be returned leaving C here without a mother. The judge properly considered the public interest. The error is one of form and not substance. The judge was entitled to allow the appeal under Article 8 as informed by the immigration Rules at paragraph 399 pursuant to s117C (5) of the 2002 Act.

34. At the hearing before me the Appellant submitted further evidence. There is now evidence that the child N is a British citizen, so therefore she is now a qualifying child. There is a letter of 29 August 2018 from Southwark Council Safeguarding Family Support relating to N indicating that N is no longer subject to a child in need plan and her file is now closed. I note the penultimate paragraph of the letter which states as follows:
"I am happy to have met you and wish you well for the future. I'm sure all the hard work you are putting in will pay off! Good luck with everything and please do pass on my best wishes to N and the rest of your family."
35. There was a letter from Southwark Council Safeguarding Family Support of 6 August 2018 relating to child C. It has now been agreed that C can have overnight stays with her mother who is recognised as a supportive factor in C's life, which the council are actively trying to support and maintain.

36. This evidence was not material to the error of law decision. However, had the judge materially erred, I would have taken it into account when remaking the decision. Mr Mills conceded the evidence strengthened the Appellant's case. If I had reconsidered proportionality, I would have reached the same conclusion as the judge.

37. The decision of the FTT is lawful and sustainable. The Secretary of State's application is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Joanna McWilliam Date 22 October 2018

Upper Tribunal Judge McWilliam