Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00089/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 25th April 2017
On 27th April 2017

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

D M A
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr P Nath, Senior Home Office Presenting Officer
For the Respondent: Mr E Wilford of Counsel instructed by Scott Moncrieff Solicitors

DECISION AND REASONS
Introduction
1. The claimant is a citizen of Somalia born in April 1986. He arrived in the UK in September 2004 as the dependent of his mother who had been granted refugee status in 2001. His history of offending started in 2006. He has not committed any offence for which he has been sentenced to a period of imprisonment of 12 months and is not a “foreign criminal” for the purposes of the UK Borders Act 2007. However, on 26th February 2015 the Secretary of State decided his deportation was conducive to the public good and decided to make a deportation order pursuant to s. 5(1) of the Immigration Act 1971, and asked the claimant why his refugee status should not be revoked, cancelled or ceased.
2. On 25th September 2015 the respondent made the decision ceasing the claimant’s refugee status. His appeal against this decision was allowed by First-tier Tribunal Judge SJ Clarke on Article 8 ECHR grounds in a determination promulgated on the 29th April 2016. However Upper Tribunal Judge Smith set this decision aside in a decision promulgated on 27th July 2016 and remitted the appeal to the First-tier Tribunal to be remade on Article 8 ECHR grounds only, as the dismissal of the refugee cessation appeal was not infected by any error of law. The appeal was remade and allowed by Judge of the First-tier Tribunal Higgins in a decision promulgated on 17th February 2017.
3. Permission to appeal was granted by Judge of the First-tier Tribunal Baker on the basis that it was arguable that the First-tier judge had erred in law in allowing the appeal on the basis of the future potential relationship between the claimant and his children given that the claimant did not currently have a parental relationship with his children; and given that he had had no contact with them since 2012/2013; and given that the claimant was subject to a restraining order and a community order to submit to education about domestic abuse; and given that the First-tier Tribunal did not find itself to be in a position to gauge the best interests of the children.
4. The matter came before me to determine whether the First-tier Tribunal had erred in law.
Submissions – Error of Law
5. The grounds of appeal contend in summary firstly that the First-tier Tribunal made irrational, contradictory and speculative findings regarding the best interests of the children at paragraphs 77 and 78 of the decision, when there was no evidence of what was in the best interests of the children bar what was said by the claimant and his family, and in the context of the First-tier Tribunal accepting that the claimant had no parental relationship with his children and no contact with them since 2012. It was an error to find a substantial family life relationship between the claimant and his children in these circumstances. Further the First-tier Tribunal is said to err at paragraph 79 of the decision in finding that the best interests of the children are a paramount consideration, when in a deportation context the child’s interests do not always take precedence over the wider public interest.
6. Secondly the Secretary of State contends that the First-tier Tribunal errs in finding that the relationship the claimant (who is an adult) has with his mother and siblings amounts to a family life relationship for Article 8 ECHR purposes. In Kugathas v SSHD EWCA Civ 31 it was held that there must be more than “normal emotional ties”; and in Singh & Anor v SSHD [2015] EWCA Civ 630 it was said that there must be more than “love and affection”. The First-tier Tribunal fails to identify any circumstances going beyond normal emotional ties.
7. It is therefore argued that the First-tier Tribunal errs in finding that the claimant has any Article 8 ECHR family life ties with the UK.
8. Mr Nath relied upon the full grounds of appeal but argued that there are three principle errors in the decision of the First-tier Tribunal, and helpfully clarified that this was a rationality challenge.
9. Mr Nath argues that the decision of the First-tier Tribunal is irrational for the following reasons. Firstly, that it was irrational to have made a finding that the children’s best interests were to engage with a contact process with their father, the claimant, when the First-tier Tribunal accepted that it was not possible to gauge these best interests at paragraph 78 of the decision. Secondly the possibility of future contact between the claimant and his children was not a factor certain enough to rationally be given any weight when considering the proportionality of the appellant’s deportation as is done at paragraph 79 of the decision. Thirdly the First-tier Tribunal should not have made findings about whether the claimant posed a risk of serious harm if he reoffended given the lack of an OASys and probation evidence as is done at paragraph 76 of the decision. The First-tier Tribunal should have tried to pursue obtaining this evidence themselves or by making directions for the claimant to obtain this.
10. The claimant provided a late Rule 24 notice in which it was argued that the First-tier Tribunal having taken into account a prospective family life relationship between the claimant and his children was entirely consistent with the Strasbourg and domestic jurisprudence, and pointed to the cases of Anayo v Germany [2010] ECHR 2083 and R (Pawandeep Singh) v Entry Clearance Officer New Delhi [2005] QB 608.
11. Mr Wilford added oral submissions arguing that it had been appropriate for the First-tier Tribunal to be clear that they had no personal information from the children but to rely upon the principle that it was right for children to have contact with a parent who responsibly sought that contact through the proper processes at paragraph 78 of the decision. This conclusion was based on evidence set out in the decision that the claimant had sought contact through Southwark Mediation Centre set out at paragraph 36 of the decision and the claimant’s own wider evidence on the issue. Mr Wilford argued it was not irrational to place the finding that it would be in the best interests of the children to allow the claimant the opportunity to pursue contact with his children in the balance with the other issues of his period of lawful residence in the UK from a young age, his lack of any ties/ contact with Somalia and his close private life relationships with his mother and siblings when considering whether his deportation was proportionate at paragraph 79 of the decision. In this consideration weight was given to the public interests in the claimant’s deportation. Once again nothing could be said to be irrational about this decision-making.
12. Finally it could not be said to be unlawful for the First-tier Tribunal to have come to a conclusion that the claimant did not pose a risk of serious harm just because there was no OASys report or probation report. It was part of the duty of the First-tier Tribunal to determine this aspect of the public interest in deportation by considering the evidence the parties chose to place before that Tribunal.
Conclusions – Error of Law
13. The First-tier Tribunal clearly finds that the relationships the claimant has with his mother and siblings are not family life ties in the Article 8 ECHR jurisprudence sense, but simply are a significant part of his private life given that they are particularly close, see paragraphs 67, 70 and 72 of the decision. These were findings that were rationally open to the First-tier Tribunal on the evidence before it.
14. The First-tier Tribunal did not find that the family life ties currently exist between the claimant and his children given the four year period without any contact, see paragraph 71 of the decision. Nor did the First-tier Tribunal find that the claimant had a parental relationship with his children, see paragraph 77 of the decision. At paragraph 79 nothing is said which could be construed as meaning that the best interests of the children were made a paramount consideration: indeed explicit reference is made in that paragraph to the considerable public interest in his deportation due to his criminal convictions.
15. The First-tier Tribunal was satisfied however that the claimant genuinely wanted contact with his children and might be capable of engaging responsibly with the contact process, and that it was generally in the best interests of children to have contact with a father who was interested in having such contact with them, see paragraph 78 of the decision. Given that the claimant did not currently have contact with his children it was not possible for the best interests of the children to be gauged individually: I find that this was why the First-tier Tribunal uses this expression. I find also that it was rationally open to the First-tier Tribunal on the facts before it to find, as they do, that: “it is generally considered in the best interests of child to have contact with a father who is interested in his or her well-being and capable of engaging responsibly in the contact process”.
16. As Mr Wilford has argued there is a duty to consider the future development of family life in the Article 8 ECHR jurisprudence, and R (Fawad & Zia Ahmadi) v SSHD [2005] EWCA Civ 1721 provides a further example of courts respecting this principle. In the circumstances I do not find it was an error of law or irrational to place “some prospect of re-establishing contact” between the claimant and his children as a factor in the balance when considering the proportionality of his deportation. This clearly was but one factor alongside the claimant’s long residence in the UK, his having been last in Mogadishu when he was 5 years old and having no ties with that country, and his important private life relationships with his mother, brothers and sister who are settled in the UK having come here as refugees. There was also clearly no error in not properly considering the public interest in deporting the claimant as someone who had committed crimes: that public interest is described as remaining “considerable” reflecting the detailed account of his criminal behaviour at paragraphs 57 to 62 of the decision. The First-tier Tribunal also directed itself properly with reference to the Supreme Court decision in Hesham Ali (Iraq) [2016] UKSC 60 both in this final paragraph and also earlier at paragraphs 73 and 74. I therefore find that the ultimate decision cannot itself be described as irrational.
17. I do not find that the First-tier Tribunal erred in law in not seeking further evidence from the probation service or OASys about the claimant. These documents would appear not to have come into existence as a result of the relatively low level of his offending, the longest prison term was a period of 8 months imposed in August 2013 and activated in November 2014, probably for breach of a restraining order. It is for the parties to put the evidence before the First-tier Tribunal, and not for that Tribunal to seek evidence, and it was entirely correct when considering the public interest in deportation for the First-tier Tribunal to draw conclusions from the evidence before it with respect to whether the claimant posed a high or low risk of serious harm to the public. It was correct of the First-tier Tribunal to note at paragraph 74 of the decision that the Secretary of State herself had apparently concluded the claimant did not pose a risk of serious harm by not finding he was a “foreign criminal” under the UK Borders Act 2007 on this basis (and also that he was not a foreign criminal on the basis that he was a persistent offender). It was entirely rational for the First-tier Tribunal to conclude on the evidence before it that the risk of serious harm to the public was low in all of the circumstances of this case.
18. I find that the conclusion that the First-tier Tribunal reached in the context of the public interest of the claimant’s deportation was one rationally open to it.

Decision:
1. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
2. I uphold the decision of the First-tier Tribunal allowing the claimant’s appeal.

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the claimant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so in order to avoid a likelihood of serious harm arising to the claimant’s children from the contents of his protection claim.

Signed: Fiona Lindsley Date: 25th April 2017
Upper Tribunal Judge Lindsley