Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-005892

First-tier Tribunal No: PA/04799/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 11th of March 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

EVAN HOLMES
(ANONYMITY ORDER set aside)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Joseph instructed by Leonard & Co Solicitors.
For the Respondent: Ms Rushforth, a Senior Home Office Presenting Officer.

Heard at Cardiff Civil Justice Centre on 19 February 2025

DECISION AND REASONS

1. In a determination promulgated on 19 April 2024 a panel of the Upper Tribunal composed of Mr C.M. Ockelton, Vice President, and Upper Tribunal Judge O’Callaghan (‘the Panel’) set aside a determination of the judge of the First-tier Tribunal who allowed the Appellant’s appeal on human rights grounds against the Secretary of State’s decision refusing him leave to remain in the UK, dated 30 November 2020, relied upon as an exception to the order for his deportation from the United Kingdom.
2. The Appellant is a citizen of Jamaica who was born on 26 April 1978.
3. His immigration history shows he was granted leave to enter the United Kingdom as a visitor on 6 July 2021, valid to 16 July 2021. On 17 July 2021 he claimed asylum although that claim was refused by the Secretary of State on 3 September 2021.
4. The Appellant appealed the refusal which was allowed by the Immigration and Appellate Authority (IAA) pursuant to Article 3 ECHR, resulting in his being granted discretionary leave to remain by the Secretary of State on 4 December 2003. The Appellant was subsequently granted indefinite leave to remain on 17 September 2010.
5. In 2015 the Applicant married his former wife AS although they separated and divorced in 2020. They have two children NM born on 14 March 2014 and EH born on 13 March 2019.
6. The Appellant has also fathered a boy, CC, born on 22 October 2007 following a relationship with SC, and AHS born on 13 March 2006. A further child, CH was born on 26 March 2022 to the Appellant and AT who he claims to be his partner, although in her witness statement she states they are not cohabiting due to the Appellant’s bail conditions.
7. The Appellant has a poor offending history. The Panel record 13 convictions relating to 22 offences, including on 29 November 2019 the Appellant being convicted at Bristol Crown Court on three counts of possessing with intent to supply a controlled Class A drug (Heroin), one count of possessing a controlled Class B drug (Cannabis) and one count of possessing a prohibited weapon for discharge of noxious gas/liquid. On 16 January 2020 he was sentenced to a total of 26 months imprisonment.
8. On 10 February 2020 the Secretary of State served a decision to make a deportation order upon the Appellant who, as a result, made a protection and human rights claim on 19 February 2020. By a decision dated 13 November 2020 the Secretary of State did not accept that the Applicant fell within any of the exceptions set out in section 33 UK Borders Act 2007.
9. The Panel record that on 21 January 2022 the Appellant was convicted of two further offences, driving a motor vehicle with a proportion of controlled drugs over the specified limit, for which he was disqualified from driving for 12 months and fined, and possessing cannabis for which he received no separate penalty.
10. In relation to the scope of today’s hearing, that was identified by the Panel as being limited to Article 8 ECHR alone. The remaining findings of the First-tier Tribunal stand.

Discussion and analysis

11. The preserved findings are as follows. In relation to the Appellant’s claim that he will face a real risk of harm or death on return to Jamaica as a result of his past experiences it was found:

30. I find the risk he faced from gangs were at a higher level in 2003 (as found by the Adjudicator) in part because he was a young man that had become addicted to drugs. He has been claiming since his time in prison that he is drug free and he has tested negative for class A drugs for some time. His characteristics have changed; I find this reduces his level of risk of violence to that of an ordinary person with no real reason to be remembered in Jamaica or to attract adverse interest for a distant past in a country to which, by his own account he has no associates.
12. At [36]:

36. I find that one risk factor in isolation: recent drug dealing activities in Bristol, without the other: physical harm/injury or direct threat of physical harm, is insufficient to show risk of serious harm back in Jamaica. The appellant presents no real evidence of a direct threat to him just weak and vague hearsay. No witness to his fear or account of personal danger despite the fact that he had some limited contact with family members, such as his sister, if not his brother who on his account he does not involve himself with, bearing in mind he has been sent his mother’s death certificate. I find that there is insufficient evidence to the very low standard of proof to show that the appellant has a continuing risk of death and/or serious harm/derogatory treatment in Jamaica due to his past profile or indeed his current profile, having never claimed he had been involved in international drug dealing.

13. At [38]:

“The appellant is not shown by personal or objective evidence that his risk remains high and continuing so many years after leaving Jamaica”.

14. In relation to his ability to settle in Jamaica:

46. I do still find however that there is a level of harshness in relocating to avoid bumping into those who used him that I deal with further below in relation to his family life with his children and their mothers. This in itself does not raise his personal level of risk to serious harm. I find his claim that he has not sent money back irrelevant to a raised level of personal serious harm - contrary and inconsistent bearing in mind his mother passed away in 2006 and his claim is that he had taken no part in organised Jamaican crime for many years or international crime ever and so has not been required to send any money back for any reason. I find that it will be feasible for him to relocating Jamaica. This does not incur an Article 2 and/or 3 risk to him.

15. In relation to the question of whether there is a sufficiency of protection from the authorities in Jamaica:

49. The appellant has not shown insufficiency of protection in light of positive action by the State in Jamaica as he then also confirms that he had not had any significant issues since the determination in 2003 in relation to gangs but that he was an introvert and had isolated himself avoiding people and situations. This is also inconsistent; he is active in his community bearing in mind his past work - drug support worker and social activist, having married and had various relationships and when progressing in prison, undertaking courses. In summary, at Tribunal, he confirmed that he had no problems since. He said at interview it was unlikely that they would come and find him, he is not much of an issue to them R141. I find that this is the situation on return to Jamaica.

16. Having analysed the Appellant’s claim of a risk on return from the gangs in Jamaica it was found:

66. I find that the appellant is not at a continuing risk that amounts to serios harm/threat to his life from gangs in Jamaica or indeed in the UK. The Judge accepted that back in 2003, he would be identified (para 53). I find as per the respondent and the appellant’s evidence that it is only in his early years in Bristol that he came in contact with members of the Jamaican community linked to gangs that wished to harm him and this related to his time in prison back then. He is no longer at risk of identification. I find his evidence vague in relation to one person that he had trouble with long ago. I find his evidence falls short of the reasonably likely standard of proof that the person he refers to in the UK (in the altercation when he first arrived) has any connections back in Jamaica. I find the appellant has not shown this whereas the other facts- no harm or direct threat- and his profile as a family man- indicate that he is no longer at risk of serious harm in Jamaica in 2022 and in relocating to avoid people from his distant past.

67. He did not know the name of the gang his brother was involved with as he was not affiliated or connected in any shape or form. He was asked if he knew where his brother lived and he explained that last time he had heard he was living in Kingston not far from where they used to live together, he did not know other than he was living in Kingston. He was only from a small family in Jamaica (his evidence R127,135), with a brother and a sister, having grown up with his mum who was a cleaner and died in 2016. I find that the appellant is unlikely to be remembered away from the Mountain View area or be at the risk claimed whether from deportees or those still in Jamaica due to the time that has passed. This is also because he has severed his ties to Jamaica. There have been no further incidents of harm to him or physical harm caused by him or that are in any way connected to issues beginning at age 17 years old (R123) when he retaliated to a gang and was first arrested in Jamaica, connected to the Jamaica Labour party or criminal gangs or family in Jamaica and in many years.

68. The last incident of being involved in any kind of physical altercation, on his account is 2-3 weeks after arriving in the UK in 2001 and that was outside a pub. He did not need to go to hospital and he was arrested then having a baseball bat. With no acts of serious violence perpetrated by him or serious violence used against him, I find that by his record and status he is no longer in need of humanitarian protection in the UK, he has not shown that he is at risk of serious harm/ death and his circumstances fall short of an Article 2 or 3 risk.

17. The First-tier Tribunal therefore found the Appellant can return and feasibly relocate to Jamaica without the risk of serious harm. It was found that he has a brother in Jamaica who could ordinarily assist him in overcoming any obstacles to reintegration. The First-tier Tribunal accepted the Appellant would not wish to encounter faces from his formal life [81].
18. In the refusal letter the Secretary of State accepted the Appellant has a genuine and subsisting parental relationship with his two daughters NM and EH.
19. The Appellant’s written evidence stood as his evidence in chief following which he was cross-examined by Miss Rushforth.
20. The chronology shows that despite the Appellant knowing that he is subject to a decision to deport him from United Kingdom he and his partner went on to have another child. I note his explanation that having a child which does not, per se, prevent his removal from the UK.
21. It also emerged from the Appellant’s evidence that he had not discussed with his partner what they would do if he was deported.
22. The Appellant now lived with his partner and he was asked what family she has in the UK, which he confirmed was her brother, sister, and that she had a large family. I do not accept there is any merit in a claim the Appellant’s partner’s family would not be able to help her if he was deported.
23. When the Appellant was asked why he could not go back to Jamaica he claimed his life would be in danger, but that matter is dealt with in the preserved findings and insufficient evidence has been provided to warrant departing from the same.
24. The Appellant’s claim he could not work in Jamaica as his qualifications have been obtained in the UK was not made out. The Appellant is an intelligent individual who has skills which are transferable. He has his own website in the UK as a poet, www.trappistthepoet.co.uk, and it was not made out he could not utilise the skills he clearly possesses. There is a Jamaican poetry archive in the National library of Jamaica, a Poetry Society of Jamaica, and World Poetry Day, Jamaica 2024 is available online provided by the National Library of Jamaica, dated 22 March 2024. There are also annual Jamaican poetry festivals. The Appellant is clearly familiar with social media and the Internet which will give him an outlet for his work, if required. I do not find any merit in the Appellant’s claim that he could not find work or that he will be destitute if he was returned.
25. The Appellant accepted that if he was able to find work he will be able to provide for his family from Jamaica but claimed that was assuming he could get work. I do not find he has established he could not.
26. There was no re-examination no other oral evidence provided although support for the Appellant’s case can be found in the witness statements from a number of sources, all of which have been taken into account.

Discussion and analysis

27. It was not disputed by Ms Rushforth in her submissions that the Appellant’s deportation from the United Kingdom may be harsh upon his children, but it was submitted that it would not be unduly harsh.
28. The fact the Appellant had chosen to have another child in the UK while subject of a deportation order was suggested to be irresponsible, but it is not determinative.
29. Ms Rushforth submitted the Appellant’s partner has family in the United Kingdom who could provide assistance to her when the Appellant is deported. There was nothing from the partner by way of oral or documentary evidence, or from any member of her family, to show that such support would not be available.
30. There is merit in Ms Rushforth’s submission that there was no up-to-date evidence from the schools which the children attend and no expert evidence to corroborate the Appellant’s account that it will be unduly harsh upon anybody if he was deported.
31. Mr Joseph and his submissions accepted there was no up-to-date evidence from an expert but there was material for 2021 - 2022 that the Appellant was relying upon. I accept there is such evidence, some of which is a few years old now, all of which has been taken into account.
32. I accept Mr Joseph’s submission that even though the relationship between the mothers of the children and the Appellant had broken down, even if not amicable, this did not impact on the relationship between the Appellant and the children.
33. The evidence suggests that when the Appellant was imprisoned his relationship with one of the children, CC, became very strained which he had to rebuild upon his release from custody. It was argued by Mr Joseph that the impact upon the child now will be worse, sufficient to amount to deportation being unduly harsh. That child is now 17 years of age and it is said has many issues.
34. Again, there is the lack of expert evidence assisting the Tribunal in relation to the impact upon the child, who will shortly be an adult, if the Appellant is deported.
35. It is also the case that many parents consider it best not tell the children that one of their parents has been imprisoned, or not to give them the whole story. The problem with such an approach is that the child may be confused and not understand what had happened. It is not known whether this was the scenario when the Appellant was imprisoned but it is not implausible that the child, at the age he was at that time, may have taken against the Appellant, leading to a strained relationship, if he thought his father had abandoned him.
36. Although what happened in the past is part of the available evidence, when considering undue harshness it is important to look forward as one is assessing the impact upon family members of the Appellant’s removal.
37. It is accepted that there are no medical issues for the child concerned, and no detailed evidence of the same, and even if the loss of his father figure as a result of the Appellant’s deportation is significant, I do not find it has been established that it will be unduly harsh. It has not been shown that support services in the UK, including the child’s mother, school/college, GP or other professional services, or other family members (if any), would not be available or sufficient to enable this child to understand why his father was no longer available to him as he had been since his release from prison. It is also the case that the Appellant would not be cut off from all communication with his family, although such communication will become indirect unless funds exist to enable an individual to visit. The Appellant will therefore still have an active role in communicating with the children by telephone or video means of communication, although I accept that will depend upon the Appellant having the resources to do so as well as the ability to access to the necessary digital media and the Internet.
38. In relation to E and NM, their mother does not support the Appellant’s appeal at all but does not prevent the Appellant from seeing the children, who he sees at least once a week.
39. There is insufficient medical evidence of any problems being experienced by these children, although I accept there is an attachment, but that the children will remain where they are in the care of their mother who provides adequately for them. I find there is insufficient evidence to show that although they may be very sad if the Appellant is deported and it may be harsh upon them, it has not been shown that it will be unduly harsh.
40. Mr Joseph also submitted that Appellant played a further role in relation to the children based upon their heritage. It was submitted it is the Appellant who facilitates all the children seeing each other as their individual mothers do not. It was submitted that there was no evidence that there was a place in the UK where that could happen if the Appellant was removed, which means that the Appellant’s contact with the children is critical to enabling the siblings to maintain their contact with each other.
41. Although I understand the importance of those of any race understanding their heritage, and the role played by the Appellant in facilitating the same, there is insufficient evidence to show that anybody has been asked whether contact between all the children with each other could be facilitated if the Appellant was not present. As well as the individual mothers, it has not been made out that Children’s Services could not be consulted and seek advice, especially as in an area such as Bristol which is multicultural the importance of any such contact would no doubt be appreciated. As the issue appears to be the provision of suitable accommodation it has not been made out a room at a Family Centre or elsewhere under the control of the local authority or a church could not be made available. I do not find it has been established that the Appellant’s deportation would result in any negative impact upon the children’s understanding of their heritage.
42. Mr Joseph also referred to the fact the Appellant now lives with his partner A and currently two children. I accept there is evidence the older child has behavioural issues in the witness statement which are being explored with the County Council, which the Appellant has pursued. There is, however, no evidence to show there has been an assessment or diagnosis of any condition concerning the child and, in any event, as concerns were raised by the child with the school it is clear that steps are being taken to ensure that the needs of the child are being met.
43. Whilst the Appellant may have pursued the matters on behalf of the child to date, that does not mean that without the Appellant’s presence such matters will not be properly investigated, assessed, and appropriate steps taken. The local authority has a statutory duty to ensure the needs of this child, if necessary, are properly met.
44. The second child is the baby who is currently two weeks of age. There is nothing in relation to this child that is relevant.
45. I accept Mr Joseph’s submission that there is evidence of a strong emotional support provided by the Appellant for the children but do not accept it has been made out on the evidence that it would be unduly harsh if he was to be deported.
46. Whilst the Appellant has now been granted a right to work and contributes to the family it is not made out that if he was deported the family would not be able to meet their needs, as they clearly were able to do prior to his bail conditions being varied.
47. I do not find it made out that Appellant’s deportation will be unduly harsh when considering the relevant case law and the appropriate test.
48. I do not find the Appellant has established that he is able to rely upon any exception contained in section 117C Nationality, Immigration and Asylum Act 2002, the Immigration Rules, or any other statutory provision. I find the Appellant is unable to show on the evidence provided that the effect of his being deported will, objectively, be unduly harsh on either any qualifying child or qualifying partner.
49. In relation to whether there is something over and above the exceptions sufficient to render deportation disproportionate, as to do so would breach his rights pursuant to Article 8 ECHR, the points considered in relation to the exceptions are part of the assessment but also the strong public interest, which is an important part of the balancing exercise, can now be factored in.
50. The Appellant’s criminality is set out above which involves Class A drugs. There is a very strong deterrent element in showing those who have no right to remain in the UK, as they are not British citizens, that if they involve themselves in illegal activity involving drugs they may face deportation in addition to the sentence of the criminal courts.
51. It is not disputed that drugs cause substantial harm to the community and to the economic well-being of the UK.
52. Having sat back and considered the competing factors, I am satisfied there is nothing on the facts of this appeal sufficient to make the Secretary of State’s decision unlawful when considering the Human Rights Act. I find the Secretary of State has discharged the burden of proof upon her to show that on the particular facts of this appeal, in light of the evidence available, the matters relied upon by the Appellant are not sufficient to outweigh the strong public interest in his deportation and that the legitimate aim of preventing crime and disorder and the economic welfare of the UK are the determinative factors.

Notice of Decision

53. Appeal dismissed.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 February 2025