Case No: C5/2010/0441
Neutral Citation Number: [2011] EWCA Civ 348
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
OA/89591/2008 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/03/2011
Before :

THE PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE SEDLEY
and
LADY JUSTICE ARDEN
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Between :

	 AD LEE	Appellant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	
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(Transcript of the Handed Down Judgment of
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Mr David Jones (instructed by Messrs Paragon Law) for the Appellant
Mr Vikram Sachdeva (instructed by Treasury Solicitors) for the Respondent

Hearing date: Thursday, 17 February 2011 
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Judgment
Lord Justice Sedley : 
This is the judgment of the court.
1.	The appellant is a Jamaican national who has been deported from this country. He appeals from Jamaica against the refusal of the Home Secretary to revoke the deportation order. The appeal was initially heard and rejected by an immigration judge whose decision was set aside on reconsideration and a second-stage reconsideration directed. This came before IJ Brunnen, who after a complete rehearing again dismissed the appeal. The present appeal against his determination comes before the court by permission of Sir Richard Buxton who, on considering the papers, took the view that in a single respect – namely the impact of deporting the appellant on the older of his two daughters – there was room for argument that the immigration judge had made an inadequate appraisal of the case.
2.	The appellant, who is now 32 years old, initially entered the United Kingdom as a visitor in 1996 but was granted a variation to enable him to remain as a student. When this leave expired at the end of October 1999 he overstayed, but at some point thereafter left the country, returning in April 2002 and absconding after securing temporary admission. He was however arrested within three months for having a forged insurance certificate. In January 2003, having been removed to Jamaica, he re-entered the United Kingdom on a false passport and within a few months had again been arrested, this time for possession of class A drugs with intent to supply. On pleas of guilty to ten counts he was sentenced on 3 October 2003 to 7 years’ imprisonment.
3.	In April 2006, while still in prison, the appellant was served with notice of intention to deport him. While his appeal against this notice was pending (it succeeded at first instance but was overset on reconsideration) he reached the end of the custodial part of his sentence and in February 2007 was bailed; but following the final dismissal of his appeal he was deported in November 2008.
4.	While the appellant was in prison he married Rachel Lee, whom he had met in 1998, had begun a relationship with in 2001 and had begun to cohabit with in 2002. Their first daughter, R, was born in March 2003; their second daughter, A, in November 2007. Although Mrs Lee and R visited him in prison, it was after his release on bail in February 2007 that the appellant’s relationship with R began to take root, and there is no doubt on the evidence that R became and still is extremely attached to him. R is now almost 8. Her sister, who is still only 3, seems relatively unaffected by his going.
5.	Mrs Lee too has been dependent on the appellant because she runs a small cleaning business and has in addition to look after her chronically unwell mother. The appellant’s presence as a child-minder enabled her to keep her business going, but in his absence it is now in danger of foundering.
6.	We pause here, because it is not this court’s role to substitute its own view of the merits for that of the immigration judge. We turn to IJ Brunnen’s determination.
7.	We observe first that the judge had the assistance of Mr Jones, counsel for the appellant, at the hearing but no assistance at all from the Home Office, an omission which he described with justification as “little short of disgraceful in a case with this history and of this complexity”. But one benefit of this for the appellant was that a number of points which might have been taken against him were not taken. Among these was the striking fact that the application for revocation of the deportation order had been made (albeit contingently) before deportation had even occurred, and that the appeal against the refusal of the application was launched from Jamaica within a month of his deportation. There was also no challenge to any of his evidence.
8.	Even so, IJ Brunnen found against the appellant and dismissed his appeal. He did so after setting out in scrupulous detail the evidence on which the appellant relied. The Home Secretary had taken the view that it was reasonable to expect the appellant’s wife and children to go and live with him in Jamaica. Having considered the evidence the immigration judge, quite rightly, rejected this: they had actually made a visit and found the conditions impossible. It followed that the reality of deportation was that it would break the family up. The judge faced up to this, as this court in VW (Uganda) [2009] EWCA Civ 5 said he should:
“For Mrs Lee to take her children to live in Jamaica would in my view be so detrimental to their interests as to be positively irresponsible. She has made clear that she will not do so. I find her decision in that matter to be entirely understandable and reasonable.”
9.	The question was therefore not whether some scintilla of family life could be maintained by letters, phone calls and visits (though the judge recognised this possibility) but whether it was proportionate to break the family up. He concluded that it was. He did so in a structured determination which, if we may say so, is a good example of how the art. 8(2) exercise should be done. He took account of the fact that the appellant had both a serious criminal record and a very bad immigration history, adding to this his own judgment that the risk of reoffending could not sensibly be said to be as low as the probation service had suggested it was. He noted that deterrence of others played a proper part in the art 8(2) judgment and rejected the submission that this had now been achieved by the appellant’s deportation.
10.	We set out in full how the immigration judge then approached what for present purposes is the crucial part of his determination:
106. It is clear that the effect of the decision weighs particularly heavily on Mrs Lee and R. So far as Mrs Lee is concerned I do not regard her desire to keep her business going because of the work that she has previously put into it as a particularly weighty consideration. She established the business when the Appellant was in prison. She knew that the Appellant had entered the United Kingdom illegally and she had turned a blind eye to that. She had no legitimate expectation that he would be allowed to stay here and to help her run her business.
107. I accept that Mrs Lee loves the Appellant and that her separation from him is distressing to her. If this were not so she would not have endured the visit to Jamaica and would not have put so much obvious effort into trying to avoid his deportation and into seeking the revocation of the order. I accept that the strain of bringing up two daughters on her own is very considerable. However, again it has to be said that she knew from an early stage what she was getting into. She knew that the Appellant was removed as an illegal entrant In January 2003 and returned here illegally. When she married him in June 2004 she knew not only that he was here illegally but also that he had committed very serious offences. When A was conceived she knew all this and also that the Respondent had decided to deport the Appellant.
108. It is an important consideration in this case (in contrast to Maslov) that the Appellant was not settled here. He had no right to be in this country after 1999. When his relationship with his wife began and when his drug dealing offences were committed he was already here illegally. Furthermore, his childhood and formative years were spent in Jamaica rather than in the UK, which again makes this case very different from Maslov.
109. The factor which to my mind weighs most heavily in favour of revocation of the order is the effect of separation from her father on R. She is, of course, in no way to blame for the complications in her life created by her parents. I accept that in the months following the Appellant's deportation she was disturbed to a very significant extent. I accept the evidence of her mother and grandmother about this and it is confirmed by the school evidence and the psychologist's letters. Mr Yeadon's report draws this evidence together. However, it appears that R is now coming to terms with the situation. This is apparent from Ms Clarke's letter of 2nd September 2009 and from the head teacher's letter and the class teacher's questionnaire attached to Mr Yeadon's second report. It is not clear exactly what R now knows about her father's situation. Mrs Lee and Mrs Jebabli both said that R thinks her father is staying in Jamaica in order to be with his mother and that she thinks he should now come back to the family in the UK. However, this does not seem consistent with Ms Clarke's letter in which she says that the Appellant and Mrs Lee discussed with R the reasons for his departure from the UK and the fact that he is unlikely to be able to return in the foreseeable future. Whatever R has been told, however, it seems she is adjusting to life without her father In the UK, I note that Mr Yeadon says that the situation may still give rise to future problems but that is not a risk which can be assessed with any kind of precision.
110. A does not seem to have been so seriously affected by the deportation of her father and there are no further individual factors arising from her situation.
111. It is, of course, the case that it is generally highly desirable for children to grow up with both their parents as a regular presence in their lives. Telephone contact, letters, photographs and occasional visits can only be a poor substitute. Further, the whole family situation might be eased if Mrs Lee had the help of the Appellant so that she would not be so stretched between earning a living and caring for her children.
…..
113. Ultimately it is necessary to make an assessment of whether the impact on the family of the Respondent's decision to refuse to revoke the deportation order is so great as to outweigh the Respondent's reasons for making that decision.
114. In my judgment the Respondent's reasons prevail and I find that although the decision will very significantly interfere with the life of the family, that interference is justified and proportionate. I therefore find that the Respondent's decision is not unlawful under Section 6 of the Human Rights Act 1998.
11.	 Mr Jones’ critique of these findings derives from the base material, all of it advanced by the appellant, read in the light of the recent decision of the Supreme Court in ZH (Tanzania) [2011] UKSC 4, a case which highlights the importance to be given to the best interests of children potentially affected by a removal or deportation decision. Although Lady Hale began by postulating a case in which removal of the parent will bring about removal of the child, we accept that similar reasoning has to be applied where removal of a parent will leave a child here. What the child’s interests have to be balanced against are of course the imperatives for removing the parent, which in a deportation case may be powerful. But the child’s interests are themselves entitled to great weight, as the ECtHR stressed in Uner v The Netherlands (2006) 45 EHRR 421. As Lady Hale went on to point out, recent ECHR jurisprudence had shifted the focus to these and away from the parent’s wrongdoing, but certainly not so as to exclude the latter. She said:
25. Further, it is clear from the recent jurisprudence that the Strasbourg Court will expect national authorities to apply article 3(1) of UNCRC and treat the best interests of a child as "a primary consideration". Of course, despite the looseness with which these terms are sometimes used, "a primary consideration" is not the same as "the primary consideration", still less as "the paramount consideration". …..
12.	Approval was also given to the dictum of the Federal Court of Australia in Wan v Minister for Immigration [2001] FCA 568, §32:
26. ….. “[The Tribunal] was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration."
 …..
13.	This said, Lady Hale went on to say:
26. ….. This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first. That seems, with respect, to be the correct approach to these decisions in this country as well as in Australia.
28. A similar distinction between "rights-based" and "non-rights-based" arguments is drawn in the UNHCR Guidelines (see, para 3.6). With respect, it is difficult to understand this distinction in the context of article 8(2) of the ECHR. Each of the legitimate aims listed there may involve individual as well as community interests. If the prevention of disorder or crime is seen as protecting the rights of other individuals, as it appears that the CRC would do, it is not easy to see why the protection of the economic well-being of the country is not also protecting the rights of other individuals. In reality, however, an argument that the continued presence of a particular individual in the country poses a specific risk to others may more easily outweigh the best interests of that or any other child than an argument that his or her continued presence poses a more general threat to the economic well-being of the country. It may amount to no more than that.
14.	Mr Jones submits that Lord Kerr’s concurring judgment carries a different emphasis:
46. It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child's best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result.
15.	We do not agree. It seems to us that Lord Kerr is expressing the same view as Lady Hale in different language; but if we are mistaken about this, the majority opinion is that expressed by Lady Hale and is to be followed.
16.	Is it nevertheless the case that IJ Brunnen, without the benefit of ZH (Tanzania), took an appreciably different approach and one less favourable to R’s interests and needs? It is very difficult to think that this was the case when one re-reads the first sentence of §109: “The factor which to my mind weighs most heavily in favour of revocation of the order is the effect of separation from her father on [R].” The judge went on to remind himself, as Lady Hale said one should, that the child was not responsible for the parent’s misdeeds. 
17.	He then turned to the detail of the expert and specialist evidence which had been placed before him and – as has been seen – concluded that it was not all one way and that R was adjusting to life without the appellant. Mr Jones criticises the form in which the judge has expressed his conclusion in § 113 (see above). He contends that it prioritises the case for deportation and considers only whether the impact on the family is so great as to outweigh it, when it ought to be approaching the issues in the opposite order, prioritising R’s interests and asking whether they are outweighed by the case for deportation. It seems to us that, at least in the present context, this is a matter of form, not of substance, and that it is to §109 that one must turn in order to see what the substance of the challenge is. Provided both the child’s interests and the case for deportation have been properly appraised, the question whether one outweighs the other can be approached from either direction.
18.	It is not suggested that the case for deportation has been unfairly evaluated by the immigration judge. But Mr Jones contends that the findings about its impact on R in §109 have been cherry-picked with the effect of softening the impact and eventually of legitimising the finding of proportionality. To this end he has taken us in some detail through the successive reports of an independent social worker, Clive Yeadon, which are thorough and conscientious, and which moreover – in the events we have described – stood unchallenged. 
19.	In his report of 30 April 2009 Mr Yeadon described a friendly and secure little girl who, however, had suffered emotionally and behaviourally by the removal of her father. He described this as “a severe downturn” but went on:
“The extent of that process is continuing to emerge, but of course in terms of childhood development, its impact is not only very difficult to measure currently, but almost impossible to speculate upon in terms of the future.”

20.	In a follow-up report of 2 November 2009 Mr Yeadon commented on a letter from R’s primary school which also formed part of the evidence before the immigration judge. It read:
                       Dear Mr Yeadon 
I am writing to you following the receipt of your letter dated 29.10.09 in which you sent a progress questionnaire for R.  I have attached the current class teacher’s completed questionnaire, but just wanted to put on record that although R is currently making good progress in school, she was a very different child for a number of months when her dad was first deported.
She became very clingy and emotionally attached to her mum and no longer came into school with a huge smile, but was often holding onto mum and very upset to leave her side.
She was also far more withdrawn from her classmates and generally not the happy, carefree girl we had seen when she started at the school, but a very upset and emotionally troubled child.
Clearly as time has passed she is beginning to be more like her old self and naturally her teacher this year has only taught R from September through to now.
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21.	To the letter was attached a questionnaire on which the school had answered “No” to the enquiry “Do you have any cause for concern about any aspects of [R’s] general social development, so far as this can be measured in school?” Mr Yeadon, commenting on this and on other evidence about R’s recent behaviour, wrote:
31.  I am asked to comment on whether R’s more recent behaviour discussed in the witness statements with reference to her once more talking about missing her father and bursting into tears spontaneously (is) suggestive of a regression in her behaviour after the initial period of more stable behaviour after their return from Jamaica.  I am further asked whether it is likely that this behaviour will continue to regress further if regular visits to R’s father cannot be made.  In response, I would say the following.
33. In short, I do not think it surprising that R will exhibit behavioural as well as verbal signs of missing her father.  Indeed, it would be more worrying were she not to do so, as it would imply that either she has no cause to have a bond with him, or alternatively that she has given up the hope or expectation of seeing him again, and therefore become ‘cold’ and emotionally disengaged, as a protection against further sadness.  Since for R there is no ground for either to apply, she will, inevitably in my professional view, show signs of regression, a manifestation of emotional confusion and anxiety.
22.	R has also been referred to the child and adolescent psychology department of the local hospital, whose report (undated, but evidently written about the middle of 2009), included this:
Initial ideas
R’s distress is understandable given the circumstances under which her father left but she appears to be slowly adapting to her father’s absence.  Her current difficulties are most likely due to anxiety and uncertainty surrounding the reason for her father’s abrupt departure, which may includes concerns that she was in some way to blame and feeling insecure.  Unfortunately Rachel has had fewer opportunities to provide R with reassurance, and has been managing her own distress with little support.  It is also possible that R’s outburst have been accidentally reinforced by the fact that these result in a phone-call to her father. 
23.	A subsequent report dated 2 September 2009 and written after the family had visited the appellant in Jamaica, said:
Rachel and Andrew were able to initiate a discussion with R regarding the reason for Andrew’s departure and the fact that he is unlikely to return to the UK, at least for the foreseeable future.  They feel that this has helped R to develop a better understanding of the current situation and has allowed her the opportunity to ask questions about her father’s departure.  R’s behaviour has continued to improve and there have been no signs of distress or emotional outbursts since her return from holiday.  Rachel feels that R is now coping reasonably well with the fact that her father will be living in Jamaica, and apparently R was looking forward to coming back to the UK to see her friends.
24.	At Mr Jones’ invitation we have read a further report of Mr Yeadon, written in November 2010, a year after IJ Brunnen’s decision. It records a “cyclical pattern” of behavioural disturbance following – now – two visits to the appellant, and expresses the view that the appellant’s return would have a positive impact, although the fear of further disruption would make for continuing “testing out” behaviour.
25.	If we had considered this recent report to cast a potentially decisive new light on the art 8 case, we would have had to consider whether some form of intervention by this court was required. But what it demonstrates above all is that it is the continuing uncertainty about her father’s role in her life that is having a predictably disruptive effect on R’s development. That uncertainty is in no small part a function of these proceedings, and it is to the question whether these have now reached finality that we must return.
26.	We do not accept the criticism that the immigration judge in §109 has selected evidence which points towards a particular conclusion. On the contrary, he has done what he can to reconcile and fit into a single frame the diverse and not always homogeneous reports on R put in without challenge on the appellant’s behalf. That this was done is in no sense a criticism of those representing and advising the appellant. It would have been reprehensible for them to select only those professional reports which suited their case. But the consequence of the diversity of professional  evidence was that it fell to the immigration judge to make the most coherent picture he could out of it, and – as Mr Sachdeva has demonstrated on the Home Secretary’s behalf – he had a good foundation in the evidence for each element of the picture which he put together in §109. Far from cherry-picking, it seems to us that this was a legitimate piece of analysis and synthesis.
27.	The tragic consequence is that this family, short-lived as it has been, will be broken up for ever because of the appellant’s bad behaviour. That is what deportation does. Sometimes the balance between its justification and its consequences falls the other way, but whether it does so is a question for an immigration judge. Unless he has made a mistake of law in reaching his conclusion – and we readily accept that this may include an error of approach – his decision is final. In our judgment the immigration judge in the present case reached a permissible conclusion by means of a properly structured appraisal of the evidence, informed by a correct understanding of the legal importance of a child’s best interests. It follows that this appeal has to be dismissed.