England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
DA022962013

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/11/2017

Lord Justice Sales:

1. This is an appeal by the Secretary of State in a case in which she wishes to deport the respondent. He is a national of Jamaica who has committed crimes here. By a decision promulgated on 21 March 2014 the First-tier Tribunal ("FTT") allowed the respondent's appeal against his proposed deportation. The Upper Tribunal dismissed the Secretary of State's appeal against that decision. She now appeals to this court. It is the decision of the FTT which is the relevant decision on this appeal.
2. The respondent's date of birth is 28 September 1967. He came to the UK in August 2002 and was eventually granted indefinite leave to remain outside the immigration rules on 14 December 2010. He has a wife and children here. The respondent's wife ("CM") was born in 1974. She has two children from a previous relationship (born in 1999 and 2001) and three children with the respondent (born in 2005, 2006 and 2008). CM and the children are British citizens.
3. On 19 March 2012 the respondent was sentenced at Bristol Crown Court to two years' imprisonment in relation to his conviction on two counts of possession of a class A drug with intent to supply and 3 counts of possession of a class B drug. The respondent had convictions for a total of twelve previous offences. The sentencing judge found that he was dealing in order to fund his own addiction and was prepared to put him at the lower end of the scale in terms of seriousness of the offences for which he was sentenced. The appellant was released on licence on 18 March 2013 but taken into immigration detention, from which he was eventually released on bail on 12 April 2013. At that point he rejoined the family household.
4. CM finds looking after the five children very difficult. They have behavioural and medical problems. There is a good deal of evidence, including from the family GP and the children's schools, that the respondent has helped her in that regard and that the children are better settled, calm and under control when he is on hand as part of the family.
5. Nonetheless, in July 2011, before the respondent was imprisoned, social services became involved with supervising the family because of a concern that the needs of the children were not being met. The concerns included the fact that there had been occasions when medical appointments for the children were missed, for which the respondent was responsible.
6. In February 2012, just before the respondent was sent to prison, there was a review of the children's case by social services with a view to placing them on the 'at risk' register. They were placed on the register on 12 March 2012.
7. CM received support from social services while the respondent was in prison and seems to have coped with the children in that period, albeit in a family which was not functioning as well as it does when the respondent is at home and part of the household. According to CM's own (unsigned) witness statement before the FTT, at para. 5, in this period she found that "caring for the children on my own can be quite challenging." She did not say that she found it impossible and clearly social services considered that she could manage with their help, as the children were not removed from her and taken into care. In November 2012, well before the respondent rejoined the family, the children were removed from the 'at risk' register.
8. The Secretary of State wrote a lengthy and closely reasoned decision letter to explain why she considered that it was appropriate to make a deportation order in relation to the respondent as a foreign criminal, in light of section 32(5) of the UK Borders Act 2007 and despite taking the welfare of the children into account as a primary consideration pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009. In her letter, the Secretary of State referred to paras. 398 and 399 of the Immigration Rules. She reviewed the available evidence in considerable detail and explained her view that the children could remain in the care of CM, who would be capable of looking after them with support provided by social services.
9. Paragraphs 398 and 399 of the Immigration Rules were introduced in July 2012 as part of a set of rules designed to ensure that tribunals approached claims for leave to remain in the UK in reliance on rights under Article 8 of the European Convention on Human Rights in a more structured way, and in particular by giving appropriate weight to considerations of the public interest in the removal of foreign criminals.
10. Paragraph 398 provided, among other things, that where a foreign national has been convicted of an offence for which they have been sentenced to a period of imprisonment of less than four years but at least 12 months, and claims that their deportation would be contrary to the UK's obligations under Article 8, "the Secretary of State in assessing that claim will consider whether paragraph 399 … applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors." For consideration of the strength of the public interest in deportation of foreign criminals, see now Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799.
11. Paragraph 399 provided in relevant part:

"This paragraph 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 … and [in that case] (a) it would not be reasonable to expect the child to leave the UK; and (b) there is no other family member who is able to care for the child in the UK …".

12. The Secretary of State's case is and always has been that CM is able to care for the five children in the UK, with the help of social services so far as that is required. Therefore, the respondent is not able to bring himself within the scope of para. 399(a) of the Immigration Rules.
13. The evidence before the FTT in the form of letters from the family GP and the children's schools indicated that the children did significantly better when the respondent was at home and part of the household. But none of them said that CM was incapable of caring for them on her own, if necessary with support from social services. In fact the relevant letter from Adamsdown Primary School dated 22 May 2012, in the period when the respondent was in prison, simply noted that CM was "finding it very difficult to cope, without support, in addressing the needs of her children [while the respondent was in prison]", but also stated that the children "are well cared for at all times". The evidence about the involvement of social services showed that they had had concerns about the children's welfare well before the respondent went to prison and those concerns had become more acute at the time he went to prison, such that the children were placed on the 'at risk' register; but well before he came out of prison they were removed from the 'at risk' register. At no point were the children taken into care while the respondent was in prison, on grounds that CM could not cope and was not able to care for them.
14. In his evidence to the FTT the respondent asserted that it was likely the children would be taken into care if he were deported. CM's witness statement was a good deal more muted. At one point (in para. 4) she said she could not cope with the children when the respondent was not there, but at another (in para. 5, see above) she discussed the situation when in fact he had not been there but away in prison and only described that as being challenging for her. In the event, she did not come to the FTT hearing to give evidence to elaborate upon what she had said.

The FTT decision

15. Unfortunately, the FTT wholly failed to refer to paras. 398 and 399 of the Immigration Rules and failed to direct itself or structure its reasoning by reference to them. Instead, the FTT simply engaged upon an unstructured Article 8 analysis by reference only to the general guidance derived from R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368.
16. At para. [38] the FTT found that it would be disproportionate for the children to leave the UK. The language used by the FTT does not indicate that it had para. 399(a) of the Immigration Rules in mind at this point, nor does its language in [39]-[40], quoted below.
17. The key part of the FTT's reasoning is at [39]-[40], as follows:

"39. We are concerned about the [respondent's] wife who did not attend the hearing. The [respondent] had not heard from her and did not know the reason for her absence. When questioned about it he said (the hearing was on Friday) she slept at the family home on the Tuesday night and the last time he saw her was on the Wednesday. She walks out and leaves the children. It is clear that the appellant looks after the children in so far as taking them to school, collecting them, looking after their general welfare. Two of the children suffer from eczema. He makes sure they take their medication. We accept what he says, that there is a likelihood that if he was not present, the children would be taken into care. Beau [CM's second child] obviously has behavioural problems and [the respondent] has had to go to school on a number of occasions because of these difficulties. The letter from Adamsdown Primary School speaks of [the respondent] as a dedicated and loving father who takes a hands-on approach to the care of his children. Also the letter from St Teilo's Church in Wales School states that [the respondent] is a stabilising influence on the life of Beau. Other letters speak highly of [the respondent] in the way he looks after all the children. We have concerns about [CM's] welfare and whether she is able to look after the children if [the respondent] was deported. We gave [the respondent] leave to produce late medical evidence in relation to [CM] or the reason why she still did not appear to give evidence. No evidence has been produced.

40. Taking into consideration all the evidence before us, although [the respondent] has committed serious offences, we find the evidence in the way [the respondent] looks after the children and the genuine remorse he has shown, outweighs the public interest in the appellant's deportation. We do consider this to be an exceptional case and [the respondent] realises that if he commits further offences the decision may well be different."

Discussion

18. Ms Ward for the respondent rightly accepted that the failure by the FTT to direct itself by reference to paras. 398 and 399 of the Immigration Rules or section 32(5) of the 2007 Act and to structure its reasoning accordingly was an error of law by the FTT. However, she contends that it was not a material error of law, because of what the FTT said in para. [39] of its decision. According to Ms Ward the FTT happened to make a finding on the relevant issue which arose under para. 399(a) of whether any other family member (here, CM) could look after the children if the respondent were deported and had found that there was none, since the FTT accepted what the respondent said to the effect that the likelihood would be that the children would be taken into care if he was not present. Therefore, if the FTT had directed itself properly by reference to paras. 398 and 399(a), it would inevitably have reached the conclusion that this was a case in which the deportation decision should be set aside.
19. Against this, Mr Payne for the Secretary of State disputes that any relevant finding of fact has been made by the FTT on that critical question; says that even if one was made as Ms Ward maintains, it was not justified on the evidence; and also submits that the FTT has failed to give proper reasons for making such a finding of fact in light of the evidence which was available and the closely reasoned decision letter from the Secretary of State which had come to a different conclusion on that material. Mr Payne submits that this is a case in which the appeal should be allowed and the question of the deportation of the respondent remitted to a FTT to be re-determined.
20. In my view, this court can have no confidence that if the FTT had correctly directed itself in law by reference to para. 399(a) then it would have come to the conclusion that the requirements of that sub-paragraph were satisfied. We can have no confidence that the FTT, if properly directed, would have found that CM would not able to care for the children in the UK if the respondent were deported, so that the respondent's appeal against his deportation would inevitably have been allowed by the FTT. The FTT's error cannot be regarded as immaterial. This is for a number of reasons, which have a combined effect to undermine Ms Ward's submission regarding the supposed immateriality of the error by the FTT.
21. First, I consider that the FTT at para. [39] has not reached a clear and unequivocal finding that CM would not be able to care for the children. This is because on the one hand it speaks only of a "likelihood" that if the respondent were not present the children would be taken into care and on the other it says merely that it had "concerns" about whether CM is able to look after the children.
22. Secondly, in so far as the FTT refers to a likelihood that the children would be taken into care, that appears to be based primarily if not entirely on the respondent's own assertions to that effect. But this was self-interested speculation on his part. He was not in a position to give evidence about that from his own knowledge. There was no objective evidence from any neutral third party observer (the schools, the GP and social services) which said that CM was not capable of looking after the children, with assistance as necessary from social services. Moreover, practical experience indicated that the respondent's assertions were highly suspect, to say the least, because CM had cared for the children without his assistance for more than a year while he was in prison. In so far as the FTT intended to make a finding on the critical point in para. [39], which as I have said is itself doubtful, it appears that in doing so it made a decision which was unsupported by, or was contradicted by, the best evidence available on the issue.
23. Thirdly, one cannot be sure about what the FTT's reasoning process was or might have been had it directed itself correctly in law, because the reasons it gives at [39]-[40] do not explain adequately or at all why it was that it rejected the Secretary of State's closely reasoned case based on the relevant evidence that CM was in fact able to look after the children herself, with assistance as necessary from social services.
24. In my view there is a very real possibility that if the FTT had directed itself properly on the law it would have concluded that the respondent could not bring himself within para. 399(a) because CM is a family member who is able to look after the children in the UK. Ms Ward did not suggest that if that were so we should nonetheless dismiss the appeal because the FTT said at [40] that it thought this was an exceptional case. It was not addressing para. 398 of the Immigration Rules when it said that and its observation was made without reference to the strong public interest in deportation of foreign criminals which arises by reason of section 32(5) of the 2007 Act and through application of the relevant Immigration Rules, as explained in Hesham Ali.
25. For these reasons, I do not think it is possible to regard the FTT's admitted error of approach as one which is immaterial. I consider that the appeal should be allowed and the case remitted to a FTT.
26. I have not overlooked that the Upper Tribunal came to a different view. It appears to have thought at paras. [3]-[5] that the FTT did address the relevant test in para. 399(a) (assuming that the Upper Tribunal's references there to "399A" are typographical errors) and that, having properly directed itself, it made a finding that there was a lack of alternative available care. Clearly, the shape of the argument before us is rather different. It is now rightly conceded that the FTT did not in fact address para. 399(a) as it should have done, and the argument then becomes one of whether that error of law is material or not. The Upper Tribunal did not address that question. I have set out my reasons why, when that is the question which is posed, one cannot say that the error was immaterial. Accordingly, the Upper Tribunal decision cannot and does not salvage the FTT decision.

Lady Justice Sharp:

27. I agree.

Lord Justice Gross:

28. I also agree.