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)
Upper Tribunal Judge Clive Lane

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/11/2017

LORD JUSTICE MCFARLANE :

1. The central focus of the present appeal relates to the evaluation of the right to family life under Article 8 of the European Convention on Human Rights of a foreign criminal deportee whose two children were at the relevant time subject to full care orders and orders authorising the local authority to place them for adoption.
2. Although the underlying facts are more complicated, the operative decision to deport was made by the Secretary of State on 21 October 2013. By that time, in consequence of a decision of this court in family proceedings - Re V (Children) [2013] EWCA Civ 913 ['the Court of Appeal judgment'] - the two children of the family, who were then aged 9 and 5 years, were subject to placement for adoption orders with arrangements for very limited contact to their father which would cease altogether once an adoptive placement was found. The father, '[VC]', who is the respondent to the present appeal, successfully appealed to the First-tier Tribunal ['FTT'] which, on 22 January 2014, allowed his appeal on the grounds that (i) the decision to deport was not made in accordance with the Immigration Rules and (ii) the decision to deport was not compatible with his Article 8 rights.
3. On 29 May 2014 the Upper Tribunal (Upper Tribunal Judge Clive Lane) dismissed the Secretary of State's appeal on the basis that the FTT decision had not been flawed by legal error and that the FTT had been entitled to hold that [VC] had a subsisting relationship with his children at the time that the relevant decision was made. The Secretary of State now appeals to this court, permission to appeal having been granted by Gloster LJ in April 2016.

Factual Context

4. [VC], who was born in Sri Lanka in 1970, entered the United Kingdom illegally in March 1998 and immediately claimed asylum. His asylum claim was refused in 1999 and the issue was not reconsidered until raised as part of his challenge against deportation in 2013. In the determination of his appeal the FTT dismissed the asylum claim and that issue does not form any part of the present appeal before this court.
5. In 2004 [VC] married another Sri Lankan national and their first child was born.
6. On 9 January 2007 [VC], who has no other criminal convictions, sexually assaulted three women and one man in the street within minutes of each other at a time when the evidence indicates that he was plainly very drunk. On 12 February 2007 he was sentenced to a total of 12 months imprisonment for those offences, and it is that conviction and sentence which triggered the appellant's decision to deport him.
7. The couple's second child was born in 2008.
8. Findings made in the Family Court by His Honour Judge Jeremy Baker QC (as he then was), which were adopted by the FTT, established that [VC] had a consistent and well-established alcohol problem prior to his sentence of imprisonment and that he had played little part in caring for the children before his sentence or thereafter.
9. The couple separated in 2009 and in early 2010 [VC's] wife and the 2 children moved out of the area in which the family had previously lived, leaving [VC] behind. Unfortunately, as the Family Court held, the children's mother suffered from mental ill health which significantly compromised her ability to provide them with safe enough care. Again, [VC], as the court held, declined to respond to requests from the social services for him to take up responsibility for the children's care. Following a number of occasions when the children had been removed to safety for a short period, care proceedings were commenced in September 2011 and the children were removed permanently to foster care.
10. At paragraph 45 of the Court of Appeal judgment, Black LJ (as she then was) summarised the family judge's findings in relation to [VC] which included the following:

'… The judge accepted that [VC] could not provide care for the children now either and that the prospect of [him] being able to provide such care in the future is one that, in view of the need to provide for the long-term care of the children without delay, cannot be justified as it would be contrary to their welfare. This view rested on the following conclusions:…

[VC] played a minimal role in caring for [the first child]… before he went to prison.

Throughout the period before his imprisonment he was an alcoholic and was frequently violent to [his wife] in the presence of [the child].

When he was asked by the local authority in 2011 to provide assistance in the care of the children, he declined to do so despite the fact that he knew of the local authority's concerns about [mother]'s ability to care for the children who were in foster care.

He has extremely limited practical experience of childcare.

Although he put himself forward in January 2012 as the sole carer for the children, in reality he intended that [mother] would reside with him so that she could care for the children."

….

….

…

The local authority had devoted "considerable and sufficient efforts to provide assistance and support to [VC] in order to enable him to equip himself to be able to care for the children, but he had "failed to take any sufficient steps to respond to that assistance and support".'

11. In December 2012 HHJ Baker made care orders with respect to the 2 children, but declined to endorse the local authority's adoption plan, favouring, instead, placement in long-term foster care. The local authority's appeal was allowed, on the basis described in the Court of Appeal judgment, and placement for adoption orders were formally made with respect to the two children on 11 October 2013. The Secretary of State's letter recording her decision to deport [VC] followed some 10 days later on 21 October 2013.
12. The circumstances at the time of the FTT and Upper Tribunal hearings were that, although no adoptive placement had been found, the local authority were still pursuing a plan for adoption. This court has now been told that the search for adopters did not bear fruit and, as a result, on 1 October 2015, the placement for adoption orders were revoked and replaced by special guardianship orders with respect to the two children in favour of their former foster parents. Although there is no formal order for contact between the children and [VC], it is understood that some occasional contact takes place under the supervision of the special guardians. It is accepted that this appeal falls to be determined on the basis of the facts and plans for the children as they were at the time of the two tribunal hearings. If the appeal is allowed, the case will have to be remitted for re-determination in the light of the current circumstances.

The Legal Context

13. Paragraphs A362 and 397 to 399 of the Immigration Rules in force at the time relevant to [VC's] appeal before the FTT and Upper Tribunal. Paragraph A362 provided:

"Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 9 July 2012 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, were served."

14. Paragraph 397 provided:

"a deportation order will not be made if the person's removal pursuant to the order would be contrary to the UK's obligations under the … Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed."

15. The relevant parts of paragraph 398 provided:

"where a person claims that 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 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

…

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A 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."

16. Finally, the relevant parts of paragraph 399 provided:

"this paragraph applies where paragraph 398(b) … 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 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;"

17. The Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 held that the structure established for the analysis of Art 8 rights in the context of foreign criminal deportation cases that is described by paragraphs 398 to 399B of the Immigration Rules is a relevant and important consideration for tribunals determining appeals brought on Convention grounds [Hesham Ali paragraph 53].

The First-tier Tribunal Decision

18. In a determination promulgated on 22 January 2014, the FTT (FTT Judge Kelly and Dr. Okitikpi) initially considered [VC's] Article 8 claim by reference to the factors set out in paragraphs 398 and 399 of the Immigration Rules and held that:

' … we are satisfied that the appellant has a genuine and subsisting relationship with each of his children and that this is particularly strong in relation to [eldest child]. The existence of this relationship was recognized by both Judge Baker and the Court of Appeal, albeit that they attached different levels of importance to it. We are fortified in reaching this conclusion by reading the moving sentiments of love and affection that the children expressed for the appellant in the Christmas cards that they sent to him in December 2013. In our view, the existence of this relationship is unaffected by the fact that it will terminate if and when the children are placed for adoption. This is because we are required by section 85 Nationality, Immigration and Asylum Act 2002 to consider the circumstances that currently prevail, subject only to those circumstances being relevant to the substance of the decision that is the subject of the appeal.'

19. With regard to the eldest child, the FTT held that she had lived continuously in the United Kingdom for a period of at least 7 years and they were also satisfied that it would not be reasonable in the circumstances for either child to leave the United Kingdom.
20. The FTT noted that in the deportation decision letter of October 2013 the Home Secretary considered that there were "other care arrangements available for [the children] in the UK" before going on to hold:

'however, the reference to "other care arrangements" is a misrepresentation of the wording in sub-paragraph 399(a)(ii)(b) of the Immigration Rules. This sub-paragraph in fact stipulates that there must be "no other family member who is able to care for the child in the UK" [emphasis added]. In view of the fact that both Judge Baker and the Court of Appeal have found that the children's mother is unfit to have contact with (the children), she is a fortiori unfit to care for them in the United Kingdom. Indeed, it was her very inability to care for the children that caused the police to take the children into emergency care on three occasions, and subsequently caused the local authority to seek Care Orders with a view to placing them for adoption."

21. On that basis the FTT was satisfied that the appellant met the requirements for consideration of discretionary leave to remain under paragraph 399 of the Rules. They therefore held that the decision to deport him was not in accordance with the Rules.
22. In addition, and lest they were wrong in their primary conclusion, the FTT made it clear that they were also satisfied that there were "other factors", not contemplated by the Immigration Rules, which were sufficient to outweigh the public interest in deportation. Having set out a list of factors identified by the European Court of Human Rights in Üner v The Netherlands (2007) 45 EHHR 14, the FTT accepted that all save one of those factors had been incorporated into the Immigration Rules. The FTT identified the factor that was not incorporated in the Rules as "the time elapsed since the offence was committed and the applicant's conduct during that period". The FTT accepted that this was unlikely to be a significant factor in the general run of cases but held "that it is an exceptional circumstance that is capable of outweighing the public interest in deportation."
23. The FTT continued:

"in the circumstances of this case, we consider that it weighs heavily against a decision to deport the appellant. It will be recalled that it is now almost exactly 7 years since the appellant committed the offences (all on the same day) in question, and there is no suggestion that the appellant has re-offended since that time. Moreover, we accept the submission of [counsel] that the absence of offending over a period of 7 years strongly suggests that the risk of the appellant re-offending is now minimal. This in turn considerably reduces what might otherwise have been the strong public interest in deportation."

24. In concluding, the FTT identified "two important considerations" in support of its conclusion. Firstly, that the children's adoption would only occur, if at all, at some indeterminate point in the future, but in the meantime the children are entitled to maintain their limited contact with the appellant which was acknowledged to be beneficial by the Court of Appeal. Secondly, the difficulties that the children would face in seeking to be reunited with their father upon reaching the age of majority if he had been deported.

The Upper Tribunal Decision

25. In the course of a short judgment, Upper Tribunal Judge Clive Lane held that the tribunal had been entitled to consider that the appellant's relationship with his children was subsisting and that their approach was therefore not flawed by any legal error. UT Judge Lane therefore upheld the FTT's decision under the Immigration Rules and, although he questioned their approach to the Article 8 evaluation outside the Rules, he held that this did not affect the outcome. The Home Secretary's appeal was therefore dismissed.

The case on appeal

26. The Secretary of State's case on appeal to this court is based on the following three grounds:

i. That the FTT were wrong to conclude that [VC] had a genuine and subsisting parental relationship with his eldest child for the purposes of paragraph 399(a) of the Rules; particularly where [VC] was not providing care to his child to any material extent;

ii. That the FTT were wrong to regard the lapse of time since [VC's] conviction as an 'exceptional circumstance' sufficient to outweigh the public interest in deportation;

iii. That the FTT were wrong to take account of the fact that there might be some time before any adoption order and/or that deportation would make it more difficult for the children to trace [VC] when they had reached majority.

27. Although the second and third grounds raise matters of importance, the main thrust of the Appellant's case, as advanced by Mr Cornwell for the Secretary of State, is focussed upon the FTT's interpretation of paragraph 399(a) which applies where 'the person has a genuine and subsisting parental relationship with a child'. Mr Cornwell submits that the requirement for such a relationship contains four elements:

b. a relationship between the child and the foreign criminal;

c. which is 'parental', rather than of some other kind;

d. the relationship must be 'genuine'; and

e. the relationship must be 'subsisting' (in the sense that it exists or has a real existence).

It is submitted that simply to establish biological parentage is insufficient to meet the requirement in paragraph 399(a); there must be a genuine existing parental relationship.

28. Further, Mr Cornwell, by reliance upon paragraph 399(a)(ii)(b) ('there is no other family member who is able to care for the child in the UK'), submits that, for paragraph 399(a) as a whole to apply, it is necessary for the proposed deportation to leave the child without adequate care. Accordingly, he argues, the definition of 'genuine and subsisting parental relationship' necessarily includes some provision of 'parental' care for the child by the person subject to deportation, which would need to be replaced were deportation to be effected.
29. Mr Cornwell draws attention to the decisions made in the Family Court, which concluded that [VC] had only provided minimal care for the children and had failed to step in to care for them when their mother was incapacitated by her illness. The Family Court judgments and orders made it clear that, adoption or not, there was no prospect of the children returning to the care of either parent and [VC's] direct relationship with them was limited to 6 hours each year. In such circumstances, the Appellant's case is that the FTT was wrong to conclude that deportation was precluded by paragraph 399(a).
30. Mr Cornwell argues that, had the FTT directed itself to the real issue addressed by paragraph 399(a), it would have appreciated that [VC] undertook none of the care and/or responsibility for his children to a degree that characterises the relationship between a parent and child. The Appellant's case is that a genuine parental relationship cannot consist of a maximum of 6 hours contact per year and where every single aspect of parental care and parental responsibility is undertaken by others.
31. To support his submission, Mr Cornwell relies upon the judgment of Elias LJ (with whom Vos LJ agreed) in AJ (Zimbabwe) v The Secretary of State of the Home Department [2016] EWCA Civ 1021 where paragraph 399(a) was directly addressed at paragraph 17:

'These cases show that it will be rare for the best interests of the children to outweigh the strong public interest in deporting foreign criminals. Something more than a lengthy separation from a parent is required, even though such separation is detrimental to the child's best interests. That is commonplace and not a compelling circumstance. Neither is it looking at the concept of exceptional circumstances through the lens of the Immigration Rules. It would undermine the specific exceptions in the Rules if the interests of the children in maintaining a close and immediate relationship with the deported parent were as a matter of course to trump the strong public interest in deportation. Rule 399(a) identifies the particular circumstances where it is accepted that the interests of the child will outweigh the public interest in deportation. The conditions are onerous and will only rarely arise. They include the requirement that it would not be reasonable for the child to leave the UK and that no other family member is able to look after the child in the UK. In many, if not most, cases where this exception is potentially engaged there will be the normal relationship of love and affection between parent and child and it is virtually always in the best interests of the child for that relationship to continue. If that were enough to render deportation a disproportionate interference with family life, it would drain the rule of any practical significance. It would mean that deportation would constitute a disproportionate interference with private life in the ordinary run of cases where children are adversely affected and the carefully framed conditions in rule 399(a) would be largely otiose. In order to establish a very compelling justification overriding the high public interest in deportation, there must be some additional feature or features affecting the nature or quality of the relationship which take the case out of the ordinary.'

32. Mr Cornwell, whose primary submission is that [VC's] relationship with the children wholly fails to engage with the requirements of paragraph 399(a) even on any ordinary interpretation of the words used in the paragraph, relies upon paragraph 17 of AJ (Zimbabwe) to emphasise that the para.399(a) conditions form an exception to the default position (namely, that in order to demonstrate that deportation would breach Art.8 ECHR rights a foreign criminal in category (b) or (c) would need to demonstrate "very compelling circumstances") and accordingly the para.399(a) conditions were "onerous and will rarely arise" and are therefore to be interpreted strictly.
33. Additionally, Mr Cornwell submits that the FTT fell into error by failing to differentiate between HHJ Baker's evaluation of [VC's] relationship with his children and that which was subsequently undertaken by the Court of Appeal. By stating that 'the existence of this relationship was recognised by both Judge Baker and the Court of Appeal, albeit that they attached different levels of importance to it', the FTT misdirected itself by failing to appreciate that the Court of Appeal allowed the appeal and substituted its evaluation of the children's welfare needs for that of the judge; in legal terms, by the time of the FTT hearing, HHJ Baker's view of the importance of the parental relationship was no longer valid.
34. In response to the Appellant's case on this primary ground, Ms Shivani Jegarajah for [VC] referred to Home Office guidance on the question of 'Is there a genuine and subsisting parental relationship'. Debate during the appeal hearing, followed by subsequent research by counsel for both sides, has established that, although the guidance relied upon by Ms Jegarajah during the hearing related to applications for leave to remain under the '10 Year Routes', there was, in fact, Home Office guidance covering the time of the decision and both the FTT and UT determinations which was directly applicable to the deportation of foreign criminals under paragraph 399 of the Rules. That guidance, being 'Guidance on application of paragraph 399 – consideration of a child's best interests in cases where there is CRIMINALITY' (sic), includes the following under the heading 'A genuine and subsisting relationship':

'This is a key test under paragraph 399. There must be evidence that there is an active an[d] ongoing relationship. In considering whether the relationship is genuine and subsisting the following factors are likely to be relevant:

Does the applicant have a parental relationship with the child?

what is the relationship – biological, adopted, step child, legal guardian? Are they the child's de facto primary carer?

Is it a genuine and subsisting relationship?

does the child live with the person?

where does the applicant live in relation to the child?

how regularly do they see one another?

are relevant court orders governing access to the child?

is there any evidence or other relevant information provided within the application – for example the views of the child, other family members or from social work or other relevant professionals?

to what extent is the applicant making an active contribution to the child's life?

Factors which might prompt closer scrutiny include:

a. there is little or no contact with the child or contact is irregular;

b. any contact is only recent in nature;

c. support is only financial in nature, there is no contact or emotional or welfare support;

d. the child is largely independent of the person.'

35. Ms Jegarajah's submission is that the guidance clearly applies to situations where the parent is not living with the child and therefore not caring for him or her.
36. More generally, Ms Jegarajah submitted that the FTT enjoyed a broad discretion to take a holistic view of the facts of this case when determining whether or not there was a genuine and subsisting parental relationship between [VC] and the eldest child.
37. In relation to his second ground of appeal, that the lapse of time since [VC's] offending was an exceptional circumstance sufficient to outweigh the public interest in deportation, Mr Cornwell submitted that the FTT had misunderstood or mischaracterised the public interest in the deportation of foreign nationals who commit crimes in the UK. In any event, it was submitted that, by simply identifying one factor and then moving on immediately to holding that it was exceptional and, thereby, a reason for allowing the appeal, the FTT wholly failed to engage in balancing that factor (no re-offending) against the other 'facets' of the public interest in these cases as identified by Wilson LJ in OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694".
38. Further, Mr Cornwell submits that recent case law in this court (for example PF (Nigeria) v SSHD [2015] EWCA Civ 251 and Deissy Liliana Velasquez Taylor v SSHD [2015] EWCA Civ 845) has emphasised that a foreign criminal's rehabilitation will carry very little, if any, weight.
39. In relation to the third ground relied upon by the Appellant, namely that the FTT was wrong in its consideration of the case outside the Rules in relation to (a) the time that it may take to achieve an adoption order and (b) the impact that deportation would have on the children's ability to trace their father once they are adults, Mr Cornwell submitted that the two factors relied upon are wholly unrelated to those contained in the Rules and the FTT should not have considered them.
40. If, in the alternative, the FTT had added these two points as a postscript addition to its earlier determination within paragraphs 399(a) or 398 then, once again, it was in error in doing so. The length of time prior to adoption could not strengthen a 'genuine and subsisting parental relationship' if one did not otherwise exist. The second factor, which had been struck out by the UT, was wholly irrelevant to determining the current Art 8 rights of the family members.
41. In response to the second and third grounds of appeal, Ms Jegarajah's primary submission was that [VC's] case 'is not an exceptional case but a case that is within the Rules' [her emphasis]. Her secondary submission was that, as the Appellant had not raised these matters before the UT, it was unfair for them to be taken now as points before this court. Ms Jegarajah did not therefore specifically address the Appellant's case on those grounds.

Discussion

42. For the reasons put forward by Mr Cornwell, it was, in my view, not possible for the circumstances of this case to come within the requirements of paragraph 399(a) of the Rules. On the basis of the Court of Appeal's analysis of the family history, [VC] had played only a minimal role in the care of his children and, even when living at the family home, he had on a regular basis rendered himself unable to act as a parent as a result of heavy drinking and abusive behaviour. By the time of the Secretary of State's decision to deport him, any vestiges of a 'parental relationship' with the children had long fallen away and had reduced to their genetic relationship coupled with the most limited level of direct contact which was intended to cease altogether on adoption. Mr Cornwell is correct to stress the words 'genuine', 'subsisting' and 'parental' within paragraph 399(a). Each of those words denotes a separate and essential element in the quality of relationship that is required to establish a 'very compelling justification' [per Elias LJ in AJ (Zimbabwe)] that might mark the parent/child relationship in the instant case as being out of the ordinary.
43. Although, as I have explained, [VC's] case falls, as it were, at the first hurdle in that it was not possible on the facts as they were at the time of the decision to hold that he had a 'genuine and subsisting parental relationship', I am also persuaded that the Appellant is correct in submitting that for paragraph 399(a) to apply the 'parent' must have a 'subsisting' role in personally providing at least some element of direct parental care to the child. The phrase in paragraph 399(a)(ii)(b) which requires that 'there is no other family member who is able to care for the child in the UK' strongly indicates that the focus of the exception established in paragraph 399(a) is upon the loss, by deportation, of a parent who is providing, or is able to provide, 'care for the child'. This provision is to be construed on the basis that it applies to a category of exceptional cases where the weight of public policy in favour of the default position of deportation of a foreign criminal will not apply. To hold otherwise, and to accept Ms Jegarajah's submission that her client comes within the exception simply because he has some limited, non-caring, contact with his child would enable very many foreign criminals to be included in this exception.
44. The applicable Home Office guidance is in no manner determinative of the issue in this case, but, on hearing Ms Jegarajah's submission in relation to the guidance, and contrary no doubt to her intention, I was struck by the degree to which, on the facts of this case, each of the factors listed told very largely against her client having 'an active and ongoing' parental relationship rather than for it.
45. It is also, in my view, clear that paragraph 399(a) must relate to the care to be given by the foreign criminal or any other member of the child's family, as opposed to any other carer. The focus of the paragraph is upon the loss to the child of care as a result of the foreign criminal parent's deportation. Where, as here, neither the foreign criminal nor any other family member is providing care to the child, the paragraph can have no relevance. In terms of the provision of care, the deportation will have no impact on the child's circumstances. Whilst the meaning of paragraph 399(a)(ii)(b) is in any event plain, that meaning would be further clarified if the phrase 'other than the foreign criminal' were added so that it read:

'there is no other family member other than the foreign criminal who is able to care for the child in the UK.'

46. There will no doubt be cases that are nearer to the line, and which will require careful evaluation, but the facts of the present case, where the Court of Appeal has ruled that it is not in the interests of his children's welfare for [VC] to be considered as a carer for them at any stage during their childhood and that they should, if possible, be adopted, very plainly establish that [VC] was not, and had no prospect of, providing care for his children.
47. Although, if My Lords agree, my decision on the primary ground disposes of the appeal entirely, I also consider that the Appellant's second and third grounds of appeal have been made good. A lack of re-offending behaviour will, in cases that would otherwise qualify for deportation as a foreign criminal under the rules, carry little weight (see the cases cited at paragraph 37 above) and, in any event, the FTT was in error in conducting an analysis which simply used its conclusion on this one factor as a trump card, without conducting any balance against other aspects of the public interest.
48. With respect to the third ground of appeal, again I accept the Appellant's submissions in full. It was impermissible for the FTT to seek to identify factors related to Article 8 which were, on its view, outside the Rules. In any event, further time pursuing a relationship which falls short of engaging with paragraph 399(a) will not transform its quality to one that becomes a genuine and subsisting parental relationship, and, as the UT held, any impact on the ability in later life of the 'child' to trace her father was, on any view, outside the range of relevant considerations under Article 8.

Lord Justice Bean

49. I agree with the judgment of Lord Justice McFarlane.

Lord Justice Moylan

50. I agree.