ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Clive Lane
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BEAN
LORD JUSTICE MOYLAN
| THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|VC (SRI LANKA)
Shivani Jegarajah (instructed by PRIDE SOLICITORS) for the Respondent
Hearing dates: 4 OCTOBER 2017
Crown Copyright ©
LORD JUSTICE MCFARLANE :
' 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".'
The Legal Context
"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."
"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."
"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."
"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;"
The First-tier Tribunal Decision
' 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.'
'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."
"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."
The Upper Tribunal Decision
The case on appeal
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.
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.
'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.'
'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.'
'there is no other family member other than the foreign criminal who is able to care for the child in the UK.'
Lord Justice Bean
Lord Justice Moylan