Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/07574/2013


THE IMMIGRATION ACTS


Heard at Field House
Determination Promulgated
On 8 January 2014
On 17 April 2014

 


Before

UPPER TRIBUNAL JUDGE conway

Between

z d p
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Mr Waheed
For the Respondent: Mr Deller

DETERMINATION AND REASONS

1. The Appellant is a citizen of India born in 1969. She appealed against a decision of the Respondent made on 25 February 2013 to refuse to revoke a deportation order made on 28 November 2008. She was removed from the UK on 6 November 2009.

2. In brief, her history is that she entered on a visit visa in 2002. She married a British citizen just before her leave expired and was granted leave to remain until 2004. In 2003 she was charged with immigration offences. She failed to attend court and fled to India. She was convicted in absence in 2004. In India she obtained an Indian passport in a false name and in 2005 married another British citizen (Mr O). That year she was granted a visa as the spouse of Mr O valid until 2007. A son (Y O) was born to them in 2006. He is a British citizen. In 2007 she sought ILR as the spouse of a person settled here, which was granted that year. She was rearrested soon after and in 2008 convicted and sentenced for immigration and bail offences. She was sentenced to a total of 24 months' imprisonment on the immigration matters and three months for breach of bail, the bail sentence running consecutively. She was recommended for deportation. After unsuccessful appeals she was deported.

3. In her application for revocation of the deportation order she said she regretted her behaviour. Her relationship with her second husband, Mr O was strong and subsisting. Her greatest punishment is not to be able to care for her son. He has been living on and off in India and UK. However it was decided this arrangement was not fair on him as he was not able to settle in either country. He has been living permanently in the UK since early 2011 with his father who has been a British citizen since 1974. Her son has developed close ties with other family members in the UK.

4. In refusing the application the Respondent accepted that the Appellant is in a genuine and subsisting relationship with Mr O. However, being of Indian ancestry he could relocate or visit as he has been doing. It was also accepted that there is a genuine and subsisting relationship between her and her child. He is young enough to relocate to India where he has lived on and off. If that course of action was not chosen he could visit or keep in touch with his mother by modern means of communication. His father is well able to care for him here. It was accepted that the child, were he to relocate to India would be deprived of the benefits of living as a British citizen but the Respondent considered his interests were outweighed by the serious criminal aspects of the case. There were no exceptional circumstances in this case. The criminal conduct was so serious that in the interests of protecting the public from harm it was considered conducive to the public good not to revoke the deportation order.

5. She appealed. Following a hearing at Taylor House on 30 August 2013 Judge of the First-tier Tribunal Andonian dismissed the appeal. In summary, he found that he did not believe the spouse, Mr O in respect of his evidence, in particular, that he was unaware of the Appellant's previous history and that her arrest in 2007 came as a shock to him. He found that the son sees a lot of both parents variously in India and in the UK and has both sides of the family here and there: 'he is free to go to India at any time and indeed does do that frequently'. He speaks his native language and English fluently and has a home in India and in the UK. When in India he is in communication with his father by phone. When in the UK the family speak on the phone to each other. The judge did not consider there would be a serious interference to family life if the status quo was preserved and the Appellant was not permitted to come to the UK for the full length of her deportation order. Furthermore any interference would be proportionate to the permissible aim of preventing crime and disorder and maintaining proper immigration control. There was no breach of Article 8 nor were there serious circumstances that amount to compelling factors which outweigh the need for continuation of the deportation order. (Paragraph 390 and 391 of the Immigration Rules).

6. She sought permission to appeal which was granted on reapplication to the Upper Tribunal on 24 October 2013.

7. At the error of law hearing before me on 28 November 2013 it was agreed by both parties that the judge had materially erred in law. First, while it was not contended that the judge had not taken some account of the situation of the child by finding, for example, that he sees his mother regularly when his father takes him to India and he is able there to attend school, the judge did not consider the issue of what the child's best interests were, let alone treat those best interests as a primary consideration. Had he done so he would have been required to consider issues such as whether it is in the child's best interest not to have undisturbed and continuous proximity to both parents in one country or that it is reasonable to expect the child to have to go to India to see his mother to receive any sort of consistent education only to be returned to the UK to see his father and where, as the judge appeared to find, his education is compromised by poor attendance at school because of his father's work commitments.

8. Second, the judge's assessment of factors relevant to the Article 8 enquiry was contrary to the evidence and findings of previous judicial proceedings which should have constituted at the very least the starting point for his deliberations on similar issues. The judge rejected the husband's position that when he first met and married the Appellant and until her most recent arrest he had no idea of her criminal history. This is contrary to the findings of both the judge who sentenced and the findings of the Tribunal that dealt with her appeal against deportation historically, both of which accepted that the husband was wholly unaware of his wife's history of deception. The judge's contrary findings do not address at all the finding made by the previous Tribunal and Court. It is significant because it appeared to weigh heavily on the mind of the judge when deliberating on the Appellant's instant appeal and the evidence of the husband in support of it (see [10, 14]). In any event, whilst considering that the husband had knowledge of her criminal past the judge failed to take account of the fact that the child was in no way to blame for, and had no knowledge of, his mother's past behaviour when reaching his conclusion on the proportionality of disrespecting the family life sought to be enjoyed by the child and his parents.

9. The judge also made errors of fact stating for example (at [12]) that there was no evidence as to the school the Appellant has been enrolled in here in the UK. Yet at [14] he referred to such evidence (itself appearing at pp16-18 of the Appellant's bundle).

10. Third, aspects of the judge's findings are irrational. Thus, at [11], the judge rejected the husband's evidence that the Appellant had learned her lesson having served her time in custody and having been absent from her husband and child for the past four years, on the basis that she had failed to appear in court and fled to India and then returned using a false name. Clearly the matters referred to by the judge predated the period in custody and the period of separation from her husband and child and were therefore not a rational basis to reject the grounds upon which it was said the Appellant had learned her lesson.

11. By consent the determination was set aside to be reheard. No findings stood.

12. At the resumed hearing I had before me statements by the Appellant, the Sponsor (Appellant's husband) and the Sponsor's mother (Mrs F O) also a medical letter in connection with Mrs F O. I allowed to be received after the hearing a number of items which it was said were before the First-tier Tribunal but, for reasons unclear, were not with the papers. They were resubmitted by the representatives in a letter dated 14 January 2014. Most of the items concern the Appellant's son (Y O). They include letters from his school and from various medical sources.

13. I heard brief oral evidence first from the Appellant's husband, Mr R O. He adopted his statement. In cross-examination he was asked about his son's behaviour. He said it was erratic, and he was liable to mood swings. At school he had been showing a lack of attention and had been the victim of bullying. There had been problems also with getting him to school on time. He (the witness) was often on shift work. His mother on whom he relied on such occasions is elderly and ill so was not always able to ensure the boy's attendance. Recently the situation had improved. He has been allocated a school nearer to where the family live. He is now attending, is happy, and is no longer being bullied. He has also been assessed and is receiving counselling from a child psychologist.

14. Asked in re-examination when the boy's behavioural problems began, the witness said he had had such all his life. He had been hospitalised as a baby. I then heard from Y O the son of the Appellant and of Mr R O. He is 7 years old. He said that what was contained in his statement was the truth. He said that in recent years he has spent part of his time in India where his mother lives. He does not like living there because of the insects and the heat. He prefers living in the UK. He misses his mother.

15. I heard finally from Mrs F O, the Appellant's mother-in-law. She adopted her statement. She said that her grandson's behaviour at home had been 'abnormal'. He does not listen to her or his father and no one disciplines him. She puts down his behaviour to his mother not being with him. He misses her. When his mother phones he is sometimes angry and aggressive with her telling her to come to the UK. The witness accepted that there had been difficulties getting the boy to school. His father was often away at work and she herself is ill. They now paid a carer to take him.

16. In submissions, Mr Deller said the Appellant's history showed serious criminality. In the normal course she would be expected to remain outside the UK for at least ten years before the deportation order could be revoked. Here the issue was whether the Appellant's family life and in particular the best interests of the child were sufficient to overcome the serious criminality. Reference to psychological and health difficulties of the child were likely to be important. Mr Deller did not seek to argue that it would be reasonable for the family life to continue abroad. The husband had a long history in the UK and the son had the material benefits of being a British citizen.

17. In reply Mr Waheed said that the oral evidence was that the child's problems were in part contributable to the lack of his mother. The sins of the mother were being visited on her son. Were she to remain abroad for ten years the boy would be much older and would have lost the benefit of having her as a parent. The human rights of the child were crucial. Also, her husband was suffering by not having his wife by his side. There was also strain on the mother-in-law who is elderly and ill.

18. The Immigration Rules deal with revocation of a deportation order at paragraph 390ff

'390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:

(i) the grounds on which the order was made;
(ii) any representations made in support of revocation;

(iii) the interests of the community, including the maintenance of an effective immigration control;

(iv) the interests of the applicant, including any compassionate circumstances.

390A. Where paragraph 398 applies [the Respondent] assessing the application 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 maintaining the deportation order will be outweighed by other factors.

391. In the case of an applicant ? who has been deported following conviction for a criminal offence continued exclusion ?

(i) in the case of a conviction which is capable of being spent under the Rehabilitation of Offenders Act 1974, unless the conviction is spent within the meaning of that Act or, if the conviction is spent in less than ten years, ten years have elapsed since the making of the deportation order; or

(ii) in the case of a conviction not being spent under that Act, at any time, unless refusal to revoke the deportation order would be contrary to the Human Rights Convention ?

will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before ? the appellate authorities, or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order ?'

19. In this case it was not disputed that the Appellant's convictions were not spent. As the convictions were for less than 30 months they are capable of being spent.

20. Paragraph 398 (b) applies. Paragraph 399 does not apply: the child's father is able to care for the child in the UK. Paragraph 399A also does not apply.

21. The Secretary of State considered the circumstances mentioned in paragraph 390. I note first the grounds on which the deportation order was made. In January 2008 at Leicester Crown Court the Appellant was convicted of two counts of obtaining leave to enter or remain in the UK by deception and was sentenced to twelve months' imprisonment. She was also sentenced to twelve months' imprisonment for conspiracy to be knowingly concerned in making or carrying out arrangements for securing or facilitating entry of illegal entrants, to run concurrently. She was previously convicted of this crime in February 2004 but failed to appear at her trial having fled to India. She was also sentenced to three months' imprisonment for breach of bail, that sentence to run concurrently with the others.

22. The Respondent noted in detail the sentencing judge's remarks. These included:
'The reality is this - this has been the second time round for this defendant because she cheated the system on two occasions. She knew well what she was getting into and she has shown herself to be a thoroughly devious person ? The first indictment clearly was a well planned and sophisticated scam involving recruitment, false documents and activities in India and substantial funding.'

23. The Respondent went on to note the comments of the tribunal panel who considered the appeal against deportation:
'We find that there are some deportation cases such as this where the personal criminal conduct of the proposed deportee is such by its very nature that it is said that public policy requires deportation even though there may be no evidence of a propensity to re-offend. This Appellant's conviction comes within such category. We would again refer to the particular circumstances of this Appellant's serious offending and the judge's sentencing remarks. We note that this Appellant was guilty of a number of very serious offences. We find that the Respondent is correct in her conclusion that the public interest requires deportation.'

24. The Respondent also noted that the Appellant had used three alias names whilst living in the UK.

25. The Respondent went on to consider the representations made by the Appellant. In summary, that she had remarried Mr R O in January 2011 under Islamic law since it was alleged that she was not divorced when she married her present husband in 2005. They have a son born in 2006 who is a British citizen. The relationship between Appellant and her husband is strong and subsisting. She deeply regrets her actions and has a great feeling of guilt at not being able to see and care for her son and this is the greatest punishment in itself.

26. Their son has been living on and off in India so that both parents could spend time with him. However it was decided that this arrangement was not fair on him as he was not able to settle in either country. He has been living permanently since early 2011 with his father. The child has developed close ties to the UK with his extended family. It is not reasonable for the child and his father to relocate to India. The father has lived in the UK since 1974 and as a British citizen since 1979. He has worked for a railway company since 1974 and has developed many close ties over the last 37 years. He has siblings and other relatives here to whom he is close.

27. The Respondent in her letter accepted that the Appellant is in a genuine and subsisting relationship with her husband and that she has at least some degree of financial dependency on her husband. However, it was considered that it was open to her husband to relocate to India, or that if he chose not to, he could visit and otherwise keep in touch through modern means of communication as he had, indeed, done since she was deported in 2009.

28. The Respondent also accepted that the Appellant has a genuine and subsisting relationship with her son but took the view that he was of an age when he would be able to adjust to life in India. He had been doing so on and off and there was no indication that he had suffered undue hardship. He could integrate into the Indian educational system. There was no indication of medical, social, financial circumstances that would prevent relocation of the child and his father to India.

29. The Respondent noted that the child was a British citizen by birth and that such conferred substantial rights on him. However, the Respondent concluded that his interests were outweighed by the criminal aspects of the case.

30. The Respondent concluded, as the judge who dealt with the deportation had concluded, that the criminal conduct was so serious that public interest in maintaining the deportation outweighed other factors.

31. The Respondent ended by stating that there were no exceptional circumstances which warranted departure from that position, repeating that her husband could relocate to live in India, being able to return as he wished to visit family members here.

32. As indicated, paragraph 390A states that 'it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors'.

33. Paragraphs 40-46 of MF (Nigeria) v SSHD [2013] EWCA Civ 1192 are particularly pertinent to the question of 'exceptional circumstances' and public interest.

34. At [43] 'The word "exceptional" is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the "exceptional circumstances".
[44] We would, therefore, hold that the new Rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence. ?
[45] Even if we were wrong about that, it would be necessary to apply a proportionality test outside the new Rules ? Either way, the result would be the same.'

35. I note also at this stage the importance of deterrence, in considering the public interest. As the Court of Appeal said in AM v SSHD [2012] EWCA Civ 1634:
'In measuring proportionality the public interest in deterrence is a material and necessary consideration. ? It is an indelible feature of the balancing exercise that the decision maker weighs the consequences of deportation against the full import of the legitimate aim to be achieved. ?'

36. In considering this case I may say that no issues of credibility were taken against the witnesses who gave evidence or indeed of the Appellant, through her statement. In summary, I find that the relationship between the Appellant and her husband is genuine and subsisting. It is clear that he was not aware until her arrest in 2007 of her previous history. It is accepted that he and the Appellant are lawfully married.

37. I find that the child has a genuine and subsisting relationship with the Appellant. It is clear that efforts have been made to continue family life by the father and son spending time each year with the Appellant in India until 2011 when it was felt that it was too unsettling for the child and was discontinued. I accept that the child did not find living in India easy particularly due to the heat. I have no doubt that he misses his mother.

38. I require to consider the best interest of the child, who is 7 years old, as a primary consideration. As Lady Hale said in ZH (Tanzania) v SSHD [2011] UKSC 4:
'This does 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.'

39. She then asked what is encompassed in the best interests of the child, concluding that it will involve asking whether it is reasonable to expect the child to live in another country. Relevant to this include the level of the child's integration in this country and the length of absence from the other country. Lady Hale also said: 'Acknowledging that the best interests of the child must be a primary consideration in these cases raises the question of how these are to be discovered. An important part of this is discovering the child's own views'. Further, she noted that a child is not to be held responsible for the moral failures of either of his parents.

40. In this case I consider that the correct starting point in considering the welfare and best interests of a young child is that he should live with and be brought up by his parents, subject to any very strong contra -indication. It is generally in the interests of children to have both stability and continuity of social and educational provision and the benefit of growing up in the cultural norms of the society to which he belongs. Lengthy residence in a country can lead to development of social, cultural and educational ties that it would be inappropriate to disrupt, in the absence of compelling reasons to the contrary.

41. In this case the child is nearly 8 years old. He has, apart from periods in India with both parents until 2011, spent his whole life in the UK where he was born. Such is lengthy residence. He is no longer a very young child focused solely on his parents rather than his peers. He is also importantly, a British citizen. As Lady Hale said in ZH: 'Although nationality is not a "trump card" it is of particular importance in assessing the best interests of a child'. The benefits that citizenship brings must not readily be discounted.

42. Here, there is evidence that the child has behavioural difficulties. The oral evidence to that effect is supported by letters from his school and from medical sources. It was not suggested that these were solely the consequence of the absence of his mother. He has had problems since birth. However, I find of some assistance a letter from a child psychologist at Homerton University Hospital (9 August 2013) stating that the child is unsettled by living in both countries, here and abroad with his mother. Also, a letter from the Deputy Head of his primary school in which she states: 'With regard to the impact his mother not being with him is having: this could only be my opinion, I do feel it would definitely have a positive impact to have his family back together'.

43. I conclude on the evidence before me looked at in the round that it is in the best interests of the child to live with both parents and to do so in the UK. This is a young child, thus not at an age where he is starting to establish an independent life, but rather an age when maternal support is expected and necessary. He wants to lives with his mother as well as his father.

44. Contrary to what was stated in the Explanatory Statement, Mr Deller did not seek to argue that the child and his father could reasonably go and live with his mother in India. In my judgment he was correct to take that view. As indicated, the intrinsic importance of citizenship should not be played down. As a British citizen the child has rights which he would not be able to exercise if he moved to another country. He would lose the advantage of growing up and being educated in his own country, his own culture and his own language.

45. The father is also a British citizen who has lived and worked in the UK for 37 years. All his ties, other than with his wife, are with the UK.

46. I have given significant weight to the child's British nationality and sought to assess his best interests, concluding that these are that he continues to live in the UK, and that he does so with both parents. It cannot, in my judgement, be the case that the child and his father could maintain contact with the Appellant by, as the Respondent puts it in the Explanatory Statement, visiting and by 'modern methods of communication'. Families normally live together. Family life consists of the interdependent bonds between spouses or stable partners and between parents and children with particular strength being placed upon the interests and welfare of minor children. It is not normal for family life to be enjoyed by correspondence and occasional visits.

47. However, it is necessary to take account of the whole circumstances which include the undisputed fact that the Appellant's history involved serious dishonesty.

48. In considering deterrence and the public interest I note first that there is no suggestion that the Appellant is likely to reoffend.

49. The Appellant has been absent from this country for nearly five years. I see no reason to doubt her comment in her statement:
'I will never be making the same mistake again and neither will I be reoffending as the passage of time has taught me the biggest and most painful lesson of all and that is not being able to be with my innocent son. He does not even know why I am not in the country with him.'

50. Her son was, of course, born in 2006 which is after her initial dishonesty which resulted in her fleeing to India in 2004 to avoid trial, and also after her dishonest return to the UK in 2005. In finding mitigating factors the sentencing judge, as well as noting her early plea of guilty to the second indictment, her otherwise good character, a letter of remorse, also noted that 'events have moved on because she has remarried and now has a young son'. As indicated, she has also been out of the country a considerable length of time.

51. I have no doubt from the evidence before me that the effect on the Appellant of being separated from her child for most of his recent formative years has been particularly severe. I consider that the deterrent effect on her has been very significant. In no sense has she got away with her criminality, nor would she be seen as such by others. Whilst having little sympathy with her as an individual, the high risk is that by her continued exclusion it is the child who increasingly suffers as he grows up.

52. I cannot see an argument that, in light of the circumstances of this particular case, early revocation of the deportation order would weaken the principle of deterrence as viewed by wider society.

53. In looking at the evidence as a whole it does seem to me that there are 'exceptional circumstances' in this case which outweigh the public interest in maintaining the deportation order.

54. The appeal succeeds under the Rules.

55. I note finally paragraph 392 which states that revocation of a deportation order does not entitle the person concerned to re-enter the UK: it renders the person eligible to apply for admission under the Rules.

Decision
The decision of the First-tier Tribunal contained a material error of law. It is set aside and remade as follows:
The appeal is allowed under the Immigration Rules.

Direction Regarding Anonymity - Rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.






Signed Date


Upper Tribunal Judge Conway