(Immigration and Asylum Chamber) Appeal Number: HU/12545/2018
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 9 July 2019
On 8 August 2019
THE HONOURABLE MRS JUSTICE CUTTS
(SITTING AS AN UPPER TRIBUNAL JUDGE),
UPPER TRIBUNAL JUDGE blum
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(anonymity direction MADE)
For the Appellant: Mr C Avery, Senior Home Office Presenting Officer
For the Respondent: Mr A Syed-Ali, Counsel, instructed on a Direct Access basis
DECISION AND REASONS
1. The Secretary of State for the Home Department (hereafter SSHD) appeals against the decision of Judge of the First-tier Tribunal Cohen (the judge) who, in a decision promulgated on 18 April 2019, allowed the appeal of MS (hereafter claimant) against the SSHD's decision of 31 May 2018 to refuse his human rights claim.
2. The claimant is a national of Pakistan who was born in 1985. He entered the UK in February 2009 as a student and was later granted further leave to remain as a Tier 1 (Post Study Work) Migrant. He married a Lithuanian national and was issued with an EEA residence card based on this relationship. This was a sham marriage.
3. On 4 April 2018 the claimant was convicted of an offence relating to the facilitation of breaches of UK immigration law and received a sentence of 3 years imprisonment. On 18 April 2018 the SSHD decided to make a deportation order against him pursuant to s.32(5) of the UK Borders Act 2007 and, on the same day, refused the claimant's human rights claim. The human rights claim was based on the claimant's relationship with IS, his British citizen partner, and NB, their daughter born in February 2017.
4. The claimant appealed the SSHD's decision refusing his human rights claim to the First-tier Tribunal pursuant to s.82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act).
The decision of the First-tier Tribunal
5. Filed in support of the claimant's appeal was a bundle of documents running to 269 pages. Included in the bundle were, inter alia, witness statements from the claimant and IS, a report by an Independent Social Worker (ISW) dated 10 March 2019, an OASys Assessment dated 6 March 2019, and 34 pages of IS's medical notes. There was no specific medical report in respect of IS and no details of any counselling she may have undertaken. The bundle of documents also contained the Sentencing Remarks and documents confirming that IS and NB visited the claimant in prison. There were also copies of certificates obtained by the claimant whilst in prison. The judge heard oral evidence from both the claimant and IS.
6. We summarise the judge's pertinent findings. The claimant was a model prisoner who participated in numerous courses and who undertook positive work with an organisation called User Voice. He successfully completed a job search in prison. The judge found the claimant was a reformed character who had been assessed as posing a generally low risk of serious harm or future reoffending.
7. The claimant had a strong relationship with his partner and child. They frequently visited him in prison using public transport. The claimant and IS jointly raised their daughter. His deportation would breach these family life relationships. At  the judge found it "extremely significant" that IS was estranged from her own family in the UK. Despite her having suffered mental health problems "for over 13 years" and having made a suicide attempt and self-harmed in 2006, IS had undertaken "remarkable efforts" to bring up her daughter and the ISW reported that IS "has done a fantastic job." IS nevertheless reported to the ISW that she had struggled in bringing up her daughter single-handedly and had no one to assist her.
8. At  the judge set out the requirements of paragraph 399(a) of the immigration rules. This essentially provides that deportation would not be in the public interest if its impact would be unduly harsh on a child with whom the deportee has a genuine and subsisting parental relationship.
9. At  the judge found the SSHD's view that there would be no unduly harsh impact on the claimant's daughter to be "perverse in light of the exceedingly strong, contrary [sic] and consistent evidence" before him.
In the report of the independent social worker, it is indicated that to separate the [claimant's] daughter, from her father and the effects that the [claimant's] removal would have on his wife noting her precarious mental health would be significant. The [claimant's] daughter knows England and has known no other home. She is at an important stage of her development. She has continued to have significant contact with her father. Her mother has done [sic] exceptionally good job in raising her in the absence of the [claimant] but it was not anticipated that situation could remain in the long term. She was buoyed by the fact that the [claimant] would hopefully return and assist her with raising their child in due course. If the [claimant] was removed from the UK and his wife remained in the UK looking after [their daughter] there would be issues with her ability to cope and this would possibly lead to the requirement of social services intervention. The negative impact of the [claimant's] removal from the UK on the sponsor would have knock-on effects on her ability to provide adequate physical and emotional support to [her daughter]. There was a question mark about the sponsor supporting knows needs [sic] if the [claimant] was removed for an indeterminate period. The conclusion of the report is strong and irrefutable. It is further substantiated by correspondence from the [claimant's] wife's GP. I find that what is set out before me, particularly in the independent social workers report is a clear conclusion that the removal of the [claimant] would be unduly harsh in respect of the effect that it would have on his daughter and wife.
10. At  the judge concluded, with reference to the ISW report, that it would be unduly harsh to expect the claimant's daughter to relocate to Pakistan. It was noted that both IS and NB had "a close network of friends in Slough." The judge stated that social workers investigated IS's ability to raise her daughter in the claimant's absence following his incarceration and that "they were concerned in the light of her mental health issues." The judge found in the circumstances that the claimant's deportation, and therefore separation from his daughter's life, "... would either not be possible or have significant negative effects." It was in NB's best interests for the claimant to remain in the UK as part of the family unit. The judge said he had regard to appropriate case law including KO (Nigeria)  UKSC 53 and MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor  EWCA Civ 705.
11. At  the judge stated,
I have regard to public interest concerns are [sic] set out in S117(c) of the Immigration Rules. In light of the [claimant's] rehabilitation in prison, the fact that a British child is involved and that the [claimant] previously worked and would support his family in the UK and pay tax and that his removal is likely to necessitate significant input from social services and the whole services at a cost of [sic] the taxpayer, I do not find that the [sic] in the public interest to deport the [claimant] in all the circumstances.
12. The judge concluded that the claimant's deportation would be disproportionate and allowed the human rights appeal.
The challenge to the judge's decision
13. The grounds of appeal content that the judge failed to lawfully apply the 'unduly harsh' test and that he was not entitled, based on the evidence before him and some of his findings, to conclude that the test was met. The grounds criticise the judge's reliance on the ISW report which indicated that the physical and emotional needs of his daughter were being met and that IS would continue to meet those needs, and that there was no suggestion that social services thought any intervention was necessary. Whilst it was accepted that there would be obvious difficulties in providing for NB as a lone parent, there was insufficient evidence to support the judge's finding that the impact on IS and NB would be unduly harsh. The grounds further submit that the possibility of social services' involvement and the potential cost of such involvement was, at its highest, neutral and speculative, and that the judge should have proceeded on the basis that if social services support was acquired they would perform the duties under the law and that this was a relevant consideration not taken into account.
14. In his oral submissions Mr Avery submitted that the judge failed to appreciate the high threshold needed to demonstrate undue harshness and that the judge gave inadequate reasons in support of his undue harshness finding. The medical evidence relating to IS's mental health was limited and the ISW report relied on information provided by IS (as opposed to any independent evidence). The ISW report described the normal consequences of deportation on IS and NB and did not support the judge's finding in respect of undue harshness.
15. Mr Syed Ali relied on his skeleton argument and invited us to consider the case law surrounding s.117B(6) of the 2002 Act, although once it was pointed out to him that s.117B(6) did not apply in the case of someone subject to deportation he made no further submissions on the point. He submitted that the judge was entitled to his factual findings in respect of undue harshness and that the SSHD's grounds amounted to no more than a disagreement with findings rationally open to the judge. The judge was entitled to find, in particular, that IS was "... buoyed by the fact that the [claimant] would hopefully return and assist her with raising their child in due course." Mr Syed-Ali accepted that there was no expert medical evidence relating to IS.
16. Having considered the submissions we informed the representatives that we were satisfied the judge erred on a point of law in making his decision such that the decision had to be set aside. At that stage there had been no application to adduce any further evidence pursuant to rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 and Mr Syed-Ali could not identify any new evidence that showed a change in circumstances or which could otherwise assist the Tribunal. We indicated to the parties that we would proceed to remake the decision based on the evidence before the Tribunal and in line with the Directions issued by the Upper Tribunal dated 13 June 2019. We heard brief submissions from Mr Avery and Mr Syed-Ali and then reserved our decision.
17. Following the error of law hearing the Upper Tribunal received a letter from Temple Court Chambers and further documents. The letter was dated 9 July 2019 and was sent by fax at 15:53, following the conclusion of the Tribunal hearing. The letter apologised for the "belated forwarding of the documents" but no explanation was given for the failure to make a proper application to adduce the new evidence pursuant to rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, or to explain the considerable delay in providing the documents. The documents consisted of letter, dated 30 April 2019, issued to arrange an appointment for NB with the Specialist Children's Service of the Berkshire NHS Foundation Trust, a letter from Slough Children's Services Trust dated 8 April 2019 and addressed to IS informing her that details of NB's needs could be met by other services and that the details had been passed on to Early Help Services, and a Speech and Language Therapy Drop-In Clinic Report dated 18 March 2019. Despite the absence of any formal application to adduce this new evidence, having regard to the overriding objective in rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008 we decided to admit this further evidence.
Error of law
18. We begin our consideration of the judge's decision by observing that it contains many typographical errors. Whilst not material to our task of identifying a legal error, this does point to a general lack of care for the preparation of the decision. There are additional errors in the judge's description of the applicable law. At  the judge states that there is a "presumption" in favour of the claimant's deportation. Section 32(4) of the UK Borders Act 2007 establishes that, for the purpose of section 3(5)(A) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good. As the claimant was sentenced to a term of imprisonment in excess of 12 months there is no presumption; his deportation is, by statutory mechanism, conducive to the public good.
19. The judge found that the claimant's deportation would have an unduly harsh impact on IS and NB. The judge's assessment of unduly harsh is made by reference to paragraph 399(a) of the immigration rules, the substance of which is mirrored in s.117C(5) of the 2002 Act. The meaning of "unduly harsh" has been considered in several authorities. In MK Sierra Leone  UKUT 223 (IAC) it was noted at paragraph 46 that "unduly harsh" does not equate with uncomfortable, inconvenient or merely difficult ... "harsh" in this context, denotes something severe, or bleak ... the addition of the adverb "unduly" raises an already elevated standard higher. This was approved in KO (Nigeria)  UKSC 53. At paragraph 23 the Supreme Court observed that one is looking for "a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent" (see also the decision in RA (s.117C: "unduly harsh"; offence: seriousness) Iraq  UKUT 123 (IAC)) .
20. Although he makes fleeting reference to KO (Nigeria) the judge does not otherwise consider what is meant by unduly harsh. Although this does not itself indicate that the judge failed to appreciate the nature of the test involved, it does introduce some initial concern that his assessment may not have been tethered to judicial interpretation of the test. This would not amount to an error of law if it was apparent that the judge had in fact lawfully applied the unduly harsh test.
21. In concluding that the impact of the claimant's deportation on both IS and NB would be unduly harsh the judge placed significant reliance on the ISW report. We do not doubt that the ISW is both qualified and sufficiently experienced to write a welfare report. The ISW observed IS and NB, but did not meet the claimant. It is not clear what, if any, independent evidence was considered by the ISW. She noted, for example, that IS suffered with postnatal depression and could not return to work, and refers to IS's "mental health needs", but no reference is made to any medical evidence or GP or maternity notes. Nor do the GP notes make any reference to post-natal depression. The assertions in the welfare report relating to IS's mental health appear to have stemmed from what IS told the ISW rather than by reference to independent evidence.
22. The ISW noted that IS's "mental health needs", coupled with loneliness and little support from her family and the absence of friends in the local area could "potentially" affect NB. It is not however clear what IS's "mental health needs" were as there was no psychiatric or psychological report, and the claim that there are no friends in the area was inconsistent with the evidence given to the judge that IS had "a close network of friends in Slough" . The medical notes also indicated that one or two of the claimant's friends had rung to offer IS support. In her evidence before the First-tier Tribunal IS said she was still estranged from her own family, but since her father had died there had been "a slight thawing of relations" . The welfare report stated that IS "requires support to help bring up her daughter" but there was no assessment of any support that could be provided by Social Services and the report did not clarify what type of support would be required. Although stating that IS "has struggled considerably to cope with her mental illness" since the claimant's incarceration no details were provided of the nature of IS's mental illness or the nature of her struggles. We note that the ISW was satisfied that IS had a good attachment with her daughter and that NB was thriving in her mother's care. According to the welfare report NB "looked happy and had no obvious emotional needs."
23. The ISW reported IS's concerns that she "might" struggle to manage on her own and feared that this "might" affect her mental health such that she "might" require medication to manage, and that this would affect her ability to appropriately look after her daughter. IS was however able to ensure NB's safety and welfare throughout the period of the claimant's incarceration. The ISW's concerns were also expressed in particularly speculative terms. There was no assessment of the probability of these events occurring, and no account was taken of the mental health resources available to IS. We note, with reference to the medical notes, that IS was able to access support from a crisis team in April 2018 and that there appeared to have been a referral to Talking Therapies in February 2019. The medical notes indicated that IS had no thoughts of suicide or self-harm and that her baby was a strong protective feature.
24. We have considered IS's medical notes in some detail. We acknowledge that IS suffered from auditory hallucinations and suicidal ideation in December 2006. We have however been unable to locate any independent evidence that IS suffered mental health problems "for over 13 years." The medical notes do not support such a finding. A consultation on 20 February 2019 disclosed that IS was stressed and anxious about the claimant's immigration circumstances but that she was happy with her baby, she had no thoughts of harming herself and was not suicidal. She was prescribed medication for insomnia. The medical notes disclosed that in March 2018 she was referred to the community mental health team as she was anxious and in a low mood, and medical notes from April 2018 indicated that she was seeing a Crisis Team who provided her with weekly support. Her self-harm thoughts were lessened because of this support and her daughter was identified as a protective factor.
25. In her statement IS said she suffered from "mental health" issues and was under the care of her GP. We acknowledge that the GP notes indicate that IS was stressed and anxious and suffered from insomnia, and that she was referred to Talking Therapies. IS does not however appear to have been prescribed anti-depressant medication and there is no medical report detailing the nature and severity of any mental health condition.
26. The judge stated that social workers investigated IS's ability to raise her daughter in the claimant's absence following his incarceration and were concerned in the light of her mental health issues. There was however no independent evidence in support of this finding. The claimant's bundle of documents contained no letter, report or other documentation from social services, and no mention was made of any concern by the Social Services in the ISW report. Indeed the ISW report stated, at paragraph 23, that the family was not known to social services.
27. The ISW stated, "If the [claimant] was removed from the UK and his wife remained in the UK looking after [their daughter] there would be issues with her ability to cope and this would possibly lead to the requirement of social services intervention." The ISW does not however identify the "issues" with IS's ability to cope, there was no mental health report supporting this assertion, and there was no independent evidence of any intervention or concern on the part of social services. Nor was there any independent evidence that the claimant's deportation would "possibly" lead to social services intervention. The ISW noted that NB had no known health needs and that she was thriving in her mother's care. The family were registered with a dentist, GP and optician and regularly attended healthcare appointments. The ISW stated that NB's parents "have no health needs which affect their ability to look after their daughter."
28. For the reasons given above we are satisfied that the evidence before the judge was incapable of supporting his conclusion that the impact on either IS or NB would be unduly harsh. There was insufficient evidence that IS's mental health was sufficiently precarious such as to undermine her ability to care for her daughter, or that the negative impact of his deportation would have knock-on effects on her ability to provide adequate physical or emotional support to NB.
29. We are additionally satisfied that, to the extent that he may have engaged in an assessment under s.117C(6) of the 2002 Act (whether there were 'very compelling circumstances' over and above those in Exception 2 in s.117C(5)), the judge placed weight on insufficiently relevant matters. At  the judge placed clear weight on the extent of the claimant's rehabilitation. In RA (s.117C: "unduly harsh"; offence: seriousness) Iraq  UKUT 123 (IAC) the President of the Upper Tribunal (IAC) considered arguments on the issue of rehabilitation. At  and  he had this to say.
As the Court of Appeal pointed out in Danso v Secretary of State for the Home Department  EWCA Civ 596, courses aimed at rehabilitation, undertaken whilst in prison, are often unlikely to bear material weight, for the simple reason that they are a commonplace; particularly in the case of sexual offenders.
As a more general point, the fact that an individual has not committed further offences, since release from prison, is highly unlikely to have a material bearing, given that everyone is expected not to commit crime. Rehabilitation will therefore normally do no more than show that the individual has returned to the place where society expects him (and everyone else) to be. There is, in other words, no material weight which ordinarily falls to be given to rehabilitation in the proportionality balance (see SE (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 256, paragraphs 48 to 56). Nevertheless, as so often in the field of human rights, one cannot categorically say that rehabilitation will never be capable of playing a significant role (see LG (Colombia) v Secretary of State for the Home Department  EWCA Civ 1225). Any judicial departure from the norm would, however, need to be fully reasoned.
30. RA (Iraq) received approval from the Court of Appeal in ( Binbuga (Turkey) v Secretary of State for the Home Department  EWCA Civ 551), which indicated that rehabilitation or lack of re-offending should carry little or no material weight in establishing 'very compelling circumstances'. To the extent that the judge has attached material weight to the claimant's rehabilitation, he erred in law. Nor was the judge entitled to attach weight to the possibility that the claimant's deportation would "necessitate significant input from social services and the whole services at a cost of the taxpayer." This was an overly speculative conclusion and one unsupported in the evidence.
31. For the reasons set out above we are satisfied that the judge's decision must be set aside.
Remaking the decision
32. In his very brief submissions on the remaking of the decision, Mr Syed-Ali relied on his skeleton argument and invited us to consider the documents in the claimant's bundle, although he did not particularise any particular document.
33. In assessing whether the impact on NB would be unduly harsh within the terms of paragraph 399(a) of the immigration rules, and whether the impact on both NB and IS would be unduly harsh within the terms of s.117C(5) of the 2002 Act, we have considered, inter alia, the statements from the claimant and IS, the oral evidence given before the First-tier Tribunal as recorded in the First-tier Tribunal decision, and the documents in the claimant's bundle, including the medical notes relating to IS, the ISW report, the family pictures, letters and cards, the evidence of the certificates obtained by the claimant whilst in prison and his health record.
34. Following the hearing we received the additional documents identified at paragraph 17 above. These indicate that NB has been referred to the Specialist Children's Service of Berkshire NHS Foundation Trust. A Speech & Language Therapy Drop-In Clinic Report dated 18 March 2019 identified ID's concerns with NB's general development and communication skills. We have found the report to be of limited assistance. Whilst it indicates some things that NB finds it difficult to do, it does not describe the nature or severity of any developmental issue. Nor does it suggest that the developmental issues have occurred as a result of the claimant being subject to a deportation order, or that the claimant's presence would make any material difference to any developmental issue. The report does not suggest that IS is incapable of ensuring NB receives adequate support or treatment.
35. We accept that the claimant has a strong family life relationship with both IS and NB. We accept, pursuant to s.55 of the Borders, Citizenship and Immigration Act 2009, that it is in NB's best interests that she remains living in the UK with both her mother and father. This stems from the evidence of both the claimant and IS to the effect that NB has a strong bond with her father and that he plays a parental role in her upbringing. This also stems from the evidence in the ISW report.
36. We remind ourselves, with reference to the authorities identified in paragraph 19 above, of the unduly harsh test. We have already considered the ISW report and the evidence relating to the impact of deportation on IS and NB in detail above. There is little point repeating that analysis. Whilst we are mindful of the fact that IS had serious mental health issues 13 years ago, we are not persuaded that any current mental health issues prevent her from ensuring the welfare and safety of her daughter, or that the claimant's deportation would have a significant detrimental impact on her own mental health. The evidence in support of such a contention is lacking. We do not doubt that IS would face difficulties in bringing up her daughter on her own, but the evidence before the First-tier Tribunal suggests that she does have a network of support in Slough and she has already been able to avail herself of NHS support. There is nothing to indicate that other Social Services support would not be forthcoming if needed. We note the observations in the ISW report that IS and her daughter have a strong bond, that IS has never neglected her daughter's needs, that NB is a happy child and is thriving in her mother's care, and that the family is not known to social services.
37. We don't doubt that IS and NB will suffer distress if the claimant is deported, and that their lives will in a number of ways be made more difficult than they are at present. However, as was recently pointed out in SSHD v PG (Jamaica)  EWCA Civ 1213 , those, sadly, are the likely consequences of the deportation of any foreign criminal who has a genuine and subsisting relationship with a partner and/or child in this country. We note that, whilst the parental relationship cannot effectively be replicated at a distance, there is nothing to suggest there would be a complete severance of contact between the claimant and IS and NB. We consequently find that the claimant's deportation would not have an unduly harsh impact on either IS or NB.
38. In determining whether there are very compelling circumstances, with reference to s.117C(6) of the 2002 Act, such as to render the claimant's deportation disproportionate under Article 8, he is entitled to rely on matters identified in Exception 2 in s.117C (there being no dispute that Exception one does not apply), but he needs to point to features of his case of a kind mentioned in Exception 2, or features falling outside the circumstances described in that Exception which makes his claim based on Article 8 especially strong ( NA (Pakistan) v SSHD  EWCA Civ 662 , at  to ; RA (s.117C: "unduly harsh"; offence: seriousness) Iraq  UKUT 123 (IAC), at ). We consider the seriousness of the claimant's offending. The Sentencing Remarks indicated that the claimant entered a sham marriage and, in addition to obtaining a residence card by deception, he acted as a go-between for at least one other Pakistani group and played a part in arranging marriages of convenience in August 2013. The sentence of 3 years reflects the relative seriousness of the claimant's offending. We accept that the claimant poses a low risk of serious harm to the public and a low risk of reoffending, and that he has been successfully rehabilitated. We note however that rehabilitation would not usually attract any material weight (see RA (Iraq), above at paragraph 29). We again have regard to our previous consideration of the impact that deportation would have on both IS and NB, the state of health of both IS and NB, the impact on NB of being separated from her father during the formative years of her life, and the difficulties that IS is likely to encounter in raising a child on her own.
39. In the Court of Appeal decision in Rhuppiah  UKSC Sales LJ referred to the "appropriately high threshold of application" for the 'very compelling circumstances' test. This chimes with what was said in Hesham Ali  UKSC 60 (at ) that 'very compelling circumstances' means "a very strong claim indeed." In RA (Iraq), a decision of the President of the Upper Tribunal (IAC), the test in s.117C(6) was described as "very demanding." Having holistically considered the evidence before us, and for the reasons given, we are not satisfied that the high threshold for demonstrating the existence of very compelling circumstances has been met.
Notice of Decision
The First-tier Tribunal's decision contain an error on a point of law requiring it to be set aside.
We remake the decision, dismissing MS's human rights appeal.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the respondent in this appeal is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the respondent and to the appellant. Failure to comply with this direction could lead to contempt of court proceedings.
D.Blum 30 July 2019
Upper Tribunal Judge Blum