(Immigration and Asylum Chamber) Appeal Number: HU/14192/2018
THE IMMIGRATION ACTS
Heard at Manchester CJC
Decision & Reasons Promulgated
On 29 March 2019
On 03 April 2019
UPPER TRIBUNAL JUDGE PLIMMER
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
ANONYMITY DIRECTION MADE
For the appellant: Mr Bates, Senior Home Office Presenting Officer
For the respondent: Ms Faryl, Counsel
DECISION AND REASONS
Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant.
1. In a decision sent on 25 January 2019 I set out the reasons for deciding that the decision of the First-tier Tribunal ('FTT') dated 9 October 2018, in which it allowed the appeal of the respondent ('ZK'), contains an error of law such that it is set aside. I found that the FTT's decision was inadequately reasoned. I focused attention upon the FTT's failure to direct itself to and apply the high threshold required by the "unduly harsh" test for the purposes of Exception 2, as contained in s. 117C(5) of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act').
2. Although I did not expressly refer to it, the FTT's finding that Exception 1 in s. 117C(4) of the 2002 Act applies, is also inadequately reasoned. The FTT failed to explain why the obstacles to integration said to exist, can properly be described as "very significant". The FTT referred to the wrong test at , omitting the word "very". The FTT adopted the reasoning in the skeleton argument submitted on behalf of ZK, without explaining why this was preferred over the detailed submissions in the SSHD's decision letter (see in particular page 8 of the decision) and those made orally by the SSHD's representative at the hearing.
3. I now remake the decision.
4. At the beginning of the hearing, the representatives agreed the legal issues to be determined and also accepted that the factual matrix is mainly undisputed. I first set out a summary of the legal framework. This assists in illustrating the legal issues the legal representatives agreed are to be determined by me.
5. Paragraphs 399 and 399A of the Immigration Rules are reflected within section 117C of the 2002 Act, which provides as follows:-
" 117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where-”
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted."
6. It is to be noted that the question in s. 117C(5) as to whether "the effect" of C's deportation would be "unduly harsh" is broken down into two parts in paragraph 399, so that it applies where:
"(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported."
7. The correct approach to paragraph 399 and s. 117C(5) of the 2002 Act has recently been considered by the Supreme Court in KO Nigeria v SSHD  UKSC 53. In the only judgment, Lord Carnwath said this at :
"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. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of relative levels of severity of the parent's offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence."
8. Lord Carnwath also approved of the following guidance of the term "unduly harsh" at :
"Authoritative guidance as to the meaning of "unduly harsh" in this context was given by the Upper Tribunal (McCloskey J President and UT Judge Perkins) in MK (Sierra Leone) v Secretary of State for the Home Department  UKUT 223 (IAC),  INLR 563, para 46, a decision given on 15 April 2015. They referred to the "evaluative assessment" required of the tribunal:
"By way of self-direction, we are mindful that 'unduly harsh' does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. 'Harsh' in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb 'unduly' raises an already elevated standard still higher."
9. It is therefore now clear from KO Nigeria that the assessment of "unduly harsh" does not require a balancing of the relative level of severity of the parent's offence. The assessment solely requires a careful consideration of whether the elevated threshold is reached from the point of view of either the child or partner. If that threshold is met, then deportation would be a breach of Article 8 of the ECHR and no further analysis is required.
10. In NA (Pakistan) v Home Secretary  EWCA Civ 662,  1 WLR 207 , Jackson LJ, giving the judgment of the Court of Appeal, concluded that a medium offender such as ZK can rely upon s. 117C(5), but like other foreign criminals:
"would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 (and in paragraphs 399 or 399A of the 2014 rules), or features falling outside the circumstances described in those exceptions and those paragraphs, which made his claim based on article 8 especially strong".
11. It follows that if Exceptions 1 and 2 do not apply, I must go on to consider all matters in the round and whether viewed cumulatively, these are sufficient to give rise to very compelling circumstances - see the general approach in Hesham Ali v SSHD  UKSC 60 and KE (Nigeria) v SSHD  EWCA Civ 1382, together with SSHD v Garzon  EWCA Civ 1225 at .
12. As I have recorded above, the factual matrix to the appeal is largely agreed, and can be summarised as follows. ZK was born in 1994 and is nearly 25. He is a citizen of Pakistan, having arrived in the United Kingdom ('UK') in 2001 with his mother, when he was a young child (seven years old). He was granted ILR in 2008. He has therefore been lawfully present in the UK for most of his life.
13. ZK married his wife, MI, a British citizen in 2013. MI was born in Pakistan in 1994 and is 25 years old. She came to the UK with her father and siblings in 2009 when she was about 15. ZK and MI met at college and were friends before getting married.
14. The couple have two British citizen children, aged four (A) and two (B). They all live with ZK's extended family (including ZK's mother, brother, sister and nephew) in Manchester. The FTT's factual findings that ZK is a loving father and husband and has genuine and subsisting relationships with MI and their two children, are preserved.
15. ZK was sentenced to 12 months imprisonment, having pleaded guilty to fraud by abuse of position and breach of conditional discharge. He was released in November 2018, having served six months. All the evidence from the probation service indicates that he presents a low risk of reoffending.
16. Given the extent of the matters accepted, the representatives agreed that there are four broad issues in dispute.
(1) Would there be very significant obstacles to ZK's integration into Pakistan for the purposes of Exception 1(c) of s.117C(4) of the 2002 Act? The SSHD accepts that ZK has been lawfully present in the UK for most of his life, and is socially and culturally integrated here. If not;
(2) Would it be unduly harsh for the qualifying children and MI to live in Pakistan for the purposes of Exception 2 of s. 117C(5) of the 2002 Act? If yes:
(3) Would it be unduly harsh for the qualifying children and MI to remain in the UK without ZK for the purposes of Exception 2 of s. 117C(5) of the 2002 Act? If not;
(4) Are there very compelling circumstances, over and above those described in Exceptions 1 and 2, for the purposes of s. 117C(6) of the 2002 Act?
17. For the avoidance of any doubt, both representatives agreed that (2) remains a disputed issue and the suggestion in my error of law decision at  that the SSHD accepted it would be unduly harsh for the children to live in Pakistan is mistaken. The SSHD's decision letter sets out detailed reasoning (pages 4-5) for his position that MI and the children can live in Pakistan with ZK, without it being unduly harsh. I checked with Ms Faryl that she was content to proceed on this basis and invited her to take instructions if she considered it necessary. She confirmed that she was happy to proceed. I provided both representatives with a copy of the four issues in dispute and they both confirmed that they entirely accepted the delineation of the issues as set out above.
18. If the answer to issues (1), (2) or (3) is positive that is the end of the matter, and the appeal must be allowed on Article 8 grounds. If all the answers are negative, then it will be necessary to go on to address (4).
19. ZK relied upon a helpful 280-page comprehensive bundle of evidence. This includes, inter alia: witness statements from himself, his wife and his extended family members; medical evidence concerning the children and MI; and, evidence relevant to the risk of reoffending from the probation service. Prior to the hearing I read the bundle in full.
20. I heard oral evidence from ZK and MI. They were both cross-examined by Mr McVeety. Mr McVeety relied upon a succinct but helpful position statement. He invited me to find that each of the four issues demand that a high threshold is met and the evidence comes nowhere close to meeting the requisite tests. Ms Faryl relied upon a comprehensive and helpful skeleton argument, and submitted that the evidence was sufficient to meet each of the requisite tests.
21. At the end of the submissions I reserved my decision, which I now provide with reasons
22. In reaching my findings, I have applied the preserved factual findings made by the FTT, but updated these findings in the light of the further evidence available to me.
23. I note that the FTT regarded MI as an entirely truthful witness. I am satisfied that she provided mostly truthful evidence before me. She gave straightforward answers to each question but tended to exaggerate the nature and extent of A's need for medical attention. I deal with this in more detail below. ZK provided mostly truthful evidence but sought to exaggerate the complete lack of any family members in Pakistan. MI accepted that she has an aunt in Lahore that she visited when they went to Pakistan on honeymoon in 2013. I accept that MI is not close to this aunt but the couple cannot be said to be completely devoid of family contacts in Pakistan. That is not surprising given that the couple and both sets of their parents are Pakistan citizens, and MI only left Pakistan in 2009.
24. ZK may not be able to read and write in Urdu but he can speak Urdu. He speaks English fluently. He obtained seven GCSEs and a BTEC. I am confident that within a short period of time he would be able to communicate so as to settle into Pakistani life. He has grown up immersed in a busy household who share a common dual Pakistani heritage and will be able to navigate the different way of life in Pakistan.
25. I have no doubt that ZK and MI have a very close and committed relationship and form part of a close and supportive family unit with their two children, as well as the extended family members, with whom they reside in Manchester. ZK arrived in the UK when he was seven and has plainly lived in the UK for a lengthy period. MI arrived when she was a teenager, having been born and brought up in Pakistan. The couple began a family when they were both young. It is clear from the evidence that I have heard that the centre of ZK's life is his family, and vice versa. It follows that the centre of his life is likely to be where his family is, particularly as his wife is currently pregnant.
26. ZK's time in prison did not substantially shift the family dynamics. They remained in close contact with daily telephone calls and weekly visits. I have also seen extensive correspondence between the couple during ZK's imprisonment. I accept the evidence that although MI had extended family members to assist her, she and the children were profoundly affected by ZK's six months imprisonment. That included MI seeking psychiatric help and counselling. A psychiatric report dated 13 August 2018, prepared by Dr Hussain refers to this as a " period of major emotional crisis" in MI's life and she suffered from " free and floating anxiety state". Her symptoms fulfilled the criteria of mixed anxiety and depressive disorder, such that antidepressants and cognitive behavioural therapy (CBT) were recommended. In addition, A was adversely affected by her father's absence, which resulted in a delayed start time to her schooling by a year and missed hospital appointments for her eye problems. Her father now takes her to school and collects her from school. I accept that these difficulties largely subsided when MK returned to the family home, although difficulties remain given the inevitable uncertainty caused by these proceedings. This is therefore a family that has demonstrated resilience. Although it has been difficult, they have with the passage of time been able to cope with ZK's imprisonment. I note from the psychiatric report that the couple have had to cope with difficult times in the past and have demonstrated an ability to move on successfully. In 2014/5 there was a short-term breakdown in their relationship but this was resolved with support from social services. Since then social services have not been involved and their relationship has strengthened.
27. I do not accept that MI has any current serious medical condition. The letter from the GP dated 1 February 2019 refers to MI having attended self-help counselling. MI confirmed that the reference to this continuing is a mistake because this stopped in October 2018. The GP refers to MI being stressed and taking medication to assist with sleeping. The difficulties described by the psychiatrist in August 2019 no longer apply now. In the directions I gave following the error of law hearing, I suggested an updated psychiatric report would be helpful if considered necessary. It has not been necessary to do so because as the GP's letter explains the ongoing concerns are limited. Counselling has come to an end. MI is no longer on anti-depressants as she is pregnant. CBT did not commence. MI simply remains on sleeping tablets.
28. I do not accept that either of the children have any serious medical condition. I note that A has been attending hospital appointments for an eye condition and they both have ear problems. MI gave evidence that A may have to undergo surgery next year but there was no medical evidence available to support this. Rather, the medical evidence concerning the children mainly consists of appointment letters. A letter from the eye hospital dated 23 January 2019 described improvements including " right visual acuity has improved significantly since last visit". ZI explained that A no longer had to wear eye patch but did have to place drops in her eyes.
29. I now go on to address each of the four issues in dispute, and where appropriate consider the evidence in more detail.
Issue 1: Private life / s.117C(4)(c)
30. The consideration of 399A and section 117C(4) involves three elements. ZK came to the UK when he was seven. He is now 24. He was granted ILR in 2008 but was lawfully present with his mother whilst that application was pending. In the circumstances he is entitled to be treated as having been lawfully present in the UK for most of his life. ZK is clearly socially and culturally integrated into the UK given his education, employment and length of residence here. I now turn to the third and only limb to Exception 1 that is in dispute - would there be very significant obstacles to ZK's integration to Pakistan?
31. The authorities require a broad evaluative judgement that applies the plain meaning of the words in s.117C(4) (as replicated in 276ADE(1) and 399A of the Immigration Rules) - see SSHD v Kamara  EWCA Civ 813 and Parveen v SSHD  EWCA Civ 932). The phrase "very significant" connotes an elevated threshold which will not be met by mere inconvenience or upheaval. The idea of "integration" calls for a broad evaluative judgment to determine whether, inter alia, MK will be able to build up within a reasonable time human relationships to give substance to his private and family life.
32. MK has argued that it shall be extremely difficult to adjust to life in Pakistan as he will return as a stranger to the country given the very young age he left. I bear in mind the principles set out in Maslov v Austria  INLR 47.
33. I accept the SSHD's submission that MK shall be well placed to obtain employment. He has gained school and college qualifications, and has employment experience. He may not be able to read and write in Urdu but his excellent English language skills will compensate for this. Undoubtedly the experience of being imprisoned was difficult for him but MK has demonstrated resilience in coping with enforced absence from his family. Those traits and that experience can be applied to his advantage in Pakistan, a country that he is not a complete stranger to. He may have only visited once since he left as a child but he is very familiar with Pakistani culture having grown up in a Pakistani-heritage large household in Manchester. His wife and her family were born and brought up in Pakistan, albeit they are also British citizens. I am satisfied that within a reasonable period of time, ZK will be able to enter employment in Pakistan and develop a private life there.
34. I acknowledge that ZK is a part of a very committed family unit. For reasons I set out below it would not be unduly harsh for his wife and children to return to Pakistan with him. To the extent that the considerations in Exception 2 inform my approach to Exception 1, it is relevant to take into account that any obstacles cannot properly be described as "very significant" solely because ZK will be leaving his wife and children behind. They are British citizens and are entitled to remain in the UK. It is entirely a matter of choice for them whether to go or stay.
35. There is no reason why, initially at least, ZK should not be supported by his brother and sister in the UK, whilst he settles in. They are both in full-time employment. MI also has family members in Lahore. I accept she is not close to them and I acknowledge that MI's ties are not necessary ZK's ties, but there is no reason why they would not be prepared to help during the settling in period.
36. To summarise, ZK is of Pakistani origin, he speaks Urdu and his English will serve him well, he is young and in good health and had been working in the UK, and that there is no reason why he could not work in Pakistan and in time establish a private life. It would be open to his wife and children to join him there, should they wish to do so. Having undertaken a broad evaluative judgment, I am not satisfied that the obstacles to ZK's integration in Pakistan can properly be described as "very significant".
Issue 2: unduly harsh for children / MI to go to Pakistan?
37. The children's best interests are to be treated as a primary consideration. I also attach significance to their British citizenship. Their best interests favour remaining in the UK with both parents. That is the status quo. However they are both very young and with the love and support of their parents will be able to cope with life in Pakistan. Both parents were born and brought up within the Pakistani community, and will be well-placed to assist the children in making the necessary adjustments.
38. I accept that A has been attending regular hospital appointments for her eye condition, a "convergent squint", but I have been taken to no country background evidence to support the contention that the medical attention she needs will be unavailable or unaffordable in Pakistan. I also accept that both children have problems with their ears and attend hospital appointments for this. No effort has been made to evidence with any degree of precision the likely medical treatment the children require and its availability in Pakistan, far less how much it would cost there. I am satisfied that the children will be able to access the medical treatment they require in Pakistan. Any expenses can be met with the assistance of the extended family members and their parents' employment.
39. Although A's anxiety may have delayed her school start, this was attributed to the absence of ZK. Similarly, MI's depression and anxiety as set out in the psychiatric report was linked to ZK's absence from their lives. MI is still in the early stages of her pregnancy and there is no reason why she would be unable to access medical treatment in Pakistan. The family will be able to live together in Pakistan. ZK and MI could be assisted with short-term support from UK-based family members. Most are in employment with full-time jobs. There is therefore an absence of any significant medical or other evidence to support the claim that it would be unduly harsh for MI and the children to live in Pakistan.
40. In case I am wrong about this, I have gone on to consider issue (3).
Issue 3 - unduly harsh for children and MK to remain in the UK without ZK?
41. Dr Hussain concluded that without her husband's support or antidepressants there may be the risk of worsening of symptoms to the extent that MI would not be able to look after her children and may need continuous support of social services. This assessment was based on the circumstances that existed in August 2018. I do not accept it applies at present. MI coped when her husband was imprisoned without the need for the intervention of social services. She undertook counselling but was able to cope. MI has demonstrated a degree of resilience in coping without her husband. It was undoubtedly difficult for her but it was not unduly so. I note that MI works part-time. It is claimed that she would not be able to cope with both employment and childcare without her husband. I do not accept this. Many single parents are able to do both. She lives with the extended family and can turn to them for assistance, even though some work full-time.
42. Ms Faryl submitted that the family would be devastated and in severe shock by the loss of ZK and this was sufficient to meet the unduly harsh test. I do not accept this. The threshold is high. Devastation and shock are insufficient to meet the test, if there is evidence, as here, that ZI and the children will be able to cope with time and with the support of their extended family members. I entirely accept that the children will be devastated as they are particularly close to their father. However, they will have the love and support of their mother and the extended family members. I have no doubt that it will be initially difficult for A and B, but with the love and support around them, they will be able to cope. A refused to attend medical appointments and to go to school when her father was in prison. She was only just 4 and did not understand why her father was absent. She will shortly be 5 and if MI chooses to remain in the UK with the children, she will need to explain what has happened and why. Although this will be difficult and shocking for A, it does not meet the high threshold required by the unduly harsh test. B is younger and is more likely to be able to cope with the changed circumstances. With time and support, MI and the children will be able to make sense of and cope with the sudden loss of ZK. I do not accept that his deportation would involve a degree of harshness going beyond what would necessarily be involved for any child faced with deportation of a parent.
43. The impact of ZK's deportation will be harsh upon ZI and the children and they will suffer emotionally. This will clearly be contrary to the children's best interests but with time and support it cannot be properly said that the effect on them or their mother will be unduly harsh.
Issue 4 - very compelling circumstances
44. This is a case in which there are significant factors in ZK's favour. These must however be viewed against all the circumstances of the case. I have approached issue (4) by undertaking a "balance sheet" approach, but one that considers both sides of the balance sheet, when addressing each relevant issue. For the avoidance of doubt I have taken into account all the matters set out above before reaching my conclusion.
45. Firstly, ZK's offending is at the lowest end of the scale for medium offenders (12 months) and at the lower end of the seriousness spectrum - see SSHD v Barry  EWCA Civ 790. Nevertheless the index offence remains a serious one that included aggravating features: dishonesty and fraud against a vulnerable adult that ZK cared for.
46. Second, ZK's risk of reoffending has been consistently assessed as low by the probation service. He was imprisoned in a Category C prison, consistent with his low risk of reoffending. His behaviour has been good since his arrest, including during his imprisonment and after his release. Rehabilitation is important, but the Court of Appeal has consistently emphasised that the cases in which it can make a significant contribution to establishing the compelling reasons sufficient to outweigh the public interest in deportation are likely to be rare - see LG (Colombia) v SSHD  EWCA Civ 1225. ZK's immediate and extended family are protective factors to assist in the maintenance of the low risk of offending, albeit they were both present when ZK committed the index offence. ZK has demonstrated resilience in rebuilding his life. He is clearly committed to and has a close relationship with his family. These are indicators that demonstrate ZK's clear commitment to living a good and law-abiding life in the UK. However, he was only released from prison relatively recently in November 2018. Although ZK was working as a sales representative at the time of his arrest and was provided with a supporting letter from his employer, he has not been able to obtain employment since his release from prison.
47. Third, ZK came to the UK during his childhood. This is a factor of some significance in the light of the principles set out in Maslov (supra). ZK regards himself to be British and may face difficulties in adapting to life in Pakistan. However he has been brought up immersed in a dual Pakistani and British culture, having lived his entire life with family members born in Pakistan (save for his children and nephew). Any culture shock in returning to Pakistan is likely to be no more than moderate. If MI and the children return to Pakistan with him, the culture shock is likely to be even less. I have already set out above that this will be difficult for them but not unduly harsh. MI has a greater knowledge of and closer links to Pakistan having left more recently in 2009. She would be able to assist ZK to navigate and adapt to a different way of life.
48. Fourth, ZK, MI and the children are particularly close to the wider family, with whom they live. They will undoubtedly miss living in a busy household. In addition, ZK is particularly close to his nephew. ZK's brother described the nephew as treating ZK as a father, as his own father is separated from their sister (the nephew's mother). MI explained that he calls ZK "daddy" and ZK's brother "uncle". This is to be expected as this is what the other two children in the extended family household do. I accept that it would be in the nephew's interests for the status quo to remain but with time and support, he will be able to adapt to the changed circumstances. He is still a young child and will be able to turn to his other uncle for paternal guidance.
49. Fifth, ZK married his wife at a time when he had ILR and she had a reasonable expectation that she would continue to live in the UK with her husband. On the other hand, I have found that whilst it may be difficult for MI to return to Pakistan with her children, and it may be contrary to their best interests to do so but they will adapt, and it will not be unduly harsh.
50. Finally, ZK speaks English very well and between his partner and his own earning potential the family is likely to be financially independent. These matters are relevant to section 117B of the 2002 Act and therefore militate in ZK's favour.
51. Where a foreign offender receives a custodial sentence of at least 12 months I am obliged to give appropriate weight to Parliament's and the Secretary of State's assessments of the strength of the general public interest in deportation and that, where paragraphs 399 and 399A of the Rules do not apply, in general " only a claim which is very strong indeed ... will succeed" - see  of Hashem Ali. In the end and notwithstanding the factors in ZK's favour, the present case is not, in my view, of that kind. ZK appears to pose a low risk but his last conviction was not that long ago. In any event the significance of rehabilitation is limited by the fact that the risk of reoffending is only one facet of the public interest. I have considered ZK's arrival in the UK as a child. It is noteworthy that I have found an absence of "very significant obstacles" to his integration into Pakistan. Whilst his wife and children will find ZK's deportation difficult and it will be contrary to the children's best interests, it's effect does not meet the threshold required to be unduly harsh. They, like the extended family members, will cope with time and support.
53. I remake the decision by dismissing ZK's appeal
54. I decline to make a fee award as I set aside the FTT decision and I have dismissed ZK's appeal.
Signed: UTJ Plimmer
Ms M. Plimmer
Judge of the Upper Tribunal
2 April 2019