(Immigration and Asylum Chamber) Appeal Number: PA/00435/2019
THE IMMIGRATION ACTS
Heard at The Royal Courts of Justice
Decision & Reasons Promulgated
On 2 September 2019
On 12 September 2019
UPPER TRIBUNAL JUDGE blum
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(anonymity direction MADE)
For the Appellant: Mr T Lindsey, Senior Home Office Presenting Officer
For the Respondent: Mr L Youssefian, Counsel, instructed by Polpitiya & Co Solicitors
DECISION AND REASONS
1. The Secretary of State for the Home Department (hereafter appellant) appeals against the decision of Judge of the First-tier Tribunal P J M Hollingworth (the judge) who, in a decision promulgated on 4 July 2019, allowed the human rights appeal of HP (hereafter respondent) against the appellant's decision of 17 December 2018 to refuse his protection and human rights claims following the making of a deportation order under s.32 of the UK Borders Act 2007 on 15 December 2018.
2. The respondent is a national of Iraq, born in 1992. He entered the UK in 2008 and subsequently claimed asylum based on a fear that he would be captured and held to ransom or conscripted by insurgent groups and because of the lack of general security in Iraq. The asylum claim was refused and an appeal dismissed by First-tier Tribunal Judge Miles in a decision promulgated on 8 January 2009. Judge Miles found the respondent had not given a credible account of events in Iraq but did accept his claimed age. The respondent was granted Discretionary Leave until 21 September 2009. On 28 January 2016 the respondent was granted Indefinite Leave to Remain (ILR) outside the immigration rules.
3. The respondent claimed to have commenced a relationship with KP, a British citizen, and that they began to cohabit around 2011. The respondent has a daughter, AP, born to KP in December 2012.
4. From 9 August 2010 to 23 March 2018 the respondent received 15 convictions in respect of 23 offences. On 23 March 2018 the respondent was convicted on a guilty plea of one count of supplying a Class B controlled drug and 2 counts of supplying a Class A controlled drug and sentenced to 2 years and 9 months imprisonment.
5. Having been notified that the appellant was considering making a deportation order the respondent made representations as to why he should not be deported. The appellant found that the respondent posed a danger to the community and issued a certificate under s.72 of the Nationality, Immigration and Asylum Act 2002. The appellant considered the respondents claim that, as a Sunni Muslim from Kirkuk, he feared that his life would be in danger from ISIS and Shia militia. The respondent claimed to have no friends or relatives in Iraq and no support network. The appellant rejected the respondents claim to hail from Kirkuk as a previously provided identity document had been confirmed by the National Documentation Fraud Unit as being counterfeit. The appellant noted that the respondent's account had been rejected by Judge Miles in 2009 and, in reliance on extracts of background evidence, considered that Sunni Muslims were not a persecuted religious group in Iraq and that internal relocation was available. The appellant rejected the respondent's claim to have no family in Iraq. The appellant was satisfied the respondent would be able to return to his home area, whether this was in the Iraqi government controlled part of Iraq or in the Kurdish Region of Iraq, by being met by family members or friends at the airport of return. The appellant rejected the respondent's claim to be entitled to refugee protection or Humanitarian Protection.
6. The appellant also rejected the respondent's claim to have a genuine and subsisting parental relationship with his child and with KP. Although the appellant acknowledged the existence of records showing that AP had visited the respondent in prison, there was no other evidence of any significant and meaningful involvement by him in AP's life. The appellant found that the respondent had been separated from KP since 2015. Whilst the appellant accepted that it would be unduly harsh to expect both AP and KP to relocate to Iraq, it was not unduly harsh to separate the respondent from AP and KP.
7. The respondent exercised his right of appeal under s.82 of the Nationality, Immigration and Asylum Act 2002.
The decision of the First-tier Tribunal
8. The judge set out the oral evidence given by the respondent ( to  and  to ) and KP ( to  and ) and the submissions made by the representatives ( to ). At  the judge found that the respondent failed to rebut the presumption under s.72 of the Nationality, Immigration and Asylum Act 2002 that he constituted a danger to the community. There has been no challenge to this finding.
9. At  the judge approached the determination of Judge Miles as his starting point, including Judge Mile's acceptance that the respondent came from Kirkuk. The judge referred to photographs he saw during the hearing that were contained in KP's phone. There were three photographs, one of which showed the respondent on the right of a group of people, the reference being "Sulaymaniyah trip in 2016". This photograph could not be found after the judge retired in order for it to be forwarded to the Tribunal, but two other photographs were provided, each showing the respondent and KP with other people, and they were marked "Sulaymaniyah 12 Sept 2016". The judge noted that the respondent had travelled to Iran using his Travel Document containing an Iranian visa valid from 5 September 2016 to 4 December 2016. Based on this evidence the judge found that the respondent had travelled from Iran to Sulaymaniyah and that he was therefore able to enter the Kurdish Region of Iraq and had no fear of return. At  the judge found that the respondent did have family members or friends in Iraq who would be able to verify his identity and sponsor him and assist him in obtaining a CSID. The judge concluded that it would be feasible for the respondent to return to either Baghdad or Sulaymaniyah or both and that if difficulty arose in obtaining CSID there was the (National Status) Court in Baghdad that could deal with the issues. the judge concluded that the presence of family or friends in Iraq was sufficient to obviate the problem of establishing his identity in relation to official checkpoints.
10. At  the judge referred to inconsistent evidence given by the respondent and KP in respect of whether there had been a break in their relationship (in his oral evidence the respondent said there had been a break, whereas KP claimed there had never been a break). The judge concluded that there was no genuine and subsisting relationship between the respondent and KP.
11. The judge then considered the respondent's relationship with AP. The judge referred to documentary evidence that AP had visited the respondent when he was detained. The judge found that the respondent had a genuine and subsisting parental relationship with AP prior to losing his liberty and that the relationship had been maintained as a result of AP's visits. Having noted the appellant's view, expressed in the refusal letter, that a genuine and subsisting relationship meant more than a biological relationship and more than presence in a child's life and that it required a significant and meaningful positive involvement, the judge stated,
"I have been provided with medical evidence in relation to the [respondent's] partner. I refer to this below. In the light of this evidence and the factors to which I have referred I find that a genuine and subsisting parental relationship does exist between the [respondent] and his daughter given the significance of his role as a father of the role played by the [respondent's] partner in relation to the life of their daughter."
12. The judge continued,
"The medical evidence to which I have referred has been provided by Dr Sethi and is dated 23 June 2016. The [respondent's] partner is registered at the practice. The [respondent's] partner suffers from adjustment disorder complicated by bipolar depression. She has been reviewed by the mental health team and was on medication. She had a significant history of relapses that can distract her from completing already booked tasks. I find in the light of the content of this letter from Dr Sethi to which I refer that the effect of the [respondent's] removal would be unduly harsh given the clear impact of her conditions and the increased significance thereby of the role of the [respondent] in providing care and support for his daughter. I find that the importance of the [respondent] in relation to the contribution which he can make to his daughter's life and upbringing has increased to a degree which equates on the footing of his absence to the impact of undue harshness on his daughter."
13. The judge concluded that the public interest did not require the respondent's deportation as the impact on his daughter would be unduly harsh. The judge then considered the appeal under Article 8 as a freestanding right applying the authorities of Razgar  UKHL 27 and Huang  UKHL 11 and making reference to "Section 117" (the judge is likely to have meant sections 117A to 117D of the Nationality, Immigration and Asylum Act 2002 as section 117 is of no relevance and has, in any event, been repealed). Having found that the immigration rules were met the judge concluded that the public interest did not require the respondent's removal. The judge subsequently allowed the appeal rights grounds.
The challenge to the judge's decision
14. The grounds contend that the judge failed to give adequate reasons for finding that the respondent had a genuine and subsisting parental relationship. He failed to take into account his other adverse credibility findings, including his finding that there was no genuine and subsisting relationship between the respondent and KP. Nor was there any third-party documentation detailing the respondent's parental role. Nor had the judge considered KP's evidence that her parents supported her and that when KP worked night shifts it was her mother who looked after AP.
15. It was argued in the alternative that the judge failed to give clear reasons as to how the high threshold of "unduly harsh consequences" were met, with reference to KO (Nigeria)  UKSC 53 and RA (s.117C: "unduly harsh"; offence: seriousness) Iraq  UKUT 123 (IAC). The judge failed to identify what the unduly harsh consequences would be, and his reasoning at  was insufficient to support a finding of unduly harsh consequences. The report from Dr Sethi did not show that the respondent's absence would lead to a collapse in the physical, emotional or psychological welfare of AP, and the report was now 3 years old. In finding that the respondent played a role of increased significance the judge failed to consider KP's evidence that it was her mother who looked after the child when she worked night shifts, or that KP had sole responsibility for the child during the respondent's incarceration. Nor had any consideration being given to the possibility of KP accessing assistance from other agencies if this was required.
16. Designated First-tier Tribunal Judge Macdonald found that the grounds disclosed arguable errors of law and granted permission.
The error of law hearing
17. At the outset of the hearing Mr Youssefian applied for an adjournment in order to make an application to appeal the judge's finding in respect of the Article 3 protection claim. He accepted that any such application would be out of time but submitted that the appellant would not be disadvantaged and that it was clear that the judge erred in concluding that the respondent would be able to obtain a CSID given that he came from Kirkuk.
18. I refused the application to adjourn the hearing. It was open to the respondent to have challenged the judge's findings in respect of his protection claim but he failed to do so. As acknowledged by Mr Youssefian, there was no explanation for this failure. Any cross appeal would now be significantly out of time. In any event, at  the judge specifically considered the arguments advanced on behalf of the respondent that his lack of a CSID card meant that he would be at risk of harm on return to Iraq and internal relocation to either Baghdad or the Kurdish Region of Iraq was not available. The judge however found that the respondent had travelled to Sulaymaniyah in September 2016, that he did have friends or family in Iraq and that he would, with the assistance of his friends and family, be able to obtain a valid CSID through the Baghdad Court. This was a finding rationally open to the judge on the basis of the evidence before him and for the reasons given. Having regard to the approach to delays established in SSHD v SS (Congo) & Ors  EWCA Civ 387 and Hysaj  EWCA Civ 1633 I did not consider there to be any merit were a cross appeal to be lodged out of time and it was not therefore in the interests of justice, having regard to the overriding interests in rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008, to adjourn the hearing.
19. Mr Lindsey expanded upon the written grounds of appeal contending that the judge failed to factor in his adverse credibility findings when assessing whether a parental relationship existed. There was no independent evidence of the respondent's relationship with AP other than the prison visit records. Both the respondent and KP claimed such a relationship existed they had both been found to be incredible witnesses in relation to other aspects of the appeal. The letter from Dr Sethi did not describe the respondent's relationship with his daughter and the judge failed to give any reasons how this letter supported his finding that a parental relationship existed. Nor was there any specific evidence that KP was unable to care for AP if the respondent was deported. This was relevant to the finding that the impact on KP would be unduly harsh.
20. Mr Youssefian submitted that the appellant's grounds amounted to a disagreement with factual findings the judge was entitled to make. It would be hugely surprising if the judge had failed to consider his negative credibility findings when assessing whether the respondent had a parental relationship with AP. The judge's reference to the various visits by AP to the respondent when he was incarcerated was sufficient to support the judge's finding. My attention was brought to the authority of SSHD v AB (Jamaica) and AO (Nigeria)  EWCA Civ 661 ( AB (Jamaica)) which considered the issue of parental responsibility.
21. Mr Youssefian accepted that there was no independent evidence before the judge of the impact of his deportation on AP, but the judge was entitled to attach weight to the evidence from the respondent and KP concerning KP's ability to look after their child if there was a relapse.
22. I reserved my decision.
23. The judge concluded that the respondent had a genuine and subsisting parental relationship with his daughter. The judge supported this finding by reference to the Visit History for a Prisoner records in the bundle prepared for the First-tier Tribunal hearing and the letter from Dr Sethi. The records do indeed show visits by the respondent's daughter. Other than the assertions by the respondent and KP in their written and oral evidence that the respondent had a parental relationship with AP, there was no other independent evidence of such a relationship. The letter from Dr Sethi, which I will consider in more detail later, does not make any mention of the respondent's relationship with AP. The judge acknowledged a submission made in the skeleton argument on behalf of the respondent that he had been residing with KP when he was arrested. The judge does not however make any specific finding in respect of this submission. Although the judge found that, prior to losing his liberty, the respondent had a genuine and subsisting parental relationship with his daughter, this finding is unreasoned.
24. In AB (Jamaica) Lord Justice Singh agreed with what was said by Upper Tribunal Judge Plimmer in the case of SR (Subsisting Parental Relationship - s117B(6)) Pakistan  UKUT 334 (IAC) at paragraph 39,
"There are likely to be many cases in which both parents play an important role in their child's life and therefore both have subsisting parental relationships with the child, even though the child resides with one parent and not the other. There are also cases where the nature and extent of contact and any break in contact is such that although there is contact, a subsisting parental relationship cannot be said to have been formed. Each case turns on its own facts."
25. Whilst the judge did have before him evidence of contact between the respondent and his daughter at a time when the respondent was incarcerated, there was limited independent evidence of the nature and extent of his relationship with her. The judge had already found that the respondent and KP did not have a genuine and subsisting relationship and this finding has not been challenged. The mere fact of some direct contact could not, in my judgement, support the judge's finding that there existed a parental relationship.
26. The judge found that the respondent's deportation would have an unduly harsh impact on AP. 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)) .
27. In concluding that the impact of the respondent's deportation on his child would be unduly harsh the judge attached significant weight to a letter from Dr dated 23 June 2016. The was a brief letter indeed. It read,
"This is to confirm that [KP] is registered at our practice.
She suffers from Adjustment disorder complicated by Bipolar depression.
She has been reviewed by mental health team and on medication.
She has significant history of relapses that can distract her from completing already booked tasks.
If you have any query please do not hesitate to contact me."
28. The letter makes no mention of AP. The letter does not describe the degree and extent of KP's mental health diagnoses. The letter does not describe the impact that KP's mental health condition has or can have on AP, or how a relapse, resulting in KP being distracted from completing her "already booked tasks", would affect her ability to care for her daughter. The letter was written almost 3 years before the First-tier Tribunal hearing. Other than the assertions of the respondent and KP as to her ability to care for AP if the respondent was deported (both of whom were found to be incredible in relation to other aspects of the appeal), there was no other independent evidence of the impact of deportation on either KP or AP. Nor does the judge appear to have considered either the possibility that KP's mother could assist in looking after AP (as she did when KP worked night shifts) or any assistance that may be available from social services. For these reasons I find that the judge failed to give adequate reasons for his conclusion that the impact of the respondent's deportation on AP would be unduly harsh.
29. The judge purported to then apply Article 8 as a freestanding right. In concluding that the respondent's deportation would be disproportionate the judge relied on the respondent meeting the immigration rules. I have however found that the judge's approach under immigration rules relating to undue harshness contain the making of an ever on of law. In any event, to the extent that the judge considered that it was appropriate to look beyond the "very compelling circumstances" test as outlined in s.117C(6), he erred in law (see NE-A (Nigeria) v Secretary of State for the Home Department  EWCA Civ 239, at  and ).
30. In the absence of legally adequate reasons I am satisfied that the decision, so far as it relates to Article 8 considerations, must be set aside. Having heard submissions from both parties I am satisfied it is appropriate to remit the case back to the First-tier Tribunal to determine a fresh the issue of the respondent's relationship with his daughter and the impact of the deportation decision on her. This is because the respondent has now been released from detention and Mr Youssefian informs me that there is likely to be further evidence going to the issues identified. The judge's decision in respect of the protection (Article 3) element of the appeal is maintained.
Notice of Decision
The First-tier Tribunal's decision contains an error on a point of law requiring it to be set aside.
The case is remitted back to the First-tier Tribunal, before a judge other than Judge of the First-tier Tribunal P J M Hollingworth, to determine the Article 8 aspect of the appeal relating to the relationship between the respondent and his daughter.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant 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 appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
D.Blum 5 September 2019
Upper Tribunal Judge Blum