United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

"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."

15.   In relation to the question whether the impact of deportation is "unduly harsh" as the Court of Appeal pointed out in Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213 one is looking for "a degree of harshness going beyond what would necessarily be involved for any partner or child of a foreign criminal facing deportation" ([38]). The Court of Appeal in that case went on to apply the test in the following way:

"[39] Formulating the issue in that way, there is in my view only one answer to the question. I recognise of course the human realities of the situation, and I do not doubt that SAT and the three children will suffer great distress if PG  is deported. Nor do I doubt that their lives will in a number of ways be made more difficult than they are at present. But 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 children in this country. I accept Mr Lewis's submission that if  PG  is deported, the effect on SAT and/or their three children will not go beyond the degree of harshness which is necessarily involved for the partner or child of a foreign criminal who is deported. That is so, notwithstanding that the passage of time has provided an opportunity for the family ties between PG , SAT and their three children to become stronger than they were at an earlier stage. Although no detail was provided to this court of the circumstances of what I have referred to as the knife incident, there seems no reason to doubt that it was both a comfort and an advantage for SAT and the children, in particular R, that PG was available to intervene when his son was a victim of crime. I agree, however, with Mr Lewis's submission that the knife incident, serious though it may have been, cannot of itself elevate this case above the norm. Many parents of teenage children are confronted with difficulties and upsetting events of one sort or another, and have to face one or more of their children going through "a difficult period" for one reason or another, and the fact that a parent who is a foreign criminal will no longer be in a position to assist in such circumstances cannot of itself mean that the effects of his deportation are unduly harsh for his partner and/or children. Nor can the difficulties which SAT will inevitably face, increased as they are by her laudable ongoing efforts to further her education and so to improve her earning capacity, elevate the case above the commonplace so far as the effects of PG's d eportation on her are concerned. In this regard, I think it significant that Judge Griffith at paragraph 67 of her judgment referred to the "emotional and behavioural fallout" with which SAT would have to deal: a phrase which, to my mind, accurately summarises the effect on SAT of PG's deportation, but at the same time reflects its commonplace nature.

As also emerges from this case and paragraph 399 of the Rules, the Tribunal must consider whether it would be unduly harsh for the Appellant's partner and children to go to Poland to be with him and whether it would be unduly harsh for them to remain in the UK whilst he remains in Poland.

16.   When considering whether there are "very compelling circumstances over and above" the two exceptions in Section 117C, the Court of Appeal in NA (Pakistan) approached the test for "medium offenders" such as the Appellant in the following way

"[32] Similarly, in the case of a medium offender, if all he could advance in support of his Article 8 claim was a "near miss" case in which he fell short of bringing himself within either Exception 1 or Exception 2, it would not be possible to say that he had shown that there were "very compelling circumstances, over and above those described in Exceptions 1 and 2". He would need to have a far stronger case than that by reference to the interests protected by Article 8 to bring himself within that fall back protection. But again, in principle there may be cases in which such an offender can say that features of his case of a kind described in Exceptions 1 and 2 have such great force for Article 8 purposes that they do constitute such very compelling circumstances, whether taken by themselves or in conjunction with other factors relevant to Article 8 but not falling within the factors described in Exceptions 1 and 2. The decision maker, be it the Secretary of State or a tribunal, must look at all the matters relied upon collectively, in order to determine whether they are sufficiently compelling to outweigh the high public interest in deportation.

[33] Although there is no 'exceptionality' requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the  natural love between parents and children, will not be sufficient.

17.   Finally, Mr Jarvis also drew my attention to the case of IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932 where, at [52] of its judgment, the Court of Appeal made plain that "the word 'deportation' is being used to convey not just the act of removing someone from the jurisdiction but also the maintaining of the banishment for a given period of time: if this were not so, section 117C(1) would achieve very little".

THE EVIDENCE

18.   Having set out the legal framework against which the evidence must be assessed, I turn now to what the evidence shows in this case. [SR] gave oral evidence before me. I do not set that out separately but incorporate that evidence where relevant into my assessment of the remainder of the documentary evidence.

19.   I begin by dealing with [SR]'s own situation. Her own evidence is to be found in a letter dated 9 December 2017, a statement and letter dated 28 April 2018 and a statement dated 27 February 2019 as well as the oral evidence which she gave at the hearing.

20.   [SR] is a British citizen. She was born in 1992 and is now aged twenty-seven years. She has known the Appellant from a very young age. She says in her 2018 statement that she had known him for ten years. They had been a couple for that period save for a separation when she was aged sixteen. It was at that time that she fell pregnant with [LR]. As such, [LR] is not the Appellant's biological child. However, [LR] has no contact with her biological father and is to all intents and purposes the Appellant's daughter.

21.   [SR] suffers from various medical conditions which are best explained by the report dated 26 February 2019 from Dr D S Rattan, MRCS, LRCP as follows:

"[SR] has established diagnosis of the following mental health conditions and was last seen by Consultant Psychiatrist 23 ^rd May 2016. Since then she has been reviewed by her GP.

1.       Emetophobia

2.       Agoraphobia

3.       Obsessional Compulsive Disorder

4.       Depression

5.       Severe Anxiety disorder

Her condition was most severe during 2011-2013 and she had significant postnatal problems. During this time she was unable to leave the house due to her agoraphobia.

During her pregnancy when she was given formal 'homecare' to meet her needs, her partner cared for her constantly. [SR] has been on antidepressants only since 2016, which have helped her cope better.

However, without her support network (her parents, partner and close friends) she has in the UK she would not be able to manage due to her severe multiple psychiatric conditions. Without her support network it is very likely she would revert back to her severe state of phobia and depression.

[SR] relies on her support network to manage all her day to day activities including taking her children to hospital appointments and to the GP. Her daughter [LR] is under the Royal London Hospital for investigations of seizures and under a gastroenterologist.

She was recently reviewed at her GP and her medication (Citalopram 40mg) anti-depressant does was increased.

Unfortunately, [SR] has not received any CBT therapy yet for her condition.

[SR] is unable to use public transport due to her agoraphobia and anxiety disorder. She relies on her mother for most things.

In summary, [SR] has lifelong multiple severe debilitating psychological issues that has required psychiatric involvement. She remains under her GP for review and is currently on medication. Without her immediate support network it is very likely that she will relapse and her condition will worsen, which will have a detrimental effect on her children and her family."

22.   [SR] accepted in oral evidence that her conditions were a bit more stable with the medication which she currently takes (Citalopram). However, she is still heavily reliant on family support for her condition which she currently receives from her mother, [MA]. She accepted that her conditions are lifelong. She was diagnosed when she was a teenager, aged fifteen, sixteen or seventeen. The conditions had become easier to cope with as she got older and with medication but were still debilitating. She still struggles. She does not have anxiety as much but that is because she does not leave the house. She stays at home and watches TV. She tries her best for the sake of the children.

23.   Although [SR] accepted that she receives a lot of help from [MA], she said that she did not consider that she could depend on her mother all of the time. Her mother has a life as well. She also works full-time. She said that the Appellant knows how to relax and calm her. She feels anxious because she does not know what the future is. She is very nervous. In her 2018 statement, [SR] says this about the support she receives from the Appellant:

" 6. [AW] has supported me in ways no one else could and has helped me cope so much better. I have come such a long way because of him. I can honestly say that he has been more help to me and my progress than the mental health services ever were and I would not have come this far without his continued support.

7.       [AW] was able to help me in every way possible, from calming down my anxiety attacks, and helping me to get out of the house, by my knowing he is there with me every step of the way, to the more normal things like cleaning, cooking etc."

24.   [SR] suffered a difficult pregnancy with her younger child, [J]. She says this in her 2018 statement about that period:

"19. When I got pregnant with [J], it was one of the worst stages of my life. As much as we looked forward to meeting our little baby, the struggle I went through kept me in my bed once again like before and [AW] yet again cared for me, [LR], and my sister [N] so my mum could work.

20. [AW] was there every single day and nearly every night. He sat up with me in the night when I was terrified to sleep because of my fear of vomiting and being pregnant. Knowing I could vomit was scaring me due to my Emotophobia.

21. [AW] would hold my hand and calm me down night after night. He made sure we all had a healthy meal and all the care we needed.

22. When [J] was born I became very depressed and relapsed, my OCD had worsened. [AW] was there helping me through it and giving me the best advice he could.

23. [AW] is the one that encouraged me to take the medication, which was the best thing I could have done. Taking medication made me feel much better and I finally let go of many things that held me back in the past."

25.   [SR]'s eldest child, [LR] (the Appellant's stepdaughter), also has medical problems. [LR] was born in 2009 and is now aged ten years.

26.   There were concerns that [LR] suffered from epilepsy. This is the subject of a medical report dated 9 November 2017 written by Hia Thu, a locum consultant paediatrician at Whipps Cross University Hospital who outlines the concerns as follows:

"The main concern from her mother is that she is having a few prolonged staring episodes. The first time the family started realising was in July 2017. [LR] was in the car and she was sleeping. When she woke up her eyes were wide open and staring straight to the front. There was a bit of blue colouration on her lips. She was not responding to the surroundings and she kept staring for 10-15 minutes. There was no association with a jerky movement. At that time her body was floppy. Then she was taken to the Accident and Emergency Department. In Accident and Emergency, she still had a bit of a floppy episode. She had a whole set of blood tests, including an ECG, and the parents were told it was normal. One month after that episode she had another episode. At that time she was unwell with a viral illness. In the morning, she was sick and her father took her to the toilet. At that time, she felt sick but there was no history of vomiting and after the sickness she was staring and became unresponsive and floppy for 5-10 minutes. These are the two main incidents that the parents and grandmother thought were prolonged seizures.

Previously, the family were querying similar episodes, for example, two years ago, she had an episode of vomiting then she had a very similar staring episode for nearly 2 minutes. A year ago, she had one which lasted for 1 minute. Other than that she had a chronic history of constipation for which she is under the paediatrician at the Homerton University Hospital and she has been referred to the Royal London Gastroenterologist for further investigations."

A further report dated 15 August 2018 confirms that [LR] does not have epilepsy. The "staring episodes" are said to be "related to having a fever or viral illness". [LR] was therefore discharged from the epilepsy clinic. [SR] confirmed that [LR] had not suffered from any seizures since then.

27.   [LR] does suffer from what is described in the medical report as "a chronic history of constipation". That is controlled by medication although reports in the bundle suggest that [LR] has been resistant to taking her medication at all times. [SR] said in her oral evidence that [LR] can now take one of her medications in milkshake and is therefore more compliant but continues to struggle with one of the other medications. [LR] may need hospital admissions very so often if she does not take that medication. Otherwise, she requires regular hospital appointments to review her condition every few months.

28.   [SR] in her oral evidence attributed [LR]'s learning difficulties in part to the fact that she has missed school due to her medical problems and the need to attend hospital appointments on a regular basis. [LR] has now been diagnosed with dyslexia. She is said to be about two years behind her class. As a result, she now receives extra classes with a lot of one to one time. Although [SR] said that [LR] was not coping "massively well" she did say that [LR]'s reading skills were improving. I do not have a formal report from an educational psychologist or [LR]'s teachers, but Mr Jarvis did not dispute [SR]'s evidence. There is some limited evidence that [LR] has problems. For example, in the report dated 9 November 2017, it is said that she "is far behind her peer group" and was at that time "receiving extra support from school".

29.   [SR]'s evidence is that [LR] has been particularly badly affected by the Appellant's absence. She said that [LR] is a "daddy's girl" and that the Appellant is "everything to her". She says in her 2018 statement that [LR] has called the Appellant "Daddy" ever since she could talk and that "one of her first words was 'Dada'". [SR] says that [LR] has been "angry all the time" since she was separated from the Appellant. [SR] says in her 2018 statement that "[LR] is struggling in all aspects of her life without him and wants to be wherever her daddy is".

30.   [SR] also confirms that the Appellant attended almost all [LR]'s hospital appointments. He also took [LR] to and from school most days and attended school trips to ensure that [LR] could go on them.

31.   There is limited evidence about [J]. Contrary to what is suggested in the 2019 medical report concerning [SR]s medical conditions, [J] was not born in 2013 but in late 2015. He is now aged four years. He has attended pre-school since January 2018. He is not said to have any medical problems.

32.   [SR] said that [J] "gets on with it as he is very young. He is not the emotional type. He gets a bit sad and angry because he doesn't understand".

33.   [SR] said that she and the children speak to the Appellant on a daily basis, often more than once a day. [LR] has a mobile phone and can therefore contact the Appellant directly. [SR] said that whilst [LR] is sometimes happier once she has spoken to the Appellant, she is often unhappy, and she cries a lot for the Appellant when she is down. [LR] needs reassurance and extra help also at home and when she becomes stressed, that stress has an effect on [SR] herself.

34.   I have already alluded to the evidence that the Appellant has been in the UK unlawfully on two occasions. [SR] was unable to put a date on when the Appellant had returned to the UK following the first and second deportations. She said that "she was in a very bad place" when the Appellant was first deported in March 2013 and she had no idea when he had returned. She accepted however that he must have been back in the UK by the early part of 2015 as [J] is the Appellant's biological child and was born in late 2015.

35.   In relation to the Appellant's return following the deportation in April 2018, she thought that he had been in the UK for only a few weeks when he returned voluntarily to Poland in November 2019. She denied that the Appellant was living with his parents. He had been living with her and the children at her mother's house.

36.   [SR] was able to confirm that the Appellant had been arrested on that occasion. From her evidence, it appears that the arrest was in order to effect deportation. She said that the police officer who arrested him had done so whilst she and the children were in the car and that the children had been particularly upset by the experience. She suggested that the police officer had been unduly aggressive and even went so far as to suggest that it was he rather than the Appellant who had been responsible for an assault. I do not need to deal with that evidence since, as Ms Dogra accepted, in order to qualify for an unconditional caution, the Appellant would have to admit to the offence with which he was charged. It does appear however that the assault arose from a resistance to arrest and that the arrest was for the purposes of deportation rather than arising from any other criminal offence.

37.   [SR] said that as a result of this incident, [J] had become angry and had not spoken to her for a few days, apparently blaming his mother for allowing the police to take his father away.

38.   [SR] says that she cannot leave the UK for her own medical reasons as well as because of the children. In particular, she points out that [LR] is reliant on medical services and help with her education which she is now receiving in the UK.

39.   As to the position if she and the children remain in the UK and the Appellant remains in Poland, she says this in her 2018 statement:

"26. Living outside of the UK is not an option for me or my children but living without [AW] and leaving my children without their father, does not seem like an option to me either.

27. There is not a day that goes by that I have not had to deal with heartache. Dealing with [LR]'s tears that she misses and wants her daddy back and watching my son call for his daddy to come, not understanding that he cannot suddenly appear. Not knowing what is going through his mind when he is calling out, and probably wondering why daddy is not coming.

28. They miss him and want him back and so do I. It is heart breaking to see the effect this is having on my children from having their father in their lives to him suddenly not being here."

40.   [SR] said in her oral evidence that she and the children love the Appellant; "he is [their] world". She said that the Appellant gives the family the support they need and she should not be relying on her mother who could not be there for her and the children the whole time.

41.   That brings me on to the evidence of [SR]'s mother, [MA]. She was unable to attend the hearing as she was working. However, without objection from Mr Jarvis, I permitted the production of a document from her entitled "Written witness statement for hearing 9 ^th January 2020". In addition, she has written a letter dated 9 December 2017 and an earlier statement dated 28 April 2018 to which I have also had regard.

42.   [MA] confirms the support which the Appellant has given to [SR]. She confirms the deterioration of her daughter's condition when [J] was born. At that time, [SR] and [LR] moved back to live with [MA] but the Appellant was there every day and most nights. The Appellant cared for [SR], [LR] and [SR]'s sister, [N] while [MA] went to work. She also says that the Appellant has supported other of their family members at difficult times.

43.   In her 2018 statement, [MA] says the following about the Appellant's relationship with [SR] and the children:

"22. I swear to you that [AW] and my grandchildren have a very strong bond. My grandchildren deserve both their parents and [AW] has earned his right to call himself father to [LR]. To everyone who knows him, he is [LR]'s real father as he is the one that has been there for her. He has changed her nappies, fed her as a baby, attended her hospital appointments, and so much more. She is lost without him and this is having a very serious effect on her. She is sad every day and misses him so much. She does not deserve this and I pray you will allow him to return."

44.   In her recent statement, [MA] speaks of [SR]'s current circumstances. She says that [SR] stays home most days and "is extremely depressed". She says that [SR] and the children are "in turmoil"and that [SR] and the Appellant "are not able to function without each other".

45.   The Appellant's parents are in the UK. His mother, [IW] attended the hearing with [SR] but Ms Dogra confirmed that she did not consider it necessary for me to hear from her orally. [IW] is aged forty-seven years. She suffers from "seropositive rheumatoid arthritis" as is confirmed by a report dated 4 November 2017. She has "widespread joint pain and swelling with morning stiffness lasting 45 minutes". The Appellant accompanied her for review on the occasion which led to this report (in October 2017). [IW] is said to have difficulties with daily living. She is in receipt of personal independence payment. The Appellant's father [GW] is not said to have any medical problems. [SR] indicated in her evidence when asked whether the Appellant had been working during his recent stay in the UK that he might have been helping out his father who works in the construction industry.

46.   [IW] wrote a letter dated 12 December 2017 in support of her son's case. That sets out her medical problems and confirms that the Appellant was assisting her which allowed some respite for [GW] who also cares for her. She also confirms the strength of the Appellant's relationship with [SR] and the children. [GW] has also provided a letter of the same date which confirms that relationship.

47.   In addition to the above evidence, there are letters of support from friends and other family members. Those attest to the Appellant's family relationships and also confirm some support which the Appellant has given to others, for example, to [SR]'s cousin's son who has ADHD.

48.   Before I turn to the Appellant's own evidence, I set out the evidence about his criminal offences. Those are as follows:

24 November 2010: convicted of resisting/obstructing a police constable. Sentenced to a conditional discharge of twelve months.

25 January 2011: convicted of robbery. Sentenced to a twenty weeks' custodial sentence and remanded at a HMP Youth Offenders Institute. Also convicted of attempted robbery and three other theft offences. Sentenced to forty weeks consecutively in custody in a Youth Offenders Institute.

27 July 2012: convicted of robbery. Sentenced to twelve months' youth custody.

49.   The circumstances of the last of those offences are set out in the sentencing remarks as follows:

"..You have pleaded to a joint offence of robbery which took place earlier this year on the 24 ^th April. It was quite literally daylight robbery. You went up to another young man, approached him with your friend and accomplice, used some moderate force towards him and stole his Blackberry and other items. The Blackberry was recovered, which is a factor I take into consideration. What troubles me is you are a repeat offender. You appeared in front of this Crown Court in January last year and were given a 10-month sentence for no fewer than four attempted robberies and one robbery. Anyone who doesn't learn their lesson once is going to find a court less merciful on the second occasion, and you will find that trend repeated. If you carry on committing robberies, the sentences will get longer and longer...There are points to be made on your behalf. First, you pleaded guilty at the first available opportunity. Two, you've written a letter to the complainant, which I have read, which I have ordered to be passed onto him, which expresses regret and remorse. Three, I have read a number of positive features about you which I hope mean that this trend will stop. I have read from tutors at Feltham and I've read from college tutors, I have read personal letters from you to me, and from your family. I have taken them all into consideration as I do the encouraging comments made by the Probation Officer who has written the report on you. All these factors enable me to reduce the sentence but I can tell you that on a plea of not guilty, which is the starting off point, that for this repeat offence, it would have been 21 months of detention in a Young Offenders Institute. I shall deduct one third for your plea of guilty, reducing it to 14 months, and I will reduce it by a further 2 months to reflect the positive features about your character which I have read about.

The sentence of the court for this robbery, 12 months in a Young Offenders Institute. Time served already counts, I reduce that sentence by 75 days, and you will serve half the sentence I have just passed, the other half will be on licence in the community..."

50.   The Appellant appealed against the deportation order which was signed following that index offence. That appeal was under the Regulations (the 2006 version in force at that time). The appeal was dismissed by the First-tier Tribunal in a decision promulgated on 5 February 2013. The Tribunal accepted that the Appellant had acquired permanent residence. An OASys assessment was carried out in August 2012 as a result of the index offence. The Appellant was assessed as presenting a medium risk of serious harm to others and having a medium likelihood of reconviction ([81]). The Appellant is said to have frequently drunk alcohol, smoked drugs and "behaved anti socially to relieve his boredom". He said that he had distanced himself from his peers ([83]). Based on the risk which the Appellant was said to pose, the Tribunal upheld the deportation order under the Regulations. It also found that deportation was proportionate both under the Regulations and applying Article 8 ECHR. It did not accept that, at that stage, the Appellant had formed a family relationship with [SR] and [LR] ([99]).

51.   The Appellant came to the UK from Poland with his parents in August 2005. He was born in 1992 and was at that date aged thirteen years. The offences of which he was convicted were committed whilst he was a young man, but he was over the age of eighteen when he committed most of them. I also note that these were committed when he was already in a relationship with [SR] and the index offence occurred after [LR]'s birth.

52.   The Appellant has provided the following written evidence:

(1)    Undated statement (apparently from around December 2017)

(2)    Statement dated 28 April 2018 and e mail on which that statement is based

(3)    Undated letter written after deportation on 5 April 2018

(4)    Statement sent on 28 February 2019

I have read and taken account of what is said in those statements. There was no application on behalf of the Appellant for him to give oral evidence by video link.

53.   The Appellant confirms the relationship with [SR] and his two children. He says that he has "a very strong bond" with the children and "would love to carry on being in their lives and help them grow up into adults". In his statement from 2017, he says that he "doesn't see a point to live my life and would rather be dead than not to have them in my life" and that he loves his children and "would do anything for them". He says that he has turned his life around and cut ties with his previous acquaintances. He says that he is "a family man who wants to provide moral and financial support for [his] children." Of his relationship with [SR], he says that "she has got me through a lot of dark times in [his] life and helped [him] become the man [he is] today".

54.   None of the Appellant's evidence nor indeed that of any of the other witnesses deals with the dates when he returned to the UK after deportation in 2013 and again in 2018.

55.   As to his circumstances in Poland, the Appellant says that he was unable to find a job there. He says that he did not complete any education in Poland and therefore cannot secure any trade there. He says that his training for the Passive Fire Protection trade was all completed in the UK and that Polish employers will not accept the certificates obtained. There is no supporting evidence in that regard. He says that his past experience and training would allow him to obtain employment in that trade in the UK.

56.   There is some evidence of the Appellant's training and employment in the UK. The Appellant has produced tax returns which show the following:

Tax year 2011/12: did not work, was not self-employed and did not trade

Tax year 2012/13: did not work, and did not earn any money from self-employment

Tax years 2013/14, 2014/15 and 2015/16: not employed but was self-employed although no figures are given (I note also that the front page which would give the Appellant's address at the time is missing)

There is also a P45 form showing that the Appellant left a job on 8 August 2014 although no other details (concerning pay and tax to date) are completed.

57.   The Appellant has also provided a document relating to a Vodafone contract which is dated 20 December 2013. I note that the address given for the Appellant is in Enfield. Similarly, there is a letter from NatWest bank to the Appellant dated 24 September 2013 also at the same address in Enfield.

58.   The Appellant has provided a number of certificates in relation to qualifications obtained and training courses undertaken prior to his first deportation. There is also confirmation that he attended school in North London between April 2006 and July 2008.

59.   It appears that the Appellant also undertook courses in the UK following his first deportation. In particular, there is a certificate issued on 1 October 2013 in relation to the operation of "Mobile Elevating Work Platforms" and that he attended training courses in September and December 2013. There is also a sub-contractor agreement between the Appellant and "Red Contractors Ltd" dated 9 December 2013. The Appellant's address is the same address as above in Enfield. I note that [SR]'s address given on various of the documents dating between 2009 and the present is in Leytonstone (her mother's address).

DISCUSSION AND CONCLUSION

60.   The starting point for my assessment, as both parties accept, is the Appellant's relationships with [SR] and his children.

61.   Mr Jarvis did not dispute that the Appellant has a genuine and subsisting relationship with his partner and their children, including [LR] even though she is not his biological child.

62.   The Appellant has been deported on two occasions in March 2013 and April 2018 but has on both occasions returned in breach of the deportation order. As I have noted, there is no direct evidence as to when the Appellant returned on each occasion and I therefore have to do the best I can on the indirect evidence to establish how long he was in Poland and therefore apart from his family. Based on the evidence as set out above, it appears that the Appellant returned to the UK shortly after his first deportation. There is evidence that he had returned by as early as September 2013. However, that evidence suggests that he was not living with [SR] and [LR] at that time. He was giving an address in Enfield whereas [SR] has been living with her mother in Leytonstone. It is not clear what degree of contact the Appellant had with [SR] and [LR] at that time as both [SR] and the Appellant are silent on this topic and [SR] said she could not remember when the Appellant returned on this occasion.

63.   Be that as it may, the couple were evidently reconciled by early 2015 at the latest as [J] was born in late 2015 (although I note that his birth certificate also shows that the Appellant was not at the same address as [SR] at that time; he gave his parents' address in Enfield).

64.   It is also not entirely clear where the Appellant was living when he returned to the UK in 2019. Mr Jarvis put it to [SR] that the Appellant gave his parents' address on this occasion also but she said that this was not correct; he had been staying with her and the children. I am prepared to accept this was the case as the Appellant was arrested when she and the children were in the car with him.

65.   However, the above evidence does cast doubt whether the Appellant and [SR] were cohabiting at all relevant times. That is supported by [MA]'s evidence which indicates that [SR] and the children live with her but that the Appellant has spent much of the time with them. It is also consistent with the Appellant's parent's evidence that he has been able to provide support to his mother prior to his deportation.

66.   That the Appellant may not have been living with [SR] and the children all the time does not mean that their relationship is any less close. I accept [SR]'s evidence that the Appellant has been a support for her and that the children have a very strong bond with him. However, [SR] and the children do have a great deal of support from [MA].

67.   Mr Jarvis did not dispute that it is in the children's best interests to have both parents in the UK. I accept that is so. Although Mr Jarvis did not concede that it would be unduly harsh for [SR] and the children to go to Poland to live, he did not suggest that this would be anything other than very difficult. Based in particular on [SR]'s and [LR]'s medical conditions and the support on which they are reliant to deal with those conditions as well as the substantial reliance on their family, in particular [MA], I conclude that it would be unduly harsh for them to go to Poland to live with the Appellant.

68.   However, I do not reach the same conclusion in relation to the UK. It may well be, based on the indirect evidence to which I have had regard, that the Appellant and [SR]/[LR] were not in fact separated for that long following the first deportation. The Appellant may well have been out of the UK for only a matter of months. Even though I do not accept that he then went to live with [SR] and [LR] at that time (given the differences of address and lack of evidence that he did so), I am prepared to accept that the relationship continued in the UK during the period between late 2013 and April 2018 when the Appellant was deported for the second time. I also accept that the Appellant and [SR] were in a continuing relationship from early 2015 at the latest based on the birth of their child [J] at the end of that year.

69.   I do not downplay the difficulties which [SR] faces in her life. I also accept the evidence about the impact of the Appellant's deportation on the children. Whilst [J] has not apparently been greatly affected, based probably on his young age and adaptability, I accept that the absence of the Appellant has been very difficult for [LR] who has been significantly upset by his deportation. However, that is to be expected where a child is separated from his or her parent and I do not accept that this is anything other than the normal consequence of deportation. Similarly, whilst I accept that the impact on [SR] has been very difficult and may even be described as harsh, it is not at a level which can be described as unduly harsh. It is to her credit that she admitted in evidence that she is a bit more stable with the benefit of medication. She is also able to depend on support from her mother and other friends and family members. I recognise that her mother is not able to be there for her all day because she works. However, [SR] is able to do some things for herself. I note that she was able to attend the hearing even though her mother could not accompany her. [SR] said that she tries to be strong for the children and, whilst that is clearly a struggle for her, the impact is not of the high level which is required to meet the unduly harsh threshold.

70.   For those reasons, applying Section 117C, Exception 2 is not made out.

71.   I turn then to Exception 1 but only for the sake of completeness. As Ms Dogra accepted, the Appellant is unable to meet all three limbs of that exception. He has not been in the UK lawfully for half his life. Even assuming the period from 2005 to his first deportation in 2013 could all be considered to be lawful (which is doubtful given his periods of imprisonment), that amounts to only eight years. I also do not accept that there is evidence of very significant obstacles to integration in Poland. There is no evidence that he does not speak the language. Both his parents are from that country and he lived there until he was aged thirteen and must therefore have learnt to read and write the language. Although he says that he has been unable to find work there due to a lack of relevant qualifications, he has provided no evidence as to the efforts made. He has not provided evidence about where he has been living and with what support. In reality, it is probably the case that he did not stay in Poland for very long at all given the indirect evidence that he returned to the UK within months after his first deportation and stayed in Poland for no more than about eighteen months on the second occasion. However, he has failed to show that there are very significant obstacles to his integration there.

72.   Neither do I accept that the Appellant has shown that he is socially and culturally integrated in the UK. He arrived in the UK when he was aged thirteen. By the time that he reached the age of twenty, he had already committed a number of crimes. He was deported on the first occasion aged only twenty-one years and although it may well be the case that he has managed to live in the UK undetected for a number of years since, that has been whilst he has been here unlawfully and in breach of a deportation order. The flouting of immigration laws does not evidence integration.

73.   For those reasons, Exception 1 is not made out.

74.   I turn finally to consider the circumstances as a whole to assess whether there are very compelling circumstances over and above the two exceptions. I do so taking into account my conclusions, in particular in relation to Exception 2. Whilst I do not accept that it is unduly harsh for [SR] and the children to remain in the UK without the Appellant I have accepted that the consequences are harsh for them. I have accepted that they have a genuine and subsisting relationship as a family. I have accepted that it would be unduly harsh for them to go to Poland to live with the Appellant. Unless the Appellant is able to find another route to return to the UK lawfully, therefore, the consequence of this decision will be a permanent, physical separation of the family. [SR] and the children will have to rely as they have done recently on regular telephone contact and perhaps visits to Poland if [SR]'s medical conditions improve to the extent of being able to travel.

75.   The evidence indicates that the relationship with [SR] was formed initially when the Appellant was here lawfully, in around 2008. However, the couple were separated for a time. The Tribunal in 2013 did not accept that the Appellant had by then formed a family life with [SR] and [LR]. Even if it is the case that the relationship was formed initially when the Appellant was here lawfully, it has been restored and strengthened at a time when the Appellant has returned and remained here unlawfully and I give it less weight for that reason.

76.   The Appellant also has a relationship with his parents, [GW] and [IW] who also live in the UK. I accept that [IW] suffers from health problems. There is however limited evidence about the support which the Appellant can provide which his father cannot. His father is said to work but I have limited evidence that this has any effect on his ability to care for his wife and, in any event, if the Appellant were to remain in the UK, it is his evidence that he would seek and probably find work himself. I have no evidence whether the Appellant has any siblings in the UK who could assist with his mother's care. There is limited evidence about the level of care which she requires in any event. She is not said to be housebound. I observe that she was able to attend the hearing before me without apparent assistance from anyone other than [SR]. Even if I were to accept that there was any dependency between mother and son which amounts to a family life (as to which there is limited evidence), I can give little weight to this relationship when dealing with the interference with the Appellant's family life or, if family life is not established, his private life.

77.   Turning then to the Appellant's private life, I accept that he has lived in the UK on and off for a number of years and since he was a child. Assuming the indirect evidence is reliable, he lived here from August 2005 to March 2013 and then from about September 2013 to April 2018 and then for a few weeks in October/November 2019. That amounts to about twelve years. However, pursuant to Section 117B (4) and (5), I can give little weight to that private life. Much of it was formed whilst the Appellant was here precariously or unlawfully. After January 2011, the Appellant was in detention, subject to a deportation order and/or here in breach of the deportation order. Furthermore, there is limited evidence about the Appellant's private life outside his relationships. There is some evidence of having undertaken some education in the UK and having obtained some qualifications. There is some evidence that he has formed friendships, mainly with friends and relatives of [SR]. He is said to have helped some of those people with their problems. There is however limited evidence of the formation of social relationships establishing any strong private life in the UK. There is very little evidence that the Appellant has ever worked in the UK, other than possibly for a short period when he was self-employed.

78.   I have already dealt with the issue of the Appellant's private life in Poland. I have limited if any evidence about his circumstances there other than that he has had difficulty finding employment and there is no evidence that he has tried. It may well be the case that he has no relatives there. His parents are in the UK. However, he is a young and healthy man who has obtained qualifications in a number of fields whilst in the UK and says that he has experience in a number of areas of employment. He has shown resourcefulness in obtaining jobs in the UK in the absence of very much education here. I am not prepared to accept that he could not adopt the same resourcefulness to find employment in Poland.

79.   Turning then to the other side of the balance, I recognise that the index offence was committed over seven years ago. Even prior to that, though, the Appellant had committed offences. The two offences for which he was detained were ones of robbery; the first offence was of resisting/obstructing a police officer. They did not apparently involve any serious violence. However, the Appellant started to commit offences after only five years in the UK. His conduct showed blatant disregard for the laws of this country. I have already concluded that his conduct overall shows that he has not become socially or culturally integrated here.

80.   Moreover, as Mr Jarvis points out, the Appellant has re-entered the UK now on two occasions in breach of the deportation order against him. He may consider he has good reason to do so given his family relationships with [SR] and the children but, nonetheless, he has acted unlawfully in doing so and that is something which I take into account. It is yet more evidence that the Appellant pays no heed to the law. His most recent re-entry was late last year and whilst this appeal was ongoing. That he left voluntarily is not something to which I give credit. It appears that he did so only after being arrested for being here unlawfully.

81.   I also take into account the offence committed whilst he was here on that occasion. I note [SR]'s evidence about the circumstances in which that offence was committed. I accept that it may well have been because the Appellant was concerned about the effect of the arrest on [SR] and the children that he resisted that arrest. However, the fact remains that he committed that offence and this too shows that he continues to ignore the laws of this country.

82.   I also take into account the maintenance of effective immigration control. I make clear as I did at the outset that I am not here concerned with an appeal under the Regulations. An EEA national is not ordinarily subject to immigration control (Immigration Act 1988). However, the Appellant is the subject of an extant deportation order and for the purposes of an Article 8 assessment, the maintenance of effective immigration control is a factor in favour of the public interest which I can and indeed must take into account.

83.   As Mr Jarvis also pointed out, the Appellant, as the subject of a deportation order, is not allowed to work. Although I did not hear direct evidence about this, Ms Dogra did not dispute that the Respondent was entitled to rely on the Appellant having illegally worked. Some of the documentary evidence to which I have made reference above certainly suggests that he has worked at times in the UK when he has not been permitted to do so. That is also a factor which favours the public interest.

84.   Although I did not hear evidence from the Appellant, I accept Ms Dogra's submission that the Appellant speaks English. His statements and letters are in English and there is nothing to suggest that those were translated for him. I also accept that he has not had recourse to public funds whilst in the UK. Given his unlawful presence, it is understandable that he would not have sought benefits. However, those factors are in any event neutral when weighing up the public interest.

85.   Balancing the interference with the Appellant's family and private life, including the impact of deportation on the Appellant's partner, children and family members, against the public interest in maintaining deportation, I conclude that the public interest outweighs the interference. I have some sympathy for the situation facing [SR] and the children for whom this decision will doubtless be difficult to accept. However, they have others who can support them in the UK. The consequences for them arise from the Appellant's past conduct. The impacts are no more than are to be expected in a deportation case. The Appellant's conduct is such that this impact, whilst harsh, is proportionate when the public interest is taken into consideration.

CONCLUSION

86.   For the above reasons, I dismiss the Appellant's appeal. I make clear once again that I am considering this appeal only on the ground whether deportation is proportionate under the Human Rights Act 1998 and nothing I say above is or is intended to affect any decision or later appeal based on the Regulations which may involve different considerations.

DECISION

The Appellant's appeal is dismissed on human rights grounds (Article 8 ECHR) which is the sole ground of appeal.

Signed Dated: 16 January 2020

Upper Tribunal Judge Smith