Upper Tribunal (Immigration and Asylum Chamber)

IAC-FH-KH-V1

BAILII temporary Citation Number: [2010] UKUT B1

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/13542/2009

THE IMMIGRATION ACTS

Heard at Manchester
n 15th November 2010
Determination Promulgated
On 10th December 2010

Before SENIOR IMMIGRATION JUDGE TAYLOR SENIOR IMMIGRATION JUDGE C N LANE Between THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and [Respondent]

Respondent

Representation:

For the Appellant: Mr Barnes, instructed by the Treasury Solicitor

For the Respondent: Ms Vidal of Counsel instructed by Duncan Lewis & Co. Solicitors

DETERMINATION AND REASONS
1. This is the Appellant's appeal against the decision of Designated Immigration Judge McClure made following a hearing at Manchester on 3^rd November 2009. The Designated Immigration Judge allowed the Respondent's appeal against the decision of the Appellant made on 29^th June 2009 to give directions for his removal from the UK.

Background

2. The Respondent is a citizen of Iraq born on 1^st January 1978. He arrived in the UK on 31^st January 2001 concealed in the back of a lorry after travelling through Turkey and claimed asylum on the same day. His claim was refused on 18^th July 2001 and a subsequent appeal dismissed on 12^th November 2002.
3. The Respondent was detained on immigration matters on 17^th October 2008. On 22^nd October 2008 the Appellant decided to issue removal directions against him, and on 9^th March 2009 permission was granted to the Respondent to pursue an application for judicial review against that decision. The removal directions were cancelled but the Respondent remained in custody on immigration grounds until granted bail on 17^th April 2009. A further decision to remove was made on 24^th April 2009.
4. On 11^th June 2009 the Respondent's appeal came before Immigration Judge White. He recorded that both advocates accepted that the decision of 24^th April 2009 was not in accordance with the law because the decision of 22^nd October 2008 was still extant and the judicial review proceedings were unresolved. Immigration Judge White allowed the Appellant's appeal to the extent that the matter be remitted to the Respondent to make a lawful decision.
5. The judicial review proceedings were compromised in a consent order dated 4^th June 2009.
6. The final decision and the subject of the appeal before Designated Immigration Judge McClure was made in a Notice of Decision dated of 29^th June 2009. The Respondent had been required to leave the UK by 28^th November 2002 and had no basis of stay here. It was the Appellant's case that the Respondent's criminal behaviour justified his removal to Iraq.
7. The Respondent appealed on the grounds that the decision to remove him was unlawful as a breach of his rights under Article 8 of the ECHR.

The Appellant's Criminal History

8. The Respondent has committed a number of criminal offences during his time in the UK. On 4^th September 2002 he was cautioned for criminal damage.
9. On 10^th December 2003 he was convicted and sentenced to two concurrent terms of four months' imprisonment for criminal offences including driving a motor vehicle whilst disqualified, driving without insurance and failing to stop following a road traffic accident. In that incident a young girl, [ ], was killed.
10. On 22^nd December 2003 the Respondent was convicted of a further offence of driving whilst disqualified, driving whilst uninsured and driving without a valid test certificate on an occasion other than when the accident in which [ ] died occurred.
11. On 15^th August 2004 he was cautioned for possession of cannabis.
12. On 16^th August 2005 he was cautioned for burglary and theft.
13. On 4^th August 2006 the Respondent was again convicted for driving whilst disqualified and whilst uninsured and ordered to serve a two year Community Supervision Order.
14. On 13^th March 2009 he was convicted of offences of harassment, damage to property and theft and was fined.

The Respondent's Family Life

15. The Respondent resists removal on the grounds that this would bring about an infringement of Article 8. He says that he commenced a relationship with a British national, [ ], in or about June 2003 and they started living together from September 2003. [ ] has two children by her previous marriage, now aged 11 and 12 and they have not had any contact with their biological father since 2002. The Respondent and [ ] have two children of their own, [ ] and [ ], who are now aged 4 and 3. The Respondent says that he lives with [ ] and the four children, and that he enjoys a close and loving relationship with them which would be severed if he was removed to Iraq.

The Designated Immigration Judge's Determination

16. The Designated Immigration Judge recorded the evidence concerning the relationship between the Respondent and [ ]. It was the Appellant's contention as set out in her letter of 29^th June 2009 that the Respondent does not enjoy family life in the UK. It was accepted that he was the biological father of [ ] and [ ] but it was noted that the birth certificate for [ ], who was born on 11^th May 2006, showed [ ]'s residence as being different to [ ]'s. This undermined her statement that she started cohabiting with him around September 2003. Whilst [ ]'s birth certificate (she was born on 14^th September 2007) gives the same address for both parties, the Appellant doubted the Respondent's claim concerning the length of cohabitation and the level of emotional and financial support which the Respondent provides for [ ] and the children.
17. It was not accepted by the Appellant that the Respondent had shown that there was a subsisting relationship with [ ]'s children from a previous relationship although it was recorded at the time he was taken into custody by Immigration Officers all four children were present at [ ]'s address. The Appellant noted that the only documentary evidence which had been provided in support of the claimed cohabitation was the [ ] Estates tenancy agreement which both parties signed for a fixed term six month agreement on 15^th July 2008. The first payment for rent was six months after the date when [ ] alleged that she had begun residing with the Respondent at that address. The supplementary unsigned letter from [ ] Estate Agents implied that the family were living together for six months prior to the tenancy agreement being signed but in any event even if the couple were living at that address from 14^th January 2008 given that [ ] was detained in October 2008 he could only have resided at the property for a maximum of six months.
18. The Appellant noted that the Respondent had failed to provide documentary evidence such as utility bills, joint bank statements, council tax statements and tenancy or mortgage agreements dating back to when cohabitation was said to have begun.
19. The Appellant recorded the Respondent's claim to marriage with [ ] in accordance with Islamic law on 15^th July 2004 but he had failed to provide an Islamic marriage certificate to prove that the marriage had taken place. In any event even if he had entered into such a marriage it was not a civil marriage ceremony recognised by immigration laws governing the UK.
20. The Designated Immigration Judge had some concerns over the Respondent's and [ ]'s evidence. He noted that there were discrepancies in the oral evidence in relation to the claimed religious ceremony of July 2004. During the course of the hearing a religious certificate of marriage was produced by the Respondent's representative relating to a ceremony taking place in Nelson, Lancashire, on 2^nd October 2009. The Designated Immigration Judge said that he took account of the witness's failure to mention any of the details of the marriage in Nelson, Lancashire, and concluded that there was much about the evidence which was unsatisfactory and contradictory. For example he said that the suggestion that the Respondent helped the older children with homework was clearly not credible because he admitted that he had very limited ability in English. He therefore approached the evidence "with great care."
21. He found however that, having considered all of the circumstances, the couple had had a relationship which had lasted over a number of years, they had lived together over a number of years apart from periods when the Respondent has had to live elsewhere, in part to protect [ ] and the children from harassment, and concluded that the Respondent had proved that he had established a private and family life in the UK.
22. The Designated Immigration Judge took account of the criminal convictions of the Respondent, the most material being the tragic incident in which the young girl died. He said that had steps been taken to remove the Respondent shortly after that incident there would have been limited prospects of him succeeding. He recorded that the circumstances in which the Respondent left a young girl trapped under a car were serious. At that time there was little by way of private and family life that could have been set against his criminality and his immigration status for the purposes of striking the balance under Article 8. However, several years had passed since that incident in which the Appellant took no steps to remove him. During that time the Respondent developed a family life with [ ]. He said that the interests of all four children were of great significance. They are British citizens settled in the UK and their whole lives have been here. He recorded that he had to take account of the best interests of the children in assessing the proportionality issue and accepted they could not be expected to leave the UK to move and live in Iraq. He concluded as follows,

"I find that the Appellant has developed a significant and substantial relationship with those children and that the Appellant is acting as a father within the family unit. I do find that the relationship between the Appellant and [ ] is a substantial and significant relationship akin to marriage. I do not find that they have proved that they went through any religious ceremony in Birmingham. However I am satisfied that the relationship is of such significance that can genuinely be characterised as family life and that the best interests of the children is such that the Appellant should not be removed from the UK. Were it not for the children my view with regard to the matter may be [sic] different. However I find that the disruption and interference in the family lives of the children and therefore of the Appellant and [ ] would be of such significance that it is not proportionally justified to remove the Appellant from the UK."

23. On that basis he allowed the appeal on human rights grounds.

The Grounds of Application

24. The Appellant sought permission to appeal on three grounds.
25. Firstly the Designated Immigration Judge had failed to provide adequate reasons for finding that the Respondent enjoyed family life with [ ] and the children. Secondly, that the Immigration Judge failed to have full regard to the evidence of criminality as part of the proportionality assessment and thirdly he applied an incorrect test thereby creating an artificially high threshold for the Secretary of State to make out his case.
26. Permission to appeal was granted by Senior Immigration Judge Warr on 4^th March 2010 for the reasons stated in the grounds.
27. On 12^th November 2010 the Respondent's representatives served a Reply contending that there was no error of law in the decision, in particular arguing that there was no misdirection in law and that the Designated Immigration Judge's determination was in line with the leading jurisprudence, specifically the recent decision of LD (Article 8 - best interests of child) Zimbabwe [2010] UKUT 278.

Submissions

28. Mr Barnes relied upon his grounds and the skeleton argument which he had produced for the hearing and on the case of Chikwamba v SSHD [2008] UKHL 40.
29. With respect to Ground one Mr Barnes acknowledged that the hurdle which he had to cross in order to challenge the Designated Immigration Judge's findings of fact was a high one, namely that his conclusions were ones simply not open to him on the evidence. However, he submitted that this could be established in the present case. He noted the findings (as set out in paragraphs 102 and 111 of the determination) that the Respondent enjoyed a subsisting relationship with [ ] and the children over a long period of time. However, Mr Barnes submitted that there were only two facts which the Designated Immigration Judge could draw on in order to support this conclusion, namely that there were two children who were biologically his and that at the time of his arrest he was living with [ ] and her family. Against that the Immigration Judge recorded that the Respondent did not refer to his relationship with [ ] until after his arrest in October 2008 and there was no documentary evidence in support of his claim. The birth certificate for [ ] showed that at that time the couple were living at different addresses. Furthermore Mr Barnes submitted that the couple had produced misleading evidence concerning two religious marriage ceremonies. The Immigration Judge had not said why he had concluded at paragraph 111 that there was a significant and substantial relationship with the children of [ ]'s first marriage. Indeed the only observation he had made in relation to that claimed relationship was his rejection of the Respondent's evidence that he helps them with their homework. Any reasonable Immigration Judge, Mr Barnes submitted, would be driven to observe that there was an evidential lacuna in the evidence and in these circumstances it was not open to him to reach the conclusion which he did on the basis of the evidence which he had accepted. The only reasonable conclusion, Mr Barnes submitted, which could have been reached was that the Respondent had two children, one of whom had been born when he was living apart from [ ] and that they were together at the time of the arrest.
30. With respect to Ground two, Mr Barnes reminded the Tribunal of the Respondent's criminal history which demonstrated a persistent pattern of offending over a wide range of offences, namely driving, drugs, property and public order offences. Central of course to the Appellant's case was the incident in 2003 in which [ ] died. The Designated Immigration Judge, in Mr Barnes submission, appeared to have been taken with the fact that the Respondent's driving was not criticised but he had failed to appreciate that the Respondent simply should not have been driving at all. He was disqualified. He had no insurance. Neither did he learn his lesson since he was convicted again of the same offence in 2006. Mr Barnes acknowledged that the Designated Immigration Judge did say that the Respondent's behaviour was abhorrent and it was not argued that he had failed to appreciate the gravity of his offence. However it was submitted that he had not properly taken into account the breadth and pattern of the Respondent's offending behaviour. In this case, Mr Barnes submitted, there was a pressing public interest in the Respondent's removal to which the Designated Immigration Judge had given insufficient weight.
31. Finally Mr Barnes argued that the Designated Immigration Judge had failed to appreciate the Appellant's position. It was not that it would be reasonable for [ ] and the children to relocate to Iraq with the Respondent. The Appellant's case was simply that the Respondent should return alone to Iraq in order to apply for entry clearance to return to the UK. In the decision letter of 29^th June 2009 the Appellant made clear that it was her position that it was proportionate to require the Respondent to return to make an application for entry clearance if he wished to return to the UK. The Appellant's view was that the effect of separation between the Respondent on the one hand and [ ] and the children on the other, whilst the Respondent applied for entry clearance at the consulate section in Amman, was not a sufficiently compelling reason to allow him to remain in the UK. Because the Judge appeared to be of the erroneous view that the Appellant expected [ ] and the children to relocate to Iraq he failed to direct himself to the actual proportionality assessment that was necessary in this case.
32. Mr Barnes relied on Chikwamba which had to be properly considered and analysed and the Designated Immigration Judge, he said, manifestly did not do so. Chikwamba had held that there were exceptional cases in which an Article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the Respondent to apply for leave from abroad. This was one such case. The point was plainly material. Had he properly directed himself, the appeal, Mr Barnes submitted, would have been dismissed since the evidence of family life was notably weak, there was no good explanation for the lack of supportive evidence and the Respondent's account was riddled with inconsistencies. Whilst there were some elements of family life his starting point should have been that it was limited.
33. The disruption involved to that family life would, Mr Barnes submitted, be for a limited period. The Respondent had a very poor immigration history and at no time had attempted to regularise his status. The fact that the Appellant had not sought to remove him was not an argument in his favour. The Respondent had spent his time in the United Kingdom repeatedly committing criminal offences some of which might well give rise to the risk of imprisonment and he had thereby put his family life at risk by his own conduct.
34. Following a question from the Tribunal Mr Barnes acknowledged that the Respondent might face a refusal of entry clearance under paragraph 320 (19) of HC 395 of the Statement of Changes in the Immigration Rules which provides that entry clearance should normally be refused where from information available to the immigration officer it seems right to refuse leave to enter on the ground that exclusion from the UK is conducive to the public good; if, for example, in the light of the character conduct or associations of the person seeking leave to enter it is undesirable to give him leave to enter. However he submitted that no such refusal could be assumed and in any event it was appropriate that the Respondent go through the proper procedures.
35. Ms Vidal submitted that there was significant evidence before the Designated Immigration Judge to support his conclusions that there was family life in this case. He had summarised the issues which concerned him and stated that he had considered the evidence with great care. He knew exactly what he was dealing with and addressed the issues which caused him concern. The birth certificate for the youngest child had given him and his partner as living at the same address in 2007 which was prior to the arrest in 2008. Ms Vidal pointed out that before the Designated Immigration Judge there was substantially more evidence than Mr Barnes's submission suggested. He had witness statements from the Respondent, from his partner and from his mother-in-law. [ ]'s older children spoke in glowing terms of the Respondent as a father. He had also produced numerous photographs of himself with them as a family. There were also letters from other family members and friends in support. Moreover his partner and the children had been in court at the hearing before the Immigration Judge in June, at the hearing before the Designated Immigration Judge in November and were here again today.
36. The Appellant, she said, was fixed on the idea that there had been no documentary evidence to show where the family was living at any given time. Firstly cohabitation was not necessary to establish family life, but more importantly the Appellant had not recognised the difficulties of establishing the trappings of residence where an Respondent has no status. It was not, for example, possible to set up a bank account or to provide wage slips since he was not entitled to work. Given his immigration status it was not surprising that there were no utility accounts in his name.
37. With respect to grounds two and three she submitted that the Respondent's criminal convictions were uppermost in the Designated Immigration Judge's mind and formed a significant part of his analysis. He was well aware of the pattern of reoffending and condemned his conduct. He was entitled to observe, however, that there was no allegation of dangerous or careless driving in relation to the central incident, namely the accident in which [ ] died, described by Counsel as "an awful tragedy" and one of which the Designated Immigration Judge was well aware.
38. Ms Vidal submitted that there was no misdirection in law with respect to his reference to the best interests of the children, an approach which had been endorsed in a number of decisions of the House of Lords and most recently by the President in LD. The interests of the children were at the centre of this appeal. She submitted that the Designated Immigration Judge had said that if it was not for them the appeal would have been dismissed and this was the correct approach. She acknowledged that there was no reference in the determination to the possibility of the Respondent returning to apply for entry clearance but submitted it was not material. Overall this was a fully sustainable decision.

The Hearing

39. Following submissions we retired briefly and during that period were informed by the Clerk that [ ]'s father wished the Tribunal to consider a letter which he had prepared.
40. Following the resumption of the hearing Mr Barnes told the Tribunal that he had advised [ ]'s father that his letter would not be relevant to the Tribunal's considerations and indeed that if the Tribunal made reference to it that might be a ground of appeal should the Appellant's challenge to the Designated Immigration Judge's decision be successful. Nevertheless he submitted that it would be lawful for the Tribunal to look at it.
41. Ms Vidal submitted that it would be wholly inappropriate for the Tribunal to look at the letter which had not been before the Designated Immigration Judge on the day.
42. We have great sympathy for [ ]'s family; we recognise that these proceedings are uniquely painful to them. Nevertheless our sole task in this appeal is to decide whether the Designated Immigration Judge's decision contains a material error of law, that is whether he was entitled to reach the decision which he did for the reasons which he gave. The letter was not part of the evidence before him, was not referred to in the grounds and was therefore unlikely to be relevant to the issue we must address. It appeared to us, however, that we should read it and we did so. It emphasised the strong feelings of [ ]'s family but raised no relevant issues of which we had not already been made aware. We observe that the full text of the letter appeared in a number of national newspapers on the day after the hearing.
43. At the resumed hearing we advised the parties that we found no material error in the Designated Immigration Judge's factual findings on the existence and extent of the Respondent's family life but we reserved our decision in respect of Grounds two and three. We invited further submissions.
44. Mr Barnes relied on his previous submissions.
45. Ms Vidal reminded the Tribunal that the Appellant had made no attempt to remove the Respondent until October 2008 and whilst the Respondent had stayed on after his appeal rights had been exhausted, he had not sought to use any other identity nor made a fresh asylum claim and there were no additional offences other than those before the Tribunal.

Findings and Conclusions

(1) Family life

46. Mr Barnes reminded the Tribunal that the birth certificate for one of the children indicated that they were not living together around the time of his birth, that there were discrepancies in the claimed length of the relationship, that the claim was unsupported by documentary evidence and that the Designated Immigration Judge had rejected key elements of the Respondent's claim. The Judge had reached a conclusion not open to him on the evidence. Indeed it was said that the only reasonable conclusion of the Designated Immigration Judge was that the Respondent was the biological father of two children and that at the time of his arrest in October 2008 he was living together with them and [ ].
47. The evidence before the Designated Immigration Judge was as follows. There were witness statements from the Respondent, from [ ] and from her brother, [ ], all of whom gave oral evidence. There were also letters in support from the two older children [ ] and [ ] and from his mother-in-law. There was also evidence from other friends and family members, and evidence from Housing Association in respect of the joint tenancy. All confirmed that the family lived together.
48. The Appellant argued that it was very difficult to understand why the Respondent had developed a significant relationship with the older children given that the evidence that he helped them with their homework was rejected. However those children had both written to the court stating that they first met the Respondent in 2003 and that they lived together as a family. The Designated Immigration Judge found that the Respondent had exaggerated the extent to which he helped the older children with their homework but given that there is no evidence that [ ] has ever lived apart from her two older children and that the couple were living together, even on the Appellant's case, at least since 2007 it is difficult to see how the conclusion that the Respondent enjoyed a substantial relationship with the older children can be impugned.
49. The Designated Immigration Judge recorded the Appellant's concerns and in particular the lack of documentary evidence supporting the claimed cohabitation. There may well be good reason why it is difficult for someone in the Respondent's position to provide documentary evidence of cohabitation. He noted the fact that the Respondent's address was given as different from that of [ ] in [ ]'s birth certificate but it was also apparent from the determination that there had been a high level of public anger in relation to this case and that the Respondent has sought to protect [ ] and the children from the effects of that anger. Indeed, given that a year before his arrest the Respondent was shown as living at the same address on the birth certificate of his second child and that he is the father of a child born in 2006 it is hard to understand how it can properly be said that the Designated Immigration Judge's conclusion that there was family life in the UK was not properly open to him.
50. It seems to be the Appellant's position that the Designated Immigration Judge should have found that family life exists but is limited. Family life is assumed between the Respondent and his two biological children. If it is limited in the sense that the couple are not married then that is no bar to the existence of family life. If it is said that family life is limited to the extent that there is a lack of commitment between the Respondent and [ ], that is an argument which is difficult to sustain since [ ] has shown unwavering loyalty to the Respondent in extremely difficult circumstances.
51. The Designated Immigration Judge correctly reminded himself that, having found the Respondent not to be credible in all material respects, he should approach the evidence of the relationship with great care. He had concerns over some elements of the evidence in particular in relation to two religious ceremonies said to have taken place in 2004 and 2009. Indeed, he concluded that they had not shown that they went through any religious ceremony in Birmingham. He said that the fact that the Respondent and [ ] had not told him the truth in certain respects may be seen as a deliberate attempt to mislead the Tribunal and give substance to a relationship which has none. Alternatively it could be viewed as a desperate attempt to give greater substance to a real relationship by individuals who misguidedly believed that it will enhance the Respondent's prospects of remaining in the UK. There is no error in that approach. It is simply a statement of the obvious, namely that it could be concluded either that the Respondent was being wholly untruthful or that he had sought to enhance a claim which nevertheless had substance. He was simply outlining the task of a fact finding Tribunal, namely to reach a decision on the evidence as to where the truth lies. There is no error in respect of ground one.

(ii) Striking the balance

52. With respect to ground two, our decision is that the Appellant has not made out her grounds. Mr Barnes made it clear that he accepted that the Designated Immigration Judge very properly acknowledged the force of the central issue in this case, namely the Respondent's involvement in and the extent of his responsibility for the accident in which [ ] died. He said that the Designated Immigration Judge failed to appreciate the Appellant's concern that the Respondent simply should not have been driving at all. However that is not right. He stated in terms at paragraph 30 that the Respondent clearly should not have been driving.
53. The Respondent received a four month prison sentence for driving whilst disqualified and for leaving the scene of the incident. That was the prosecution's response to the offences which had been committed. We cannot and do not seek to go behind the prosecution decisions which were made at that time. At that time it was clear that no other charge was preferred.
54. The Respondent should not have been driving the car at all and it was his criminal conduct in disregarding the disqualification from driving, a penalty imposed both to punish previous offending and to protect the public, which resulted in the death of the child. It follows therefore that he was responsible for [ ]'s death. However when assessing the weight of that fact in the context of this appeal it is essential to remember that those responsible for taking decisions relating to prosecutions in the public interest concluded that he bore no criminal responsibility in terms of the manner of his driving. Whilst the Respondent was clearly culpable in the sense that he was driving when he should not have been, that culpability must be seen in this context.
55. The sentence reflects the crimes which were committed. It does not and of course cannot reflect the fact that [ ] was killed. We ourselves have the utmost sympathy with her family and cannot begin to understand the pain which they continue to suffer. However it is the task of law enforcement officers and the criminal courts, and not members of the public, however close they may be, to decide on whether an offence has been committed and if so which offence and what the relevant punishment should be. The Designated Immigration Judge was entitled to place weight on the fact that had the Respondent been culpable in terms of having driven carelessly or dangerously then he would have been charged and if convicted punished for those offences.
56. The Appellant's present complaint is that the determination did not pay proper regard to the persistence and extent of the Respondent's offending. It is right to say that the Respondent's record is poor. He has committed a number of different offences over a broad spectrum for a number of years and as a result has been imprisoned, cautioned, been placed on a two year Community Supervision Order and been fined. But the Designated Immigration Judge was clearly fully aware of the pattern of the Respondent's behaviour. Indeed he specifically stated that the Respondent continued to commit criminal offences including driving offences after [ ]'s death and the claim that he altered his behaviour thereafter rang hollow. The Respondent's persistence in his offending behaviour after [ ]'s death gives rise to deep-seated and understandable anger not only from her grieving parents but also the public more generally. His conduct is indefensible and his presence here continues to give pain to [ ]'s family. However the Judge was fully cognisant of that fact.
57. It was argued in the original grounds, although not at the hearing, that the Designated Immigration Judge erred in stating that he had to take into account the best interests of the children in assessing proportionality and that the required test was a balance between the rights of the family unit, including the children, and the duty of the government to enforce immigration control. The Upper Tribunal in the case of LD made it clear that the best interests of the children are always a relevant consideration in an Article 8 case, and that is all that the Judge said. He did not say that the best interests of the children would always be decisive and would thereby always take precedence over the public interest in removal.
58. Essentially ground two amounts to a disagreement with the decision but does not establish an error in law. It was for the Designated Immigration Judge to strike the balance and nothing put before us shows that he was not entitled to reach the conclusion that he did
59. Ground three is that the Designated Immigration Judge did not properly consider the case on the basis that it was put, namely that it would be proportionate for the Respondent to return to Iraq to make an application for entry clearance in the proper manner and that in the light of his offending behaviour any temporary separation from [ ] and the children would be proportionate. It was clear from the letter of 29^th June 2009 that it is the Appellant's position not that it was reasonable to expect [ ] and the children to relocate to Iraq but that the Respondent should be expected to return there alone to make his application for entry clearance and that any temporary separation would be proportionate. This was not considered in the determination at all.
60. In Chikwamba the House of Lords stated that the objective of maintaining and enforcing immigration control was undoubtedly a legitimate aim and that the real rationale for the policy of requiring persons in the UK to return to their home country in order to apply for entry clearance was said to be justified by deterring people from coming to this country in the first place without having obtained entry clearance and to do so by subjecting those who do come to the very substantial disruption of their lives involved by returning the abroad.
61. Lord Brown stated at paragraph 42 that

"Now I would certainly not say that such an objective is in itself objectionable. Sometimes I accept that it will be reasonable and proportionate to take that course. Indeed Ekinci still seems to me just such a case. The Appellant's immigration history was appalling and he was being required to travel no further than to Germany and to wait for no longer than a month for a decision on his application. Other obvious relevant considerations will be whether for example the applicant has arrived in this country illegally (say concealed in the back of a lorry) for good reason or ill. To advance a genuine asylum claim would of course be good reason. To enrol as a student would not. Also relevant would be for how long the Secretary of State has delayed in dealing with the case – see in this regard EB (Kosovo) v SSHD [2008] UKHL 41. In an Article 8 family case the prospective length and degree of family disruption involved in going abroad for an entry clearance certificate will always be highly relevant. And there may be good reason to apply the policy if the ECO abroad is better placed than the immigration authorities here to investigate the claim, perhaps as to the genuineness of a marriage or a relationship claimed between family members, less good reason if the policy may ultimately result in a second Section 65 appeal here with the Appellant abroad and unable, therefore, to give live evidence."

62. Lord Brown stated that it seemed to him that only comparatively rarely, certainly in family cases involving children, should an Article 8 appeal be dismissed on the basis that it would be more proportionate and more appropriate for the appellant in that case to apply for leave from abroad. This point was not considered by the Designated Immigration Judge and we therefore consider it for ourselves.
63. [ ] came to the UK in 2001 to seek asylum. His claim was found not to be credible and that he would not be at risk on return. The Respondent therefore did not come to the UK for a good reason. On the other hand many Article 8 appeals involve persons who have been found not to be in need of international protection and that factor in itself would not take the Respondent into the category of cases involving families where removal to apply for entry clearance would be proportionate.
64. There is no good reason why the Entry Clearance Officer Amman would be in any better position to assess the merits of the Respondent's case than the Tribunal.
65. Moreover there has been a substantive delay in this case. In EB (Kosovo) [2008] UKHL 41 the House of Lords considered in what ways delay might be relevant. Firstly, Lord Bingham stated that the Respondent might develop closer personal and social ties than he could have shown earlier and the longer the period of the stay the likelier this is to be true. Secondly, any relationship which he enters into is likely to develop from the shadow of severance by administrative order into an expectation that if the authorities had intended to remove the Respondent they would have taken steps to do so. Thirdly delay might be seen as evidence of the result of a dysfunctional system which leads to unpredictable inconsistent and unfair outcomes. All of these factors have relevance to the Respondent's case and go to his favour
66. The Appellant argued in the grounds that in Chikwamba the person benefiting from the proportionality assessment was a passive person to whom things had happened and in this case the Respondent had adopted an active role in wilfully repeating criminal offences. It is right that so far as the Respondent himself is concerned he has brought his misfortunes upon himself. However this submission misses the essential point that it is not only the Respondent's rights which have to be considered here but also those of [ ] and the children.
67. If the Respondent did return to Iraq and applied for entry clearance from Amman it is said that he may be faced with a refusal under paragraph 320(19). This is an argument in favour of his removal. The Respondent cannot rely upon his own criminality as an argument for remaining in the UK and not being subject to the normal rules governing entry clearance.
68. On the other hand the Court of Appeal held in MA (Nigeria) v SSHD [2009] EWCA that in assessing whether the removal of an illegal immigrant would breach his rights to family life regard must be had to the length of time required to elapse by paragraph 320 (7B) of the Immigration Rules before he would be allowed to return. Paragraph 320 (7B) is of course a mandatory refusal and any potential refusal under paragraph 320 (19) is discretionary.
69. It is not for us to try to second guess whether the Respondent would in fact be refused entry clearance on return and therefore we make no observations about the length of time which the children would be separated from their father save to say that it must be at the very least uncertain.
70. The position in this case, however, is that the Respondent has established that he has a right under Article 8 to be in the UK because of the family life developed between him, [ ] and the four children. It follows that, quite regardless of the Immigration Rules, refusing him entry clearance, in order to exercise that right would be unlawful as a breach of the Article 8 rights of all of them. In those circumstances it is difficult to see what relevance there can be in discussions about the exclusionary provisions of the Immigration Rules. It is also difficult to see what useful purpose could be served by requiring the Respondent to return to Iraq in order to apply in Jordan for an entry clearance to which he has become entitled under Article 8. That is particularly so given that the reason he has become entitled is the Secretary of State for the Home Department's delay in making a lawful decision in relation to his removal.
71. This indeed is a family case involving children, in a sense both [ ] and the Respondent's children. We recognise and to try understand the depth and nature of the feelings these proceedings must generate amongst members of [ ]'s family. Her father's letter is expressed in very strong terms. It describes the harrowing circumstances of her death. It asks that a balance be drawn between the Respondent's right as a father and his right as a father. The letter states that [ ]'s right to life ought to be considered and asks for a balance be drawn under the Human Rights Act.
72. However that is a misunderstanding of the task before this Tribunal. It is not a balancing of one person's human rights against those of another. It is an assessment of the public interest arguments justifying removal and the response to the offences which were committed balanced against the consequences of removal not only on the Respondent but on his partner and his children.
73. The Respondent was driving when he should not have been and left the scene of an accident when he should not have done and thereafter has continued to offend over a number of years. He served a sentence of four months in 2003 and the criminal offences which he has committed since are all reprehensible but none have resulted in terms of imprisonment. The Respondent clearly should not have been driving and certainly should not have left the scene of the accident but the sentence which he received as a result of those offences was relatively short and reflective both of the circumstances as they were on that day and of the public response to his blameworthiness. Mr Barnes does not represent [ ]'s family and nor do we. The interest to be balanced against that of the Respondent is that of the general public, not of individual members of it. Those are the facts upon which our decision must be based. That is of no comfort to [ ]'s parents. The court punished the Respondent for the offences which he committed and not the tragic consequences. But in the circumstances of this case, that must be the proper application of the law. It must also be the principle which guides us in this appeal.
74. We have found there to be no material error of law in Designated Immigration Judge McClure's conclusions in respect of the existence of his family life with [ ] and the children of the family including the Respondent's own two biological children. The findings are clear. This is a family unit, indeed a strong family unit, which has been subjected to a number of stresses over the years and has withstood them. Neither have we found that he did not take into account all relevant matters in his assessment of the proportionality of removal. The Appellant accepts that it would not be reasonable for the family to relocate together to Iraq for either a permanent or temporary period. Had the Designated Immigration Judge considered the point he would have found that if the Respondent were to return to Iraq to make an application for entry clearance that application would have been successful because to refuse would be a breach of the U.K.'s obligations under the ECHR. Accordingly it would not be more appropriate to require the Respondent to apply for leave from abroad.
75. We rely on the guidance of the House of Lords in Chikwamba, who in allowing the appeal of the Appellant in that case, where it was also conceded by the Secretary of State that the family as a whole could not relocate to the Appellant's country of origin, held that in most cases the article 8 claim should be decided once and for all at the initial stage and, if it is well founded, leave should be granted. The House of Lords distinguished Ekinci v SSHD [2005] EWCA Civ 1482 where the Appellant in that case was being expected to return to Germany for something under a month.
76. This is not a case where the relatively minor inconvenience of returning to a nearby country where administrative processes can be expected to run smoothly in order to apply for entry clearance can be regarded as a justifiable or sensible requirement. Given the findings and conclusions in respect of the article 8 claim it is hard to see what would be achieved by requiring the Respondent to return to Iraq since the entry clearance officer would be bound to conclude that a refusal of entry clearance would bring about an infringement of article 8 considered in the context of the family as a whole.

Summary

77. Drawing all of this together we can summarise the position as follows. The question facing the Designated Immigration Judge was not the same one now to be confronted by the Upper Tribunal. The task facing him in this appeal, where the issue was whether the Respondent's removal from the UK would bring about an infringement of article 8 of the ECHR, was to strike a balance between the competing interests in play. Provided he adopted a legally correct approach to that task, which we are satisfied that he did, that was essentially a fact-based assessment for the Designated Immigration Judge to carry out. Our task is a different one. It is not for us to reconsider the appeal its merits but to decide whether the conclusion which he reached was one that was open to him on the evidence that the parties chose to put before him.
78. In our view it is entirely clear that the Designated Immigration Judge did reach conclusions that were legally open to him. The Appellant has raised three challenges but in our judgement none is made out.
79. Firstly, the Designated Immigration Judge was plainly entitled to find that family life had been established between the Respondent, his partner and the children of the family.
80. Secondly, the complaint that he failed to have proper regard to the extent of the Respondent's criminality is misconceived, because it is entirely clear from the determination that he had in mind that this was at the very heart of the case being advanced by the Appellant. There can be no doubt that he did give appropriate weight to that factor when carrying out the balancing exercise required of him. He made clear that he was concerned not simply with the rights of the Respondent himself, but with the family as a whole, and he said that the outcome might well have been different if the process of removing the Respondent had begun before his family life had become so firmly established.
81. Thirdly although the Designated Immigration Judge should have addressed directly the submission that the Respondent should be required to return to Iraq to make an application for entry clearance to return, for the reasons we have set out in this determination, that cannot be regarded to be a material error in the circumstances of this appeal. We rely on the guidance of the House of Lords in Chikwamba, who in allowing the appeal of the Appellant in that case, where it was also conceded by the Secretary of State that the family as a whole could not relocate to the Appellant's country of origin, held that in most cases the article 8 claim should be decided once and for all at the initial stage and, if it is well founded, leave should be granted. The House of Lords distinguished Ekinci v SSHD [2005] EWCA Civ 1482 where the Appellant in that case was being expected to return to Germany for something under a month.
82. This is not a case where the relatively minor inconvenience of returning to a nearby country where administrative processes can be expected to run smoothly in order to apply for entry clearance can be regarded as a justifiable or sensible requirement. Given the findings and conclusions in respect of the article 8 claim it is hard to see what would be achieved by requiring the Respondent to return to Iraq since the entry clearance officer would be bound to conclude that a refusal of entry clearance would bring about an infringement of article 8 considered in the context of the family as a whole.

Decision

83. There is no material error in the determination and the decision stands. The Appellant's appeal is dismissed.

Signed Date

Senior Immigration Judge Taylor

(Judge of the Upper Tribunal)