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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/02451/2018

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision and Reasons Promulgated
On 29 April 2019	On 24 June 2019

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE SYMES

 

 

Between

 

RIABIAZ [K]

(ANONYMITY ORDER NOT MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Mr A Jafar (counsel for Lawfare Solicitors)

For the Respondent: Ms A Everett (Senior Presenting Officer)

 

 

DECISION AND REASONS

1.                 This is the appeal of Riabiaz [K], a citizen of Iran born 2 January 1990, against the decision of the First-tier Tribunal of 27 February 2019 dismissing his appeal against the refusal of his human rights claim (of 9 January 2018) made in response to deportation proceedings brought against him.

2.                 Taking the history from the appealed decision, the Appellant is recorded as having arrived in the UK on 16 November 2005, claiming asylum a few days later, that claim being refused on 17 January 2006; though as he was a minor he was granted discretionary leave to remain until 1 January 2008. He applied for further leave on private and family life grounds but that was refused, on 12 March 2008; however he was subsequently granted indefinite leave to remain on 10 February 2011 under the legacy programme. He applied for naturalisation as a British citizen during 2015 but that application was refused due to a conviction from June 2015.

3.                 The Appellant was convicted of actual bodily harm following a "road rage" incident for which he was sentenced (in November 2017) to eight months' imprisonment & required to pay a victim surcharge of £140; the June 2015 conviction was for criminal damage, for which compensation and costs orders each of £150 were imposed.

4.                 Once deportation proceedings were intimated, the Appellant's claim to remain in the UK was based on his relationship with his British citizen partner [JR] and their son [MK], born 12 July 2017. Deportation was nevertheless considered appropriate because the Respondent did not accept that the Appellant's relationship, whilst a genuine one formed at a time when the Appellant's immigration status was not precarious, was with a British citizen, and there was no evidence that his son was dependent on him, which was in any event unlikely given that he had only been born three months before the Appellant's incarceration. His son was presumed to be at an age when he could readily adapt to life without the Appellant. The Appellant had not lived in the UK for most of his life and so the private life route was foreclosed to him. He was not considered to be a persistent offender though had caused serious harm as shown by his assault conviction. This, taken with his other conviction, demonstrated his continued presence in the UK was not conducive to the public good.

5.                 A previous decision of the First-tier Tribunal allowing the Appellant's appeal of 18 June 2018 was found to contain legal errors such that the appeal was remitted for re-hearing, albeit with some preserved findings: that the Appellant was a "foreign criminal", that the appeal could not succeed with reference to Rule 399 in relation to family life, that he had a genuine and subsisting relationship and that it would be unduly harsh for his partner and child to relocate to Iran. Judge Monson in allowing that appeal found that the Appellant's actions were out of character, he had shown remorse and there was a low risk of re-offending. The child's best interests were for his father to remain in the UK with him, given he was his joint carer and financial provider, and if raised by his mother alone would suffer from the disadvantage in his formative years of having no daily contact with his father. The Upper Tribunal found that this decision was in error of law as no additional feature save for separation affecting the nature and quality of the relationship between the Appellant and his partner and child had been identified.

6.                 The Appellant's evidence was that he had met [J] in August 2009 and their relationship begun in March 2011. He had supported her and [M] via both self-employed and part-time employed work. He had become fully accustomed to the UK's culture having entered the country as a minor and was no longer a practising Muslim; he feared that his normal way of behaving would now cause him difficulties with the authorities in Iran. His father had fought against the Iranian government for the Kurdistan Democratic Party and been executed in 1992.

7.                 [J] was a Sikh and would face persecution and be unable to practice her religion in Iran.

8.                 There was reference to a further potential prosecution for intent to supply Class B drugs but as this had not proceeded to court, the Tribunal below left the matter out of account.

9.                 The First-tier Tribunal noted that this was not a case where the automatic deportation regime applied given the length of the Appellant's sentence was less than 12 months. By the time of the hearing the Secretary of State accepted that the Appellant's partner and son could not reasonably be expected to follow him to Iran were he to be removed. The question was whether there were "compelling" and therefore exceptional reasons why it would be inappropriate for the Appellant to be removed, acknowledging that this in practice would sever a subsisting and genuine relationship between the Appellant and both his partner and son. The Strasbourg Court had made it clear that the relevant question was the proportionality of the interference with private and family life, having regard to the nature and seriousness of the offence committed and the best interests of any children, and the fact that a child should be held responsible for the failings of parents, including criminality.

10.             One notable feature of the evidence was that [J] had clearly faced particular challenges in discharging her responsibilities with [M]; she needed support, either from the Appellant or from her sister, the latter having stepped in during the Appellant's spell of imprisonment though it had to be recognised that the Appellant's permanent absence would represent a very different challenge. [J] had given up her full-time employment at London Heathrow Airport.

11.             The Appellant's offence was serious notwithstanding that it did not reach the automatic deportation threshold. His victims would have been in significant fear given the sentencing remarks which stated this to have been an offence of "high culpability", and the act in question was a violent, sustained and unjustified incident of road rage which was an affront to decent society.

12.             Deportation naturally gave rise to the loss of a significant figure within a family unit, but the evidence did not here establish that it would be unduly harsh for [J] and [M] to live in the UK without the Appellant. Nor were there any unjustifiably harsh consequences when the case was considered outside the Rules.

13.             Grounds of appeal argued that the First-tier Tribunal had materially erred in law because

(a) It had set too high a standard for assessing undue harshness and had in effect introduced a "compelling reasons" test contrary to KO (Nigeria);

(b) It had failed to consider [M]'s best interests as a primary consideration: inevitably a prolonged separation of a two-year old son from his father would cause serious detriment to his welfare.

14.             The First-tier Tribunal granted permission to appeal on 2 April 2019, highlighting the "best interests" points, but without any restriction on what might be argued thereafter.

15.             Mr Jafar submitted that this was an appeal where the members of the small family unit were clearly very close to one another. The authorities such as De Souza Riberio v France emphasised the self-evident importance of a father to their child's development.

16.             Ms Everett submitted that whilst one should not trivialise the effects of separation between father and child, here the Judge had correctly identified the need for a case to exhibit additional features to render deportation disproportionate, beyond the issue of separation from partner and child, relating to the quality and nature of the relationship. No such factors had been identified by the Tribunal which had thus been entitled to dismiss the appeal.

Decision and reasons

17.             I accept that there were material errors of law in the decision appealed. Firstly, the First-tier Tribunal did indeed add a gloss on the Rules that in truth is not found within them. They pose the question as to whether an individual's expulsion would be unduly harsh for his partner and/or children; there is no further elevation of the relevant test to a requirement that the consequences be "compelling". See Lord Carnwath in KO (Nigeria) [2018] UKSC 53 §42:

"Mr Drabble for IT submits that the court's reasoning is open to the same criticisms as the decision in MM (Uganda) on which it relied. In any event he criticises the court's introduction of a "compelling reasons" test which is not found in the relevant sub-section. I agree that for that reason at least the Court of Appeal's reasoning cannot stand."

This is a threshold error which inevitably impacts on the assessment of all the conclusions made subject to it, whether or not there are otherwise overt flaws in that reasoning.

18.             Secondly, there is no distinct evaluation of the child's best interests found in the decision below. Reverting to KO (Nigeria) § 11, 15, such an evaluation is vital:

"The most recent version of the IDI (22 February 2018), no doubt taking account of Court of Appeal decisions to which I shall refer below, includes an additional paragraph, which more closely reflects the Secretary of State's submissions in the present case:

"The consideration of the child's best interests must not be affected by the conduct or immigration history of the parent(s) or primary carer, but these will be relevant to the assessment of the public interest, including in maintaining effective immigration control; whether this outweighs the child's best interests; and whether, in the round, it is reasonable to expect the child to leave the UK." (Family Migration: Appendix FM Section 1.0b. Family Life (as a Partner or Parent) and Private Life: Ten-Year Routes, p 76)

I start with the expectation that the purpose is to produce a straightforward set of rules, and in particular to narrow rather than widen the residual area of discretionary judgment for the court to take account of public interest or other factors not directly reflected in the wording of the statute. I also start from the presumption, in the absence of clear language to the contrary, that the provisions are intended to be consistent with the general principles relating to the "best interests" of children, including the principle that "a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent" (see Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690, para 10 per Lord Hodge)."

19.             The parties agreed that in the event that the Upper Tribunal identified an error of law in the decision appealed, it would be appropriate to retain the matter for final decision. Furthermore, given the evidence was available on file and that both sides considered they had had ample opportunity to make submissions on the legal framework and salient evidence, it was unnecessary to proceed to a further continuation hearing: a final decision based on the papers would suffice.

20.             It is now appropriate to review the available evidence in more detail than hitherto, particularly given that a significant element of Judge Monson's findings have been previously treated as preserved, an approach from which it has not been suggested I should depart. The Appellant's asylum claim, as summarised by Judge Monson in the First-tier Tribunal previously, was that his father had been executed in 1993 as a KDPI member. His mother and sister went to a refugee in camp in Iraq where the Appellant lived with them from 1996 until 2002. In 2003, his mother remarried and returned to Iran with her husband. The Appellant's stepfather did not accept him, and so he was left behind in the camp with his sister and brother-in-law. It was against their custom for his sister to support him, so his brother-in-law gave him money to pay an agent to bring him to the West. He eventually reached the UK having travelled across Europe from Turkey. He could not return to Iraq as his sister and brother-in-law could not be relied on to support him and he only had limited contact with his relatives in Iran.

21.             His application for further DLR was refused in March 2008 because the Secretary of State considered that the Appellant had now gained an education and the relevant skills such that he could be expected to work on his own behalf in Iran, and so would not need to rely on his relatives for financial support. His grant of indefinite leave to remain under the legacy programme was predicated on his strength of UK connections, length of residence and compassionate circumstances.

22.             The sentencing remarks record the context of the Appellant's road rage conviction, which had been recorded on camera, showing that following a dispute as to priority at a road junction a woman sought to remonstrate with the Appellant, who, together with his passenger, responded by assaulting her with objects that appeared to be blunt, using stabbing motions, until other motorists got out of their cars and intervened. The Appellant had originally claimed to have been the victim in the incident until confronted with this footage, at which point he pleaded guilty. The sentencing judge noted the Appellant's advocate's (doubtless inevitable) concession that this was a high culpability case where it was self-evident that there was an intent to commit more serious harm than happened to eventuate, with aggravating features such as the offence taking place on a busy road. Due mitigation was afforded the guilty plea, albeit one that was at the courtroom door, such that eight months' imprisonment was appropriate.

23.             Judge Monson concluded that notwithstanding the absence of medical evidence showing serious harm to the Appellant's victim it was appropriate to accept that he had intended serious harm, given the evidence recounted in the sentencing remarks: thus the Secretary of State just made out his case as to the Appellant falling under Rules 399/399A. That finding has not been challenged in the appeal before me.

24.             The Appellant had provided evidence of gainful employment for the period leading up to his conviction and sentence, having worked on a self-employed basis and at a car wash, from June 2016 until July 2017, and thereafter with SNDE Shawarma, earning £487.50 net, with earnings recorded by his P60 of £2,382.70 for the tax year ending April 2016. Nevertheless his partner's bank account was heavily overdrawn notwithstanding the receipt of substantial universal credit. Supporting evidence included testimonials such as one family friend, but there was little by way of integrative evidence in the UK. Doubtless as an ethnic Kurd he would suffer discrimination in Iran, but this was not demonstrated to be a very significant obstacle to integration.

25.             The Appellant's witness statement records that he shared parental responsibilities with [J] before his incarceration, accompanying her to doctors' appointments during her pregnancy, and his life now involved around [M]. His partner and son visited him in prison. He loved them and could not comprehend life without them. He feared capital punishment if he fell foul of the strict Iranian religious laws and did not feel well connected to Iranian culture. He feared for [J]'s life if she sought to practice her religion in Iran. He had had a lump in his lower back which required an operation in May 2018. He was carrying out ad hoc work to support his family. Recent payslips recorded his employment at a car wash on a similar income to that already referenced.

26.             [J]'s witness statement set out that she could not establish a life for herself in Iran. The Appellant had been a good companion and a great partner, and met all his fatherly duties; the love and trust in their house is an ideal atmosphere for [M] to grow up in a safe environment. She felt that she could not have got through pregnancy without him.

27.             A family friend, [SQ], produced a statement stating that he felt that the Appellant had learned a lesson from his prison sentence. [J] and [M] relied on the Appellant emotionally and financially: he provided for them well. Their separation would have a negative impact on his relationship with [J] and would hinder [M]'s development. Similar statements were provided by [HR], [PR], and [SD] (their landlord).

Legal framework and conclusions

28.             The Immigration Rules state:

" 398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and

...

the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

...

399 . This paragraph applies where paragraph 398 (b) or (c) applies if -

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.

399A . This paragraph applies where paragraph 398(b) or (c) applies if -

(a) the person has been lawfully resident in the UK for most of his life; and

(b) he is socially and culturally integrated in the UK; and

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported."

29.     Leaving aside the private life route which on preserved findings has already been ruled on adversely to the Appellant, the Immigration Rules lay down two routes by which deportation might be resisted for a person sentenced to between one and four years' imprisonment, or whose criminality is assessed as involving "serious harm". There are then specific thresholds to be met depending on whether there is a relationship with a relevant child, family life with a partner, or private life.

30.     There is the partner route by which family life is established via a genuine and subsisting relationship with a British citizen or settled partner (r399(b)):

-    where the relationship was formed at a time when the deportee was in the UK lawfully and their immigration status was not precarious

-    where it would be unduly harsh for their partner to live with the deportee abroad or without them in the UK, because of compelling circumstances over and above the Appendix FM level as expressed in EX.2, i.e. exceeding "very significant difficulties/very serious hardship."

31.     There is then the child route, which (so far as relevant here) for a British citizen child poses the question as to whether it would be unduly harsh for the child to remain in the UK without the Appellant. Approving the approach taken by the Upper Tribunal, in KO (Nigeria) [2018] UKSC 53 the Supreme Court held that the consequences for an individual will be 'harsh' if they are 'severe' or 'bleak' and they will be 'unduly' so if they are 'inordinately' or 'excessively' harsh taking into account all of the circumstances of the individual': all of which represents a higher threshold than identifying whether the consequences were merely "undesirable."

32.     Outside the Rules, regard must be had to section 117C of the NIAA 2002:

" 117C Article 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where-”

(a) C has been lawfully resident in the United Kingdom for most of C's life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted."

33.     Those who do not qualify for these routes under the Rules for one reason or another face a very high residual test if they are to avoid deportation. This is the same whether the question is posed within or outwith the Rules. Rule 398 states that "the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A."

34.     Outside the Rules, the public interest in deportation is expressed by the considerations identified in sections 117C-117D of the NIAA 2002, and will only be outweighed by other factors where there are very compelling circumstances over and above the three private and family life routes just described. As stated in NA (Pakistan) [2016] EWCA Civ 662, vis-á-vis medium offenders (i.e. those convicted of between one and four years' imprisonment) §27:

"... [F]all back protection of the kind stated in section 117C(6) avails both (a) serious offenders and (b) medium offenders who fall outside Exceptions 1 and 2. On a proper construction of section 117C(3), it provides that for medium offenders 'the public interest requires C's deportation unless Exception 1 or Exception 2 applies or unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.'"

35.     The Court of Appeal in NA (Pakistan) went on to explain §29 that

"A foreign offender who has to demonstrate very compelling circumstances over and above those described in the exceptions is not disentitled from seeking to rely on (factual) matters which fall within the scope of exceptions 1 and 2. A person in that position is entitled to rely both on circumstances that fall within and outside the exceptions in order to establish that his article 8 claim is sufficiently strong."

36.     The Supreme Court in Hesham Ali makes a series of important points as to how an appeal is to be considered outside the Rules including these:

(a) The overall question is whether a fair balance has been struck between the private and family life in existence, and the public interest;

(b) A national government is permitted to weight the balance in favour of the public interest if it considers that is necessary - the United Kingdom has done this very thing via the Immigration Rules cited above, alongside section 117C-D of the Nationality Immigration and Asylum Act 2002;

(c)   That weighting of the balance is achieved by the requirements expressed in various government policy statements and in the Rules: in general the focus now is on the existence of a compelling rather than an exceptional case (in Hesham Ali the Rules then in force made exceptionality the reference point). Given the expertise that government had in assessing the public interest, courts and tribunals should attach considerable weight to the Secretary of State's assessment;

(d)   It would be necessary to show "a very strong case indeed" where the Rules and statute required "very compelling circumstances" to be demonstrated;

(e) Nevertheless, whatever the public interest to which considerable weight had to be given, it was necessary to feed into the analysis the facts of the particular case.

37.     The authorities at Court of Appeal level post- Hesham Ali make clear the height of the hurdle that confronts putative deportees. In NA (Pakistan) [2016] EWCA Civ 662 Jackson LJ stated that "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." In WZ (China) [2017] EWCA Civ 795 Sir Stanley Burnton opined that it was not sufficiently out of the ordinary for a man living with his wife and two British citizen children to establish a low risk of reoffending where he had been sentenced to two years' imprisonment for drugs offences. A similar point is made, on facts even closer to those here, by Sales LJ in Mwesezi [2018] EWCA Civ 1104. He emphasises at §22 that the circumstances in Maslov, where the Strasbourg Court indicated that "very serious reasons" were required to justify the deportation of a youthful criminal who had only offended during their minority, were to be distinguished from the situation where very serious offences were committed well into adulthood. Also at §22 Sales LJ notes that the ordinary love and affection between family members falls well below anything amounting to compelling circumstances.

38.     As adroitly noted by Mr Jafar, Judges of the Grand Chamber of the European Court of Human Rights have noted the value of a parent to a child, see the concurring opinion of Judge Pinto de Albuquerque joined by Judge Vučinić in De Souza Ribeiro v. France (no. 22689/07), footnotes 41-42, referencing Article 1 of the United Nations Convention on the Rights of the Child and Articles 9 and 10 specifically for the right not to be separated from one's family except where a court decides otherwise, and noting:

"Moreover, scientific literature has already established that the abrupt separation of a young person from his or her family can cause irreversible, long-lasting, painful psychological damage, especially when that physical separation implies the severance of all ties with the core family (mother, father and brothers and sisters). Separating a young son or daughter from their parents can have profoundly negative effects, such as low self ‑ esteem, a general distrust of others, mood disorders, including depression and anxiety, socio-moral immaturity and inadequate social skills (see, for instance, Caye, J., McMahon, J., Norris, T., and Rahija, L. (1996), "Effects of separation and loss on attachment", Chapel Hill: School of Social Work, University of North Carolina at Chapel Hill)."

39.     These then are my conclusions on the appeal, in the light of the evidence and legal framework set out above.

40.     Firstly, I address the question posed by the Immigration Rules: would the Appellant's expulsion from the UK be "unduly harsh" for the family he leaves behind? The Appellant has lived in the United Kingdom for a significant period, having been born in January 2009, arriving in the UK in November 2005 aged 15¾, and now being aged 29. His ability to meet the private life route under the Rules has already been determined adversely to him; outside the Rules, of course, this aspect of his Article 8 rights retain relevance. This is not a case like Maslov, however, where there is offending during the Appellant's youth; his single act of significant offending has taken place well into adulthood. He has not lived in Iran for many years. He has limited family there, but he may well have extended family members who would offer him support if he was truly in need. Besides, a young man who can earn money for themselves can make their way in the world without family; doubtless he will face a harsher existence than would otherwise be the case, and he would suffer some discrimination as a Kurd, but the preserved findings already hold that this would not be unduly harsh.

41.     The fundamental difficulty facing the Appellant, as is doubtless the case for any comparatively new father facing deportation where there is no evidence raising issues of special dependency via a lack of alternative support within the family or a child's particular health needs, is that it is very difficult to identify any additional feature, save for the separation which is inevitable following deportation, affecting the nature and quality of the relationship between the Appellant and his partner and child. I cannot detect any such evidence here. The witness statements emphasise the Appellant's important role in his child's development. But he has already been absent for her life for a significant period during his imprisonment. [J] clearly has some supportive family around her.

42.     That no doubt is why Mr Jafar is compelled to cite generalised evidence (via opinions expressed in Strasbourg) of the potential difficulties posed by deportation given the inevitable separation that will ensue between parent and child. However, that represents the very starting point for the deportation process, one which Parliament has considered palatable bearing in mind the relative interests in play. As Sedley LJ stated in Lee [2011] EWCA Civ 348 §27: "The tragic consequence is that this family, short-lived as it has been, will be broken up for ever because of the appellant's bad behaviour. That is what deportation does."

43.     I have noted the reference to [J] needing her sister's support during the Appellant's imprisonment, from the decision below. However, the witness statements do not specify any particular enduring problems that were identified during the Appellant's incarceration. I infer that family support is indeed available. She will not be left alone to fend for herself. Of course, the need for permanent support is different to a short-term need. Life will indubitably be harder for mother and child than would otherwise be the case. However, there are a great many single parents who make a decent life for their children.

44.     In the light of these considerations, I do not consider that the Appellant has established that his family will face consequences which are "unduly harsh" if they remain in the UK without him (the other side of the enquiry, that life for them abroad would be "unduly harsh" has been understandably conceded by the Home Office, a conclusion that I would myself endorse; but they have to establish that both possibilities meet the test under the Rules). I am willing to accept that the consequences will be foreseeably "harsh" ("severe" or "bleak"), given that [J]'s future ability to care for their son will be less than would be the case were the family to remain intact. However I cannot accept that those consequences are "unduly" harsh, such that they are "inordinately" or "excessively" harsh taking into account all the circumstances. I consider that the circumstances here fall short of the threshold for undue harshness identified in KO (Nigeria).

45.     Nor do I consider that the "very compelling" threshold (the relevant one for a medium level offender who cannot meet the Rule 399/399A requirements) is met outside the Rules.

46.     It is difficult to identify any significant feature of the case that has not already been catered for in my consideration above. I appreciate that all those factors potentially fall for reconsideration outside the Rules, but absent some distinct additional factors to bring into account, one's conclusions are inevitably the same outside as within the Rules. A person whose circumstances fall exclusively within the exceptions may of course still be able to demonstrate very compelling circumstances if the facts they assert go well beyond a bare case under the exceptions, where the matters relied upon are especially compelling: OP (Jamaica) [2018] EWCA Civ 316.

47.     In carrying out this exercise I have regard to the fact that the rules found within section 117C do not provide for "any further room for balancing of the relative seriousness of the offence, beyond the difference between the two categories ... other than is inherent in the distinction drawn by the section itself by reference to length of sentence" (ie the two categories of cases that have to reach the "very compelling" threshold and those that do not": see Lord Carnwath in KO (Nigeria) §20, 23). So I have been careful not to hold the Appellant's offending against his son - at least more than is inevitable in applying the general requirement that the scheme of statute and Rules shifts the benchmark to the "very compelling" threshold.

48.     The starting point is that the Appellant has been convicted of a serious offence, as set out above. It is of course not at the highest level (four years plus) under the statutory framework: but it must be recognised as a medium level offence (albeit at the low end of that scale), given the finding that it involved serious harm. So there is a significant public interest in his expulsion, notwithstanding that he has not reoffended. Rehabilitation is, as the authorities remark, the least one can expect of an offender.

49.     I have no doubt that the Appellant's son's best interests would be to be raised in a loving environment with both parents present, and with the advantage of his father being present as a male role model. I accept that the general considerations identified in the concurring opinion in De Souza Ribeiro strongly indicate potential dangers to any child's well-being where they are abruptly separated from one parent. But I do not consider that can be said to be a "very compelling" factor. It is a routine factor present in many deportation cases involving family life. Parliament has chosen to set the bar higher than that.

50.     Reconsidering the factors above in the context of section 117C to ask whether the family's separation is disproportionate because of "very compelling" features being present, I do not accept any such factors are present. I appreciate that the Appellant will face diminished personal circumstances if he has to return to Iran, where he lacks social or other connections given he has lived in the UK in recent years and given that some family members have left the country (though others such as his mother have returned there), but he nevertheless has some family there. He has not raised any cogent challenge to the conclusion of the Secretary of State that he could be expected to find work in Iran, and he was granted residence in the UK on the basis of factors such as his length of residence and connections here, at a time when he had no criminal record. As a relatively young man who has work experience in the UK I believe he will be able to reintegrate in Iran; he may well find life there something of a "culture shock" but as the authorities show, that does not amount to a very significant obstacle to integration, and nor to my mind would any culture shock, taken with the relatively routine consequences of his separation from his family, reach the threshold of "very compelling".

51.     It is very sad that [J], who like their child is an innocent victim of the consequences of the Appellant's offence, now faces a real chance that her relationship with him will not survive due to the long (if not indefinite) physical separation they now face. But she has other family members to whom to turn. I do not find that the factors of family and private life, including the son's best interests, outweigh the significant public interest in the Appellant's deportation identified by section 117C where an offence involves "serious harm." So the appeal falls to be dismissed.

Decision

The appeal is dismissed.

 

 

Signed Date 17 June 2019

Deputy Upper Tribunal Judge Symes