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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> HU085162017 [2019] UKAITUR HU085162017 (11 April 2019) URL: http://www.bailii.org/uk/cases/UKAITUR/2019/HU085162017.html Cite as: [2019] UKAITUR HU85162017, [2019] UKAITUR HU085162017 |
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Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08516/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 11 th March 2019 |
On 11 th April 2019 |
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Before
UPPER TRIBUNAL JUDGE JACKSON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
CC
(ANONYMITY DIRECTION MADe)
Respondent
Representation :
For the Appellant: Mr Tufan, Senior Home Office Presenting Officer
For the Respondent: Ms A Nnamani of Counsel instructed by Samuel Louis Solicitors
DECISION AND REASONS
1. CC appeals against the decision of First-tier Tribunal Judge Davey promulgated on 5 October 2018 in which his appeal against the decision to refuse his human rights claim dated 26 July 2017, (in the context of a deportation order made on 25 July 2017, pursuant to section 33 of the UK Borders Act 2007), was allowed. For ease I continue to refer to the parties as they were before the First-tier Tribunal, with CC as the Appellant and the Secretary of State as the Respondent.
2. For the reasons set out in the decision annexed, I found an error of law in the decision of the First-tier Tribunal, set the decision aside and listed a further hearing for the re-make of the Appellant's appeal which came before me on 11 March 2019. The error of law decision sets out the factual and procedural background to this appeal which will not be repeated herein save as where relevant or necessary.
The appeal
Applicable law
3. The requirements where a person claims that their deportation would be contrary to the United Kingdom's obligations under Article 8 of the European convention on Human rights in so far as they are set out in the Immigration Rules and relate to this appeal are:
"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
(a) ...
(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) ... 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."
4. By virtue of section 117A of the Nationality, Immigration and Asylum Act 2002, Part V of that Act applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches Article 8 of the European Convention on Human Rights and as a result would be unlawful under section 6 of the Human Rights Act 1998.
5. Section 117A applies to the public interest considerations in all cases and section 117C applies additional considerations to cases involving foreign criminals. So far as relevant to this appeal, section 117B sets out factors to be considered in all cases and the additional consideration in cases involving foreign criminals provides as follows:
" 117C. Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where -
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh."
6. In KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, the Supreme Court considered the test for and factors to be taken into account when assessing the meaning of 'unduly harsh' in paragraph 399A of the Immigration Rules and section 117C(5) of the Nationality, Immigration and Asylum Act 2002. In paragraph 23, Lord Carnworth held as follows:
"On the other hand the expression "unduly harsh" seems clearly intended to introduce a higher hurdle than that of "reasonableness" under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word "unduly" implies an element of comparison. It assumes that there is a "due" level of "harshness", that is a level which may be acceptable or justifiable in the relevant context. "Unduly" implies something going beyond that level. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of the relative levels of severity of the parent's offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932, [2017] 1 WLR 240, paras 55, 64) can it be equated with the requirement to show "very compelling reasons". That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more."
7. Within the Supreme Court's consideration of the specific appeal in KO, further reference is made to the authoritative guidance on the meaning of unduly harsh given in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC), which held in paragraph 46:
"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 more severe, or bleak. It is the antithesis of pleasant and comfortable. Furthermore, the addition of the adverb 'unduly' raises an already elevated standard still higher."
Respondent's reasons for refusal
8. The Respondent refused the Appellant's human rights claim on the basis that none of the exceptions to deportation applied in his case and he was subject to the automatic the provisions in section 32(5) of the UK Borders Act 2007 following his conviction for theft for which he was sentenced to 2 years' imprisonment. The Respondent accepted that the Appellant had a genuine and subsisting relationship with his wife and children in the United Kingdom, but did not accept that it would be unduly harsh either for the family to relocate to Nigeria (the children were young enough to adapt, English is spoken there and the children could continue in education, and medical treatment was available) or for the Appellant's wife and children to remain in the United Kingdom without him. The family had struggled, but managed while the Appellant was in prison.
9. In relation to private life, it was accepted that the Appellant had been in the United Kingdom lawfully, but had not been here for most of his life and his criminal conviction shows that he was not culturally and socially integrated here. The Respondent considered that there would be no very significant obstacles to the Appellant's reintegration to Nigeria. Overall there were no very compelling circumstances to outweigh the public interest in deportation in this case.
The Appellant's evidence
10. In his first written statement, dated 8 July 2018, the Appellant sets out his immigration and family circumstances as well as details of his criminal offence. He arrived in the United Kingdom in May 2005 with entry clearance as the spouse of a British Citizen and was granted indefinite leave to remain as such in 2009. The Appellant states that during his time in prison, his family broke down. His wife was not able to cope and only able to do nursing agency work when available and the children were devasted with problems sleeping and were adversely affected in all areas of their lives.
11. The Appellant was the main breadwinner for his family in the UK, his mother and his sister, both of whom passed away in Nigeria when he was in prison. The Appellant has no other family remaining in Nigeria and his family in the UK have only visited there before when the Appellant's parents and sister were alive. The Appellant has no home or job in Nigeria and would be concerned as to his safety on return there.
12. During his time in the United Kingdom, the Appellant has been gainfully employed, has contributed to his community and charitable organisations. Whilst in prison he adhered to the prison rules and never had an IEP. The Appellant undertook further qualifications whilst in prison and has continued since release, but has not been able to work because he does not have the correct identity documents. Instead, the Appellant's wife works and the Appellant runs the daily family activities.
13. The Appellant has not reoffended, has had positive reports from the Probation Service and has been assessed as a low risk to the public in his OASys report.
14. In his second written statement, dated 20 February 2019, the Appellant refers to his children's educational attainment and emotional wellbeing dropping while he was in prison and absent from the family home, but with remarkable improvement since his release from prison. The Appellant's wife has returned to full-time work as a nurse and depends on the Appellant for child care of their children.
15. The Appellant states that if he is deported to Nigeria, it would be practically impossible for his wife to bring up their three children by herself and he would not be able to provide for them in Nigeria as he has no employment or home there. The unemployment rate in Nigeria is over 23% and the Appellant's wife would have to register there to work as a nurse which can take 6-18 months.
16. The Appellant attended the oral hearing, adopted his written statements dated 8 July 2018 and 20 February 2019 and gave evidence in English.
17. In cross-examination the Appellant accepted that he had received two cautions in the past, but neither was for ABH. The cautions were both related to issues between the Appellant and his wife, but he said that these were a mistake and he had never been any threat to her. However, he accepted that on the basis of these cautions, he was recorded as posing a medium risk of harm to a known adult in the OASys report dated 15 May 2018.
18. The Appellant was asked about the OASys report dated 15 May 2018, in which it was recorded that the Appellant did not accept guilt for the criminal offence. The Appellant said that there have been a number of OASys reports, including one before he went to prison which contained a number of mistakes and one completed on his release from prison which followed completion of a victim awareness course as confirmed by letter from his Probation Officer. The Appellant does accept his guilt for the criminal offence.
19. The Appellant has three children in the United Kingdom, two of whom have health issues with ongoing treatment and/or planned surgical procedures. The Appellant states that his wife would not be able to cope alone during these procedures, he would need to take his children to the hospital for their operations and it would not be possible for a single parent to do this, in particular because of his wife's employment and her responsibility for the mortgage. The Appellant's youngest child is also in receipt of speech therapy.
20. Whilst the Appellant was in prison, he stated that it was difficult for his wife who received only a little help from their neighbours in looking after the children. Everyone was adversely affected by his imprisonment, his wife was very distressed when she came to visit him and the children had been adversely affected at school, which has since improved.
21. In the United Kingdom, the Appellant has two brothers, both of whom are married but neither of them assisted the family during the Appellant's imprisonment. He stated that they live too far away and have their own children and family issues.
22. The Appellant's wife suffers from high blood pressure which is not always under control and is worse when under stress, which can cause the need to attend hospital when medication doesn't sufficiently address the problem. The Appellant's wife is a nurse and a qualified solicitor and although attached to a legal firm, does not work as a solicitor but only refers cases from people to the firm if needed.
23. I asked the Appellant further questions about the cautions he received. He stated that he had forgotten about the details of these because it was long time ago and only came up again in the context of his pre-sentence report. He stated that he was not aware that he had been formally cautioned but thought he had just been given a warning from the police when released after being arrested, not do anything again. The cautions were in the context of family arguments and his wife called the police who asked him to leave the house. On the second occasion, the Appellant stated that that his wife was holding him during a family argument with his brother, he pushed her away having asked her to leave him alone and she said he had hit her with the back of his hand. He reiterated that this was not a caution, only a warning. The Appellant was last in Nigeria in 2014, his immediate family in the United Kingdom last having visited in 2012. The Appellant has no remaining family or contacts in Nigeria.
The Appellant's wife's evidence
24. In her first written statement, dated 8 July 2018, the Appellant's wife sets out her immediate family relationships in the United Kingdom, her employment as a nurse and her support for the Appellant's appeal to remain in the United Kingdom.
25. In her second written statement, dated 20 February 2019, the Appellant's wife confirms that one of her daughters has Aplasia Cutis and another has been diagnosed with temporomandibular joint disorder; and both are in the process of receiving specialist medical treatment with further surgery planned for both. There are a number of NHS letters confirming the conditions, past treatment and upcoming appointments.
26. The Appellant's wife states that if the Appellant were to be deported, she could not possibly attend all the medical appointments for her daughters, work and manage her own blood pressure at the same time. During the Appellant's imprisonment, she relied on the help of friends and neighbours, but it was very difficult and she does not want to repeat that. The Appellant's wife is concerned that if the Appellant is deported, she would not be able to continue working and would have to rely on public funds, wasting her years of study, work and experience achieved over many years in the United Kingdom.
27. The Appellant's wife attended the oral hearing, adopted her statements dated 8 July 2018 and 20 February 2019 and gave oral evidence in English. The Appellant's wife stated that when the Appellant was in prison, she found it really tough to run her household. She had worked and trained hard to achieve qualifications in the United Kingdom and during this period was only able to manage her job as a nurse on night shifts so that she could take the children to school during the day. Neighbours helped look after the children at night but the children were not happy in this situation. The family received no support from the Appellant's brothers or their families. She describes this period as only managing to exist, not living and said that she didn't cope and struggled to support her children during this time.
28. The Appellant's wife suffers from high blood pressure following the birth of her third child, which is not completely controlled by medication.
29. In relation to the cautions given to the Appellant, the Appellant's wife stated that she blamed herself, that she was selfish and she reacted badly during an argument about religion. She stated the police should never have been involved and she regretted calling them. She was unable to recall the exact circumstances relating to the second caution but described it as happening after silly things and she called the police but stated again that she shouldn't have got the Appellant into that mess.
30. In relation to the Appellant's children, his wife confirmed the current medical treatment that they are under with further planned surgery and treatment.
31. In cross-examination, the Appellant's wife confirmed further details about the medical treatment in progress for children and stated that it was essential that the Appellant was there for the operations as he has always been there and is the primary carer of the children.
32. If the Appellant were to be deported, his wife stated that she could not rely on friends and neighbours to assist her again. In particular, circumstances had changed for her next door neighbour who would not be able to help now; there is no wider family support and is not anticipated that social services would be able to offer any practical support either.
33. The Appellant's wife was last in Nigeria in late 2017 or early 2018, when she travelled following the death of her mother-in-law and sister-in-law, staying for about seven days during the time when the Appellant was in prison. Prior to that she last visited in 2012.
Documentary evidence
34. An Independent Social Worker report was prepared by Stephanie Prempeh dated 11 July 2018 as to the best interests of the Appellant's children. The majority of the report records information given by the Appellant, his wife and children in interviews with Ms Prempah as to their views and concerns about relocating to Nigeria or remining in the United Kingdom without the Appellant; as well as recording the family relationships and responsibilities.
35. In terms of analysis, Ms Prempah sets out the importance of attachment between children and their parents and the harm that can result from separation, which would occur if the Appellant were deported. The Appellant has significant care responsibilities for his children while his wife is at work and his presence is a stable factor for the family. The potential for the Appellant to gain work in the future would also help alleviate the financial burden on the Appellant's wife. Ms Prempah primarily records the family view rather than determining for herself that the whole family relocating to Nigeria is not an option.
36. The final conclusion in the Independent Social Worker report is that the Appellant's children's emotional and behavioural development would be safeguarded and it would be in their best interests if the Appellant were not removed from the United Kingdom.
37. In her second report, dated 4 February 2019, Stephanie Prempeh, Independent Social Worker, recorded details of her further interview with the Appellant and his wife on 16 January 2019 in which they expressed significant concern as to the family living in Nigeria together and the position if the Appellant were deported. In the analysis section of the report, Ms Prempeh describes the potential adverse effects on the children of separation from the Appellant if deported and that his removal from the family may exacerbate the stressors on the Appellant's wife, including her health, treatment of the children's medical conditions and the family finances; which in turn my have an additional adverse impact on the children. As in the previous report, it was recorded that it was not viable for the family to relocate together to Nigeria.
38. There are a number of letters from the Appellant's children contained in the bundle. The most recent is from the Appellant's eldest daughter, which describes a sad and difficult time for her, her sisters and her mother when the Appellant was in prison and how this affected them at school and in their day to day lives. Since the Appellant has been released from prison, she describes a more positive time with improved performance and behaviour at school. The Appellant's daughter separately describes being aware of bad things happening in Nigeria and not wanting to go there.
39. The Appellant's OASys assessment dated 15 May 2018 was available within the bundle. It deals primarily with the index offence but also records details of two cautions received by the Appellant in 2013/2014 for common assault and ABH against his wife. These events were described in detail by the Appellant as domestic arguments, the first about food and money in which he held on to his wife's wrist, witnessed by his children and the police were called. The second incident was also a domestic argument during which it was said that the Appellant pulled away from his wife who was holding on to his jacket and pushed her, causing her to fall down the stairs. The Appellant's wife stated that these were misunderstandings and there was no domestic violence.
40. In relation to the risk of reoffending, the probability of proven reoffending was 24% in year 1 and 51% in year 2, which was a medium risk. The probability of proven non-violent reoffending was 19% in year 1 and 30% in year 2, which was a low risk. The probability of violent-type reoffending was 9% in year 1 and 16% in year 2, which was a low risk. The Appellant was also recorded as posing a medium risk of harm to a known adult - his wife, based on the previous cautions for assault and ABH.
41. In terms of risk of offending, it was further recorded that the Appellant presents well with probation officers, he has a pro-social attitude, no pro-criminal attitudes, and has been motivated to comply with his licence conditions. However, "In regard to [the Appellant's] motivation to address his offending behaviour, I have assessed this as being limited. [The Appellant] has stated that he has accepted responsibility for his role in the offence and is motivated to address how he went against company policy and procedure. However, he continues to deny that he was involved in the offence of theft and therefore his motivation to address offending behaviour is limited."
42. The report also contains details of employment, family and background information. It includes reference to the Appellant's younger brother in Nigeria and his wife working as a solicitor in the United Kingdom, providing the household's main income in addition to the jobseeker's allowance the Appellant has received since his release from prison.
43. The bundle also includes prison visit/communication records; qualification certificates; school certificates; medical records; and letters of support from the Appellant's local community and church members.
Closing submissions
44. On behalf of the Respondent, Mr Tufan confirmed that the Respondent did not rely on it not being unduly harsh for the entire family to relocate to Nigeria with the Appellant, albeit that would be a matter of choice for the family if they wish to. The Respondent's case was focused on it not being unduly harsh for the Appellant's wife and children to remain in the United Kingdom without him, such that there were no exceptions to deportation applicable in paragraph 399A of the Immigration Rules or section 117C of the Nationality, Immigration and Asylum Act 2002.
45. It was submitted that it is clear that the test of unduly harsh contains a very high threshold, which is simply not met on the facts of this case. The medical conditions of both the Appellant's wife and children were considered but treatment is available in the United Kingdom and can be proceded with whether or not the Appellant is here, his presence having at its highest only a minimal impact on the treatment. It was further submitted that without undermining the impact of the medical conditions on those involved, they were not the most serious conditions. Otherwise, the Appellant has not identified any circumstances beyond the normal effects of deportation on his family members and there is nothing to suggest social services wouldn't step in to help if needed after his deportation. In the absence of any of the exceptions being satisfied, the Appellant has not identified any very compelling circumstances over and above them to outweigh the very significant interest in public deportation in this case.
46. On behalf of the Appellant, Ms Nnamani submitted that in the present case it was clearly in the children's best interests of both parents to remain living together as a family in the United Kingdom for them to continue to receive care from their father. This would promote consistency, stability and continuing care, which has already been disrupted with a negative impact on the children's education and behaviour when the Appellant was in prison. There is medical evidence in relation to the Appellant's eldest child that assistance was sought for anxiety and upset while the Appellant was in prison and similar findings made in the Independent Social Worker's report.
47. It would be unduly harsh for the Appellant's family to remain in the United Kingdom without the Appellant given the severe and bleak set of circumstances facing the family without him. Is important to consider the age of the children, the family circumstances and how in reality the Appellant's wife would cope as a single parent. Reliance was placed on the decision in Siwak v Prosecutor General's Office, Poland [2019] EWHC 333 (Admin) which although concerning extradition, shows the relevance of consideration of circumstances of children how the remaining parent would be able to cope in the absence of the other parent. In the present case there is medical evidence in relation to the Appellants wife's long-term medical conditions, anxiety and she has clearly expressed concern for her own future mental health. The loss of the Appellant, an active father who has always been involved with his children and supported them through medical treatment would be significant and any sporadic contact or visits following deportation would not be comparable to the current situation with day to day direct contact with him. Further, it was submitted that it was not clear what support social services would or could provide to this family given the need for emotional support, childcare and financial support if the Appellant were to be deported.
48. In all the circumstances, it was submitted that the separation of the Appellant from his family would lead to negative long-term consequences and effects on his children, with significant weight placed on the Independent Social Worker's report.
49. In the alternative, if it is not considered unduly harsh for the family to remain in the United Kingdom without the Appellant, it was submitted that there were in any event very compelling circumstances over and above the exceptions to outweigh the public interest in deportation in this case. The Appellant's conviction and cautions must be taken into account, including the circumstances of the cautions as set out in the oral evidence which were given in 2013. The Appellant has undertaken victim awareness courses and professional training, he has complied with his licence conditions and repaid the value of goods stolen in full. There are positive letters about him from the Probation Service which show no concerns as to a criminal lifestyle or pattern of offending, and show evidence of continuing rehabilitation.
50. In addition, the Appellant has lived in the United Kingdom lawfully for more than 12 years, he was granted indefinite leave to remain and has fully integrated in society, working and contributing to the community. He has been convicted of a single offence which doesn't reflect a poor lifestyle or pattern of behaviour and presents only a low risk of reoffending with a low risk of harm to the public. The Appellant has undertaken courses and further professional qualifications to support continuing rehabilitation in the United Kingdom. He has strong family life in the United Kingdom and a lack of connections to Nigeria. The impact of deportation on the Appellant's family would be considerable. Overall therefore the Appellant's rights outweigh the public interest in deportation on the facts of this case.
Findings and reasons
51. The Appellant was convicted of an offence of theft on 4 November 2016 and sentenced to 2 years' imprisonment, ordered to pay a victim surcharge and was also subject to a confiscation order in the sum of £16,000. This offence triggered the automatic deportation provisions contained in section 32 of the UK Borders Act 2007 and a Deportation Order was made on 25 July 2017. The Appellant appeals on human rights grounds that his deportation would breach his Convention Rights (section 33(2) of the UK Borders Act 2007) and that he falls either within the family life exception in paragraph 399 of the Immigration Rules and/or the first exception in section 117C(3) of the Nationality, Immigration and Asylum Act 2002.
52. The primary issue in this appeal is, pursuant to those provisions, whether the effect on the Appellant's wife and children of remaining in the United Kingdom if he were to be deported to Nigeria, would be unduly harsh. The Respondent is not relying on any argument that it would not be unduly harsh for the entire family to relocate to Nigeria, albeit it remained a matter of choice for them if they wished to do so.
53. In the alternative, the Appellant submits that there are very compelling circumstances to outweigh the significant public interest in his deportation from the United Kingdom. There is no reliance on the private life exception to deportation set out in either paragraph 399A of the Immigration Rules and/or section 117C(4) of the Nationality, Immigration and Asylum Act 2002.
54. As a starting point, the best interests of the Appellant's children need to be determined to be taken into account as part of the assessment of unduly harsh and/or very compelling circumstances. It is trite to recall that the best interests of a child are normally to be with both parents in the same country and that position is affirmed by the first Independent Social Worker's report which reaches that conclusion in relation to the Appellant's three children in this case.
55. The Appellant's three children, now aged 8, 11 and 13, are all British Citizens who were born in the United Kingdom and have lived here for their whole lives as part of the family unit with their mother and father, save for the period of the Appellant's imprisonment when they lived only with their mother. The children are all in education and to a greater or lesser extent are receiving specialist therapy and/or medical treatment in the United Kingdom, at present and on an ongoing basis. The Appellant's evidence is that he normally takes the children to medical appointments while his wife is at work.
56. The Appellant has a relatively close relationship with his three children, being the day-to-day primary carer of them in the United Kingdom while his wife, as the sole breadwinner for the family, is at work or sleeping during the day after a night shift. He maintained regular contact with his children during the time that he was in prison, with calls and emails to and from the family and regular visits.
57. There is evidence from the Appellant, his wife and the children themselves about difficulties the children had while the Appellant was in prison, including being upset, suffering from anxiety and not performing or behaving as well at school. This is repeated in the Independent Social Worker's report, in which reliance is placed upon letters from the school, the same documents being referred to by the Appellant in his written statement. However, the letter from the school expressly relied upon, the only one available in the bundle which deals with the issue of behaviour, relates to a period of time after the Appellant's release from prison and not during his absence from the family home and therefore does not provide support for the evidence given by the family at all. Although there is a lack of supporting evidence from the schools about the impact on the children's education while the Appellant was in prison, it is a common occurrence that the type of difficulties described in this case occur in such situations and I find it more likely than not that they did in this case; albeit there is nothing to indicate the issues were particularly serious or long-term and a repetition with behavioural issues, at least in respect of one of the children after the Appellant's release from prison has resolved.
58. In the circumstances already set out, I find that it would be in the best interests of all three children to remain in the United Kingdom with both their mother and father, continuing with their established lives here with both parents. As is almost always the case, separation from a parent is likely to have an adverse impact on the children, however I return to the question below as to whether in this case the Appellant's removal would be unduly harsh on the children.
59. The Respondent has accepted that the Appellant is in a genuine and subsisting marriage with his wife in light of the previous grant of entry clearance indefinite leave to remain on that basis. There is evidence of their continuing cohabitation and contact during the time the Appellant was in prison and I find that they are in a genuine relationship, albeit the strength of which is somewhat reduced for the following reasons. There was a lack of evidence as to the substance of the relationship before the First-tier and Upper Tribunal, the only aspects of which that were expressly dealt with by either the Appellant or his wife were the Appellant's support in terms of childcare to allow his wife to work and in relation to the cautions for domestic violence incidents in 2013/2014.
60. As to the cautions, I do not accept that either the Appellant or his wife gave credible evidence in relation to the cautions. First, for a caution to be given at all, a person must accept that an offence was committed and a formal process is followed. The Appellant's suggestion that he was only given a warning from the police not to do it again is not credible. Nor is the suggestion that two separate incidents resulting in a police caution for common assault and ABH were due to a misunderstanding. The Appellant must have expressly accepted the offences were committed for a caution to have been given at all. Secondly, the evidence as to the incidents themselves are inconsistent between the explanation given by the Appellant recorded in the OASys report, the Appellant's oral evidence and the Appellant's wife's oral evidence. It is also of particular concern that the account in the OASys report records that the Appellant's children witnessed the first incident of common assault and that the police attended on both occasions to remove the Appellant from the family home. Thirdly, the Appellant was assessed in May 2018, some four or five years after the cautions, as posing a medium risk of harm to a known adult, his wife; such that I do not accept that there was any prior misunderstanding nor no continuing risk or concern.
61. In terms of the family position in the United Kingdom, the Appellant and his wife both state that they have no wider family or other support here and only friends and neighbours gave limited support while the Appellant was in prison, much of which could not be replicated in the future because of the change of circumstances in particular for the Appellant's next-door neighbour who is said to have provided most of the support.
62. Although I accept that the Appellant's parents and sister are deceased, as is the Appellant's wife's brother, I do not accept as credible the evidence from the Appellant and his wife that they have no family or other support in the United Kingdom nor any family remaining in Nigeria. It is clear from the prison visiting communication records that a wide range of people visited the Appellant whilst he was in prison and the emails to him from his wife refer on multiple occasions to contact and visits with 'Aunty' (whether or not a blood relative) and other friends and/or family visiting the household. There is also reference in the OASys report (in May 2018) to the Appellant having a younger brother in Nigeria and from the Appellants wife's email to the Appellant in January 2017, that she would see the Appellant's older brother at home in Nigeria. I find that this brother or brothers in Nigeria are in addition to those in the United Kingdom given the Appellant's evidence and his wife's evidence of where they lived in the United Kingdom whilst the Appellant was in prison and now - at least in part to explain why they did not visit or offer any support to the Appellant or his family then or now.
63. In addition, there are multiple statements from friends within the community, many of whom attended the oral hearing in the First-tier Tribunal to give evidence on behalf of the Appellant and who are therefore likely to have provided at least some level of emotional, if not practical support to the family whilst the Appellant was in prison and no reason why they would not do so in the future. For these reasons, I do not accept the Appellant's evidence that he has no family remaining in Nigeria, nor the suggestion that there is no wider family or community support in the United Kingdom.
64. In light of the above findings, I consider whether the Appellant's deportation would be unduly harsh on his wife and children if they were to remain in the United Kingdom. The submission on behalf of the Appellant is that his deportation would be unduly harsh on his family by reference to the context and circumstances of this family and the likely impact on them in the event of deportation. Particular reliance was placed on the children's best interests, the appellant's wife's and children's health conditions; the additional strain on family finances and the Appellant's wife's practical ability to continue in paid employment, including due to a lack of wider family or other support.
65. As is almost inevitable in any deportation situation, the removal of a parent is likely to have an adverse effect on any children with whom they have a genuine parental relationship. That is the natural and ordinary consequence of a deportation order on a family and on the children in particular, both in emotional and relationship terms but also as a matter of practicality that a family is, on a day to day basis, reduced to a single parent. Although following deportation a person may be able to find employment from their home country and provide some financial assistance to the family remaining in the United Kingdom, it is also almost inevitable that the family finances would be adversely affected by the deportation of a parent. Further, in circumstances such as the present case, where one parent is effectively unable to work (or not permitted to do so due to their immigration status or pending deportation), it is almost always the case that the parent facing deportation will have a greater role in day-to-day childcare than the other parent, upon whom all of the financial responsibility for the family then rests and who is therefore likely to be in employment.
66. Consequences such as these for the family, which are likely to contribute in a wider way to an adverse effect on the children, are expressly relied upon by the Appellant. He submits that he would be unable to financially support his family from Nigeria given poor employment prospects and the high rate of unemployment there and that his wife would be unable to continue in her current employment because of the practical problems of childcare and financial burdens. However, the Appellant has submitted no evidence at all of his family finances to show income or outgoings and it is noted that at present he is able to contribute little (possibly jobseekers allowance as referred to in the OASys report) or nothing, which has been the position since his imprisonment in late 2016. There is a lack of evidence to show that the family would not be able to cope financially if the Appellant is deported, given that they have been managing without any or any significant contribution from the Appellant or anyone else for some time, nor that childcare is not affordable such that the Appellant's wife's employment could not continue. The Appellant's wife is both a qualified solicitor and a qualified nurse, with inconsistent evidence as to what work she is actually undertaking but both are professional roles. In addition, public funds would be available if necessary to support the family, although I appreciate the Appellant's wife would prefer to work and use her qualifications and experience rather than rely on public funds.
67. The Appellant's wife has expressed concern about her ability to cope in the future, of her ability to manage on health problems and of possible future mental health problems if the Appellant was deported, but there is no medical evidence in support of that and no history of mental health problems. It is clear that she does have friends and neighbours in the community who are supportive of the family, as well as medical support and treatment available for her existing condition as well as any possible future mental health problems should they arise.
68. The Independent Social Worker report goes no further than identifying the usual consequences of deportation of a parent on children of the family, within the wider context of the potential impact on the family as a whole. No specific factors are identified which go beyond the generally accepted position and adverse impact on children in particular in deportation and there is nothing in either report to identify any unduly harsh impact on any of the children.
69. As confirmed by the Supreme Court in KO (Nigeria), what is required by the expression "unduly harsh" in the exceptions to deportation is a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. It is not something which is uncomfortable, inconvenient, undesirable or merely difficult, it is a much higher threshold. Harsh means something more than severe or bleak and the addition of "unduly" raises an already elevated standard still higher.
70. On the facts of the current case, there is little doubt that the impact of the Appellant's deportation on his wife and children would be adverse, in terms of the impact on their emotional, educational and financial well-being. However, the evidence does not show that the effect of the Appellant's deportation would reach the high threshold of being unduly harsh on any or all of his children or on his wife, taken individually or as a whole. The factors relied upon by the Appellant, even taking into account the medical conditions of his wife and children and the likely family situation, do not go beyond what would reasonably be expected or necessarily be involved for any child faced with the deportation of a parent or wife faced with the deportation of a husband. The family situation after deportation would undoubtedly be difficult on a practical as well as emotional level, but that is insufficient to meet the high threshold of deportation being unduly harsh on family members to satisfy this exception to deportation.
71. In the alternative, the Appellant submits that there are very compelling circumstances to outweigh the significant public interest in his deportation, as set out in section 117C of the Nationality, Immigration and Asylum Act 2002.
72. The following matters are relevant to the public interest in deportation. The Appellant has been convicted of theft for which he was sentenced to a term of imprisonment of two years. The circumstances of the offence were that he was part of a conspiracy to steal mainly computer equipment, which involved a breach of trust, the offence having been carried out in the context of his employment as a Parcelforce delivery driver and the estimated value of goods was in the region of £130,000. This on any view was a serious offence and one for which the Appellant has, at least in the past, if not continuing to date, not accepted full responsibility. Although the Appellant has undertaken a victim empathy course and has obtained further professional qualifications, doubts have been raised as to the limit to which the Appellant has addressed his offending and he has still been assessed as posing a low to medium risk of harm to the public and/or a known adult (as set out above in the relatively recent OASys report dated 18 May 2018). There is in addition the wider public interest in deterring criminal offences and protecting the public.
73. In the Appellant's favour, the following factors are relied upon to outweigh the public interest in deportation. First, the Appellant has lived in the UK lawfully for more than 12 years and was granted indefinite leave to remain in 2009. Secondly, he is fully integrated in society has worked and contributed to the community. Thirdly, he committed a single isolated offence and has no pattern of offending behaviour. Fourthly, the Appellant has undertaken awareness courses and further professional qualifications showing rehabilitation. Fifthly, there is a low risk of reoffending. Sixthly, the Appellant as a British wife and three British children and deportation would have a considerable adverse impact on his family, their emotional, health, educational and financial well-being. Finally, the Appellant's connections Nigeria have diminished over time and he has no immediate family remaining there.
74. The strongest factor in the Appellant's favour is in relation to his wife and family United Kingdom but I have already found that the impact on them, individually or cumulatively, would not be unduly harsh if the Appellant would be deported. Even taking into account the current and future possible health needs of members of the family and the likely position of the family following deportation, even if, contrary to my findings above, there is a lack of family or community support in the United Kingdom; these matters, even taken together with the Appellant's length of time with leave in the United Kingdom and his employment history here and together with only a single criminal offence; does not outweigh the very significant public interest in his deportation. The Appellant has been unable to identify, individually or cumulatively, any very compelling circumstances over and above the express exceptions to deportation contained in the Immigration Rules and in section 117C of the Nationality, Immigration and Asylum Act 2002 to outweigh the public interest in deportation. His appeal is therefore dismissed on human rights grounds.
Notice of Decision
For the reasons set out in the decision annexed, the making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it was necessary to set aside the decision.
The decision is remade as follows:
The appeal is dismissed on human rights grounds
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Signed Date 8 th April 2019
Upper Tribunal Judge Jackson
ANNEX
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/08516/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 3 rd January 2019 |
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Before
UPPER TRIBUNAL JUDGE JACKSON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
Cc
(ANONYMITY DIRECTION MADe)
Respondent
Representation :
For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the Respondent: Ms A Nnamani of Counsel instructed by Samuel Louis Solicitors
DECISION AND REASONS
1. The Secretary of State appeals with permission the decision of First-tier Tribunal Judge Davey promulgated on 5 October 2018, in which CC's appeal against the decision to refuse his human rights claim and make a deportation order pursuant to section 33 of the UK Borders Act 2007 dated 26 July 2017 was allowed. For ease I continue to refer to the parties as they were before the First-tier Tribunal, with CC as the Appellant and the Secretary of State as the Respondent.
2. The Appellant is a national of Nigeria who first entered the United Kingdom with entry clearance as the spouse of a British citizen on 21 May 2005 and following a further grant of leave to remain on the same basis was granted indefinite leave to remain on 23 February 2009. On 4 November 2016, the Appellant was convicted of theft (of computers amounting to approximately £81,000 from Royal Mail with whom the Appellant was employed as a delivery driver) and was sentenced to 2 years' imprisonment. The Appellant did not appeal against his conviction or sentence. The Appellant was served with a notice of intention to make a deportation order on 14 January 2017 and he submitted human rights representations in response on 13 February 2017.
3. The Respondent refused the human rights claim in a decision dated 26 July 2017 and a Deportation Order was made. In summary, the application was refused on the basis that although the Respondent accepted that the Appellant had family life in the United Kingdom with his spouse and three daughters, born in 2006, 2007 and 2010, all of whom are British citizens; it would not be unduly harsh either for the family to relocate to Nigeria with the Appellant, or to remain in the United Kingdom without him. In Nigeria, it was considered that the children would be able to adapt with the assistance of their parents, be able to continue their education in English, and medical treatment was available to one of the Appellant's children who has a speech impediment. If the family were to remain in the United Kingdom, they would remain a family unit with mother and children in support of each other, peers and extended family; as well as being able to continue in their education and maintain a relationship with the Appellant in Nigeria through modern means of communication and visits. Overall, it was not accepted that the Appellant met any of the exceptions to deportation, on the grounds of private or family life and there were no exceptional circumstances to outweigh the strong public interest in deportation.
4. Judge Davey allowed the appeal in a decision promulgated on 5 October 2018 under Article 8 of the European Convention on Human Rights. I return below to the detailed reasons given in the decision, but for present purposes in summary, it was found that it would be in the best interests of the children to remain in the United Kingdom with the Appellant and it would be unduly harsh for them to remain without the Appellant and unduly harsh to relocate to Nigeria with him. The second exception set out in section 117C of the Nationality, Immigration and Asylum Act 2002 applied such that the Appellant's deportation would be a disproportionate interference with his family life.
The appeal
5. The Respondent originally appealed primarily on the basis that the First-tier Tribunal had failed to correctly apply the test of unduly harsh consequences in paragraphs 399(a) and (b) of the Immigration Rules in accordance with the Court of Appeal's decision in MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450 by failing to adopt a holistic appraisal of all the circumstances and failing to attach the requisite weight to the strong public interest in deportation. It was however accepted by Mr Tufan at the oral hearing that this ground was no longer arguable following the Supreme Court's decision in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, however the remainder of the grounds of appeal continued to be relied upon, particularly in terms of the outcome sought. Mr Tufan submitted that it remains the case that even in accordance with KO, the First-tier Tribunal has failed to apply the correct test of undue harshness.
6. The Respondent submits that in relation to the assessment by the First-tier Tribunal of the circumstances of the Appellant's children, the Judge erred in equating the best interests of the children with the effect of the deportation of the Appellant being unduly harsh on them for the purposes of the exceptions set out in the Immigration Rules. The heavy reliance placed on the social work report set out no more than the consequences that one would usually expect from the separation of a parent and child and did not identify any effects that would make either relocation to Nigeria or separation unduly harsh.
7. In relation to the First-tier Tribunal's findings on the practicalities of separation of the family, the Respondent claims that the conclusions are not based on any evidence and would appear to be speculation, as well as contrary to the family managing while the Appellant was in prison. In any event, if changes were required following the Appellant's deportation, they could not amount to unduly harsh conditions. Similar criticisms are made of the findings in paragraph 17 of the First-tier Tribunal's decision as to the families' situation on return to Nigeria, being based on speculation rather than evidence.
8. Further, the First-tier Tribunal has failed to adequately identify and weigh the strong public interest in deportation, focusing only on factors such as rehabilitation and a low risk of reoffending, relevant only to the prevention of crime rather than the wider public interest in deportation and without recognition that this is an automatic deportation case triggered by a serious offence. Mr Tufan also submitted that the First-tier Tribunal had not properly grappled with the OASys report which identifies two previous cautions, one conviction and that the Appellant posed a medium risk of harm to adults, with him displaying controlling behaviour and showing a lack of understanding of others and the consequences of actions.
9. Finally, the Respondent challenges the decision to allow the appeal under Article 8, the context of which seems to have been a straightforward proportionality assessment by the First-tier Tribunal without any reference to the deportation context in this appeal.
10. On behalf of the Appellant, Ms Nnamani submitted that the First-tier Tribunal had made lawful findings on the range of evidence before it, not relying solely on the Independent Social Worker report, but also on the witness statements, the OASys report and evidence in relation to the Appellant's conviction, evidence from friends and family, and letters from the Appellant's children. Further, there was no challenge to the Independent Social Worker's report or its findings by the Respondent in the initial appeal and there is no error in the assessment of the best interests of the children being to remain in the United Kingdom with the Appellant, where they have a stable life and home, contrary to the situation in the real world of a family of five relocating to Nigeria without preparation for a specific plan to establish themselves there.
11. Ms Nnamani accepted that the First-tier Tribunal did not expressly set out the reasons why the consequences of deportation or relocation to Nigeria would be unduly harsh on the family members, but in paragraphs 25 and 26 the consequences of such relocation or separation are considered.
12. Although is accepted that the decision of the First-tier Tribunal was brief, it was submitted that all of the issues had been dealt with, in paragraph 25 there was a recognition of the difference between removal being unduly harsh and unreasonable and a lawful proportionality assessment was made with regard to the public interest, which was outweighed by exceptions deportation having been met and the strength of family life.
Findings and reasons
13. In considering the grounds of appeal, it is necessary to turn in greater detail to the reasons given by First-tier Tribunal in this decision allowing the appeal. The decision itself is relatively brief for an appeal of this nature and refers to much of the evidence by reference rather than setting it out in any detail. In the early parts of the decision, it is found to be in the best interests of the Appellant's children to remain in the United Kingdom with him, by reference to their close parental relationship (save when he was imprisoned) and the importance of that relationship, in the context of settled British national children in the United Kingdom. In paragraphs 16 and 17 of the decision, the Judge refers to families moving to other countries with children, but usually in circumstances where accommodation and employment is already organised, or where there is a reasonable prospect of the same and contrast this to the situation of the Appellant and his family who would be jobseekers without accommodation and the children would have to fit into the educational system available. He concludes at the end of paragraph 17, "Thus it was not said that the family cannot relocate but rather it was not in the children's best interests and unduly harsh to do so.".
14. The second reference to unduly harsh comes in paragraph 19 of the decision in which it is said that this issue needs to be taken into account in terms of the impact of deportation on the children, but the starting point for the Judge is that family life had been established for the purposes of Article 8 and there follows a consideration of the statutory factors in section 117B of the Nationality, Immigration and Asylum Act 2002; recognition that the Appellant has a genuine subsisting parental relationship with three qualifying children and a qualifying partner who is a British citizen; and recognition that the Appellant is a foreign criminal.
15. In paragraph 24 of the decision, the factors in section 117C of the Nationality, Immigration and Asylum Act 2002 are set out, including exception 2 which is said to be the relevant exception which applies to this case. The decision continues as follows:
"25. If the Appellant was not liable to deportation I would have found it would not be reasonable to expect the children to leave the UK (Section 117B(6)). I conclude that unduly harsh is not the same as unreasonable albeit some factors may be common to both. I find the impact of the interference in their education, their development, the social life established by them, their ages and the connections that they have with family and friends in the United Kingdom cannot be understated.
26. Under Section 117C Exception 2, the effect of the deportation would, I find, be harsh and unduly so in terms of its impact on the Appellant's wife who would have to change her way of life to reduce the amount of work she could do for the NHS and need to have recourse to social benefits in order to enable her to make ends meet. It would also put a terrific burden on her in terms of the general care of the children who are themselves adversely affected by the absence of the Appellant. I find in the light of the independent social workers report that the adverse effect on the children's development, given their ages 12, 11 and 7 years, of the absence of their father, who has played such an extensive role in their childhood and development, was unarguable. I conclude that the impact of separation through the removal of the Appellant would be unduly harsh. It would also adversely impact upon four British citizens who have played no part or been responsible for the Appellant's criminality in 2015/2016. I would also fail to recognise his rehabilitation and the limited risk of re-offending. In those circumstances it seems to me that the public interest does not require deportation, given the identified Exception 2. I have already concluded that it would not be the best interests of the children for the Appellant to be separated from the children."
16. The final conclusion in relation to the appeal appears in paragraph 28 as follows:
"F or these reasons therefore, I conclude that not only does the public interest not require it, in the sense contemplated by Exception 2, but also that the impact on the Appellant's family would be disproportionate. In reaching that view, I have taken into account the OASys assessment of the Appellant's criminality and who might be at risk. What is known is that since the Appellant has been out of prison he has not reoffended and not posed a risk to third parties, adult or otherwise and he has properly performed the probation requirements. There is nothing to gainsay his claim that he has rehabilitated himself and was unlikely to reoffend. The point seemed to be an important consideration for the public to be concerned about just as much as whether he might, although I found to the contrary, be a burden on British taxpayers."
17. It can be seen from the passages quoted above, that the First-tier Tribunal has not, with any specificity, set out the test for undue harshness which is applied. Although of course the Judge did not have the benefit of the Supreme Court's decision in KO at the date of the decision, there is in the alternative none of the authority on the meaning of unduly harsh that did exist at that time. The closest the First-tier Tribunal comes to explaining what the test is, is in paragraph 25, which states only that it is not the same as unreasonable for the purposes of section 117B(6) of the Nationality, Immigration and Asylum Act 2002. Although the focus of the Supreme Court in KO was the issue of whether or not wider factors beyond the circumstances of the child should be taken into account in the assessment of whether relocation and/or separation would be unduly harsh for the purposes of section 117C of the Nationality, Immigration and Asylum Act (following consideration of the similar provisions in paragraph 276ADE(1)(iv) of the Immigration Rules and section 117B(6)), Lord Carnworth indicates the meaning of the section in paragraph 23 as follows:
"On the other hand the expression "unduly harsh" seems clearly intended to introduce a higher hurdle than that of "reasonableness" under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word "unduly" implies an element of comparison. It assumes that there is a "due" level of "harshness", that is a level which may be acceptable or justifiable in the relevant context. "Unduly" implies something going beyond that level. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view (and subject to the discussion of the cases in the next section) is a balancing of the relative levels of severity of the parent's offence, other than is inherent in the distinction drawn by the section itself by reference to length of sentence. Nor (contrary to the view of the Court of Appeal in IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932, [2017] 1 WLR 240, paras 55, 64) can it be equated with the requirement to show "very compelling reasons". That would be in effect to replicate the additional test applied by section 117C(6) with respect to sentences of four years or more."
18. In the Supreme Court consideration of the specific appeal in KO, further reference is made to the authoritative guidance on the meaning of unduly harsh given in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC), which stated in paragraph 46:
"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 more severe, or bleak. It is the antithesis of pleasant and comfortable. Furthermore, the addition of the adverb 'unduly' raises an already elevated standard still higher."
19. In the First-tier Tribunal's decision under appeal in the present case, it can be seen from the passages set out above that not only was the test of unduly harsh not specifically set out, but it was not in any event applied. Counsel for the Appellant accepted that there were no express reasons as to why either scenario (remaining in the United Kingdom without the Appellant or relocating to Nigeria) would be unduly harsh on either the Appellant's wife or any of their three children. The consideration of possible practical consequences of deportation fall far short of giving adequate reasons for finding that Exception 2 in Section 117C of the Nationality, Immigration and Asylum Act 2002 applies. Further, the matters referred to, primarily in the context of the best interests assessment, including in particular the Independent Social Worker's report, do not identify anything other than the usual consequences on a family of deportation of one of the parents and fall far short of identifying any matters which could amount to either scenario being 'unduly harsh'.
20. For these reasons, I find that the First-tier Tribunal materially erred in law, in essence applying the wrong test in law by equating the best interests of the children with satisfaction for Exception 2 in section 117C of the Nationality, Immigration and Asylum Act of relocation or separation being unduly harsh on the children; and also in failing to give adequate reasons for the finding in any event. It is necessary to set aside the decision of the First-tier Tribunal for this reason alone and for the appeal to be remade. The findings in relation to the best interests of the children are preserved and the remaking of the appeal reserved to the Upper Tribunal given that only limited further finding of facts by way possible updating to the family situation is required.
21. As to the other grounds of appeal from the Respondent, there is force in the submission that the First-tier Tribunal speculated as to the possible situation of the family remaining in the United Kingdom without the Appellant and their circumstances on relocation to Nigeria, without any evidential basis being identified for the findings in particular in paragraphs 17 and 26 of the decision. This is a further error of law, although it is in any event very closely connected with the error identified above as to the correct approach to the assessment of unduly harsh and would be required to be reconsidered with fresh findings made when the appeal is remade.
22. Finally, the First-tier Tribunal's findings in relation to the public interest in deportation and the overall assessment under Article 8 are infected by the error errors of law already identified. However, the public interest in deportation is only likely to become material if it is necessary for a Tribunal to consider whether there are very compelling circumstances over and above the exceptions to outweigh the public interest in deportation, i.e. if it is found that none of the exceptions apply.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it is necessary to set aside the decision.
I set aside the decision of the First-tier Tribunal.
The appeal is to be relisted before UTJ Jackson on 14 February 2019 with a time estimate of two hours for the re-making of the appeal. Any further evidence to be relied upon by the Appellant must be filed and served no later than 14 days prior to that hearing, i.e. by 4pm on 31 January 2019.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Signed Date 23 rd January 2019
Upper Tribunal Judge Jackson