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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-000885
	First-tier Tribunal No: HU /60375/2022 LH/05774/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 14 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE MAHMOOD

 

Between

 

Samuel Frimpong

(NO ANONYMITY ORDER MADE)

Appellant

and

 

Entry Clearance Officer

Respondent

Representation :

For the Appellant: Mr M Allison of Counsel, instructed by Wesley Gryk Solicitors

For the Respondent: Mr E Terrell, a Senior Office Presenting Officer

 

Heard at Field House on 20 November 2024

 

DECISION AND REASONS

1.              The Appellant is a national of Ghana. He had appealed against the Respondent's decision dated 22 November 2022 refusing to revoke a deportation order made against him on 19 May 2008 and whereby he had then been deported from the United Kingdom on 29 April 2013. The Appellant had been given a 4-month sentence of imprisonment for using a false instrument.

2.              The Appellant's appeal against the Respondent's decision had been refused by First-tier Tribunal Judge Row, by way of a decision dated 3 February 2024. The Appellant had been granted permission to appeal. At an Error of Law Hearing on 7 August 2024, a panel of the Upper Tribunal concluded that the decision of the First-tier Tribunal contained a material error of law.

3.              The matter was then listed for a remaking hearing. The Appellant's solicitors had sought an adjournment in respect of the initial hearing which was reluctantly granted to enable there to be compliance with the directions ordered. The matter then came for hearing thereafter with both parties represented.

The Issue in Outline

4.              The issue is whether the Respondent's refusal to revoke the deportation order made against the Appellant amounts to an unjustifiable interference with the Article 8 of The European Convention on Human Rights of the Appellant, his partner and his two children. The Appellant thereby contends that the continuation of the deportation order interferes with his Article 8 ECHR family life. The Appellant's family and two children live in the United Kingdom.

The Hearing Before Me

5.              The Appellant's bundle, comprising 151 pages, included a witness statement from the Appellant, but also two witness statement from his wife. The Appellant's wife also provided oral evidence at the hearing before me.

6.              I shall not rehearse all of the evidence, but in summary the Appellant's wife stated that she lives in the United Kingdom with her two sons. The Appellant is their father. One of the children is now aged 15 and the other is aged 11. One of the children is British and the other has a routine application to make for registration as a British citizenship. The Appellant's wife is entitled to live in the UK as a parent.

7.              There is detailed reference to the impact of the Appellant's deportation on both the Appellant's wife, but on the two children in particular. This included the immediate aftereffects of the deportation including being evicted from their original home and having to move schools. The children are somewhat socially isolated without their father and find it difficult to understand why their father is not with them and they find it difficult to explain to others at school and the like where their father is. It is said that they 'keep begging their father to come to England and always pray for his safe return to have his attention, support and affection'. The Appellant's wife states that the Appellant's absence has had a profound impact on the family which she struggles to explain in words. The Appellant's wife also explained that she cannot obtain full time work due to childcare duties and so she works part time with an agency. Various evidence of parcels and of social media messages and calls were exhibited within the Appellant's bundle.

8.              In her oral evidence the Appellant's wife said that the Appellant was very sorry and remorseful every day for what he had done. The 11 years apart had had a huge impact on the family. She had not been able to visit Ghana and nor had her children because despite living in difficult accommodation in the UK, there is little in the way of funds available to undertake any international travel.

9.              The Appellant's wife said she essentially raised the children herself with the Appellant's contribution. She and the children regularly attend church. The children have their school and their network of friends and community around them. She said she had raised them but 'not very well' as she needed their father. She said she has a brother in the UK and he is male person around them and he speaks to them over the telephone and gives the children advice. He lives quite far from the family home.

10.          The Appellant's wife said that the Appellant works as a Pastor. He had one or two papers left to complete before being qualified as an accountant but he was deported before he completed those papers.

11.          The Appellant's wife explained the very serious difficulties in being able to relocate to Ghana, particularly for the children. They would only all be able to afford to live in one room for all of them. They would not be able to afford the rent for anything else.

12.          In closing submissions, Mr Terrell said that he agreed it was too late now for him to seek to introduce that the offence that the Appellant was convicted of 'caused serious harm' and in any event the sentencing remarks had not provided to me. He said both parties agreed that s117C Nationality Immigration Act 2002 did not apply because the Appellant is not a foreign criminal. The Appellant was liable to deportation pursuant to the Immigration Act 1971.

13.          Mr Allison made submissions in respect of the legal position and also said that the Appellant's wife's witness statement had explained how incredibly difficult it had been to raise the children in the absence of the Appellant. The maintenance of deportation for the rest of the children's lives would be a very serious interference with their family lives and with their best interests. This ought to be afforded significant weight. The fact that continued deportation maintains the status quo was not the point. In respect of the Appellant's wife and children going to Ghana, the evidence was provided that the costs were prohibitive.

 

 

The Law

14.          I was provided with a skeleton argument dated 11 November 2024 on behalf of the Appellant and a skeleton argument dated 19 November 2024 on behalf of the Respondent. The skeleton arguments were useful, but it was necessary to distil the arguments further at the hearing. After the hearing, I was provided with a helpful agreed note of the law from the parties. This was necessary because of the changes in the Immigration Rules and the case law since the Appellant's deportation from the UK over 11 years ago.

15.          The parties agreed note states:

1.        "Section 117C does not apply in these circumstances because the evidence does not justify a finding that the Appellant's offence caused serious harm and so he is not a foreign criminal for the purposes of s117D.

2.        [The] Appellant is liable to deportation by virtue of s3(6) of the Immigration Act 1971

3.        The relevant immigration rules at the time of the decision included paragraph 396:

 

Where a person is liable to deportation the presumption shall be that the public interest requires deportation.

 

4.        That is the correct starting point. Beyond that, the Tribunal must consider the weight to be afforded to the public interest and weigh that against the relative strength of the Appellant's family life... "

16.          In HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, [2022] 1 WLR 3784 Lord Hamblen, with whom the other members of the Supreme Court agreed, referred to the unduly harsh test and also to the balancing exercise. The parties agree that the unduly harsh test does not apply, but that I should undertake the proportionality exercise with this judgment in mind. It is worth setting out the whole of paragraph 51 in view in view of its importance in this case,

"51.  When considering whether there are very compelling circumstances over and above Exceptions 1 and 2, all the relevant circumstances of the case will be considered and weighed against the very strong public interest in deportation. As explained by Lord Reed JSC i n  Hesham Ali  at paras 24-35, relevant factors will include those identified by the European Court of Human Rights ("ECtHR") as being relevant to the  article 8  proportionality assessment. In  Unuane v United Kingdom (2020) 72 EHRR 24  the ECtHR, having referred to its earlier decisions in  Boultif v Switzerland (2001) 33 EHRR 50  and  Uner v The Netherlands (2006) 45 EHRR 14  , summarised the relevant factors at paras 72-73 as comprising the following:

"• the nature and seriousness of the offence committed by the applicant;

• the length of the applicant's stay in the country from which he or she is to be expelled;

• the time elapsed since the offence was committed and the applicant's conduct during that period;

• the nationalities of the various persons concerned;

• the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life;

• whether the spouse knew about the offence at the time when he or she entered into a family relationship;

• whether there are children of the marriage, and if so, their age; and

• the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled ...

• the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and

• the solidity of social, cultural and family ties with the host country and with the country of destination."

17.          In William Gadinala v Secretary of State for the Home Department [2024] EWCA Civ 1410 Whipple LJ, with whom Singh and Newey LJJs agreed, referred to Zulfiqar v Secretary of State for the Home Department [2022] EWCA Civ 492 and said,

"45.  It is common ground that the various elements of the public interest in deporting foreign criminals can be summarised in the following way, drawing on  Zulfiqar v Secretary of State for the Home Department [2022] EWCA Civ 492; [2022] 1 WLR 3339  (per Underhill LJ, paras [38]-[44] in particular):

•          i )  to avert the risk of re-offending;

•          ii)  to deter foreign criminals from committing serious crimes; and

•          iii)  to maintain public confidence in the system."

18.          Primary responsibility for the public interest is indeed, as submitted by Mr Terrell, with the Secretary of State because her view is likely to be wider and better informed than that of the Upper Tribunal and I must give weight to the Secretary of State's assessment. The use by the Appellant of false documents fundamentally undermines immigration control.

19.          It is for the Appellant to rebut the presumption that the public interest requires deportation, even though section 117C NIAA 2022 does not apply. In Wilson (NIAA Part 5A: deportation decisions) [2020] UKUT 350 (IAC) it was made clear that,

"74. ...The fact that, on the finding of the judge,  section 117C   would not apply does not mean that the claimant would be bound to succeed. Paragraph 396 of the Immigration Rules says:-

 

"Where a person is liable to deportation the presumption shall be that the public interest requires deportation."

20.          The Supreme Court in CAO v Secretary of State for the Home Department (Northern Ireland) [2024] UKSC 32. [2024] 3 WLR 847, the children's best interests must be treated as a primary consideration.

21.          It is relevant that there are British children in this case, at least one. SD (British citizen children-entry clearance) Sri Lanka [2020] UKUT 43 (IAC) the judicial headnote makes clear that,

"4.   In assessing whether refusal to grant a parent entry clearance to join a partner has unjustifiably harsh consequences, the fact that such a parent has a child living with him or her who has British citizenship is a relevant factor. However, the weight to be accorded to such a factor will depend heavily on the particular circumstances and is not necessarily a powerful factor."

22.          The factors which weigh heavily against the Appellant include that the public interest clearly requires that the maintenance of deportation has the legitimate aim of ensuring that those who commit criminal offences are dealt with to avert the risk of re-offending, to deter foreign criminals from committing serious offences and to maintain public confidence in the system. There is presumption in favour of deportation.

23.          Also weighing heavily against the Appellant is that he committed an offence of using a false instrument with a view to circumventing the rules in respect of leave to remain. In my judgment, any sentence of imprisonment is a serious matter and the fact that the sentence was 4 months and thereby less than 12 months is not of itself a mitigating factor. The dishonesty by the Appellant was serious. I note that the Appellant had initially been successful in being granted permission to appeal against the decision of the First-tier Tribunal when he was still in the United Kingdom, but then appears to have gone to ground and was thereby listed as 'absconder' by the Respondent. This too weighs heavily against the Appellant. The public interest is a very weighty factor which requires significant matters to be overcome it.

24.          I take the following matters into account in favour of the Appellant. The offence was in 2008. That is over 16 years ago. There has been no recorded offending against the Appellant since then. The probation and similar reports refer to there being a low risk of further offences being committed by the Appellant. The Appellant was deported in 2013 and so he has been out of the country for some 11 years. The Appellant works as a pastor. He has apologies profusely for his offending and behaviour. He has sought to make amends by practising and assisting others in his religion. I accept that evidence as it is demonstrated by real facts.

25.          The Appellant's children, one British and the other who will almost certainly be registered as British shortly (in view of him having lived for more than 10 years in the UK) require me to consider their best interests as a primary consideration. The children have spent all of their lives in the UK, they have strong family and social lives with their friends, uncle, community and schools here in the UK. The children have been left somewhat isolated and affected by not having their father here in the UK with them. They have limited access to finance. Their mother is not able to work full time as she looks after them, but she does the best she can by being a carer for them and works part time too.

26.          The social media and other messages in the bundle show me the extent to which they miss their father and struggle immensely without him. The commitment to children by the father is manifest. The sleepless nights over years, the difficulties in seeking housing, and the number of school moves have added to the children's trauma. The children have no real link to Ghana in terms of having to live or visit there. Their link is indirect as their parents have Ghanian nationality.

27.          I conclude it is not possible for the Appellant's family to visit him in Ghana, let alone for them to live there. That is because finances make it impossible. I accept the clear evidence that the Appellant's wife has extremely limited resources to make ends meet in the UK and it is not possible to find funds for travel to Ghana. Not even for a visit. Even if somehow the family could find such funds, such family life in the form of a visit is wholly insufficient when balancing the children's best interests as a primary consideration, even with the need to have the public interest and presumption of deportation in mind.

28.          The Supreme Court's decision in Agyarko v Secretary of State for the Home Department [2017] UKSC 11 requires consideration of insurmountable obstacles. The parties indicated this was not necessary to consider that in this case, but even if it is, whilst this is not a case of removal or of entry clearance because I am dealing with an appeal against a decision refusing an application to revoke the deportation.

29.          Nonetheless, it is clear to me that these children having to leave their lives in the UK, their schools, and their friends to live in a one room home in poor conditions in Ghana are insurmountable obstacles. Their church means much to them and they are an important part of it. These are not just matters of difficulty or harshness in this particular case in view of the strong evidence. Modern means of communication have been tried in this case and have failed, as shown by the depressive lives being lived by the children and their mother here in the UK. Additionally in light of the depressive life being lived by the Appellant in Ghana.

30.          At the time the deportation order was made against the Appellant in 2008, neither of the children were born. This is a very important aspect of this case on its particular facts. There is a genuine subsisting relationship between the Appellant and his wife and between the Appellant and his two children. Whilst those relationships have endured, I do not accept the Respondent's submissions that thereby the status quo ought to continue.

31.          Ultimately, in this case the probation report made clear that there is no risk of harm to others. The index offence was over 10 years ago. That is not of itself a presumption that there be revocation of the deportation order. In my judgment however, the two factors of no risk harm to others and over 10 years having elapsed since the offence are strong factors in this case.

32.          I conclude that despite the very heavy weight to be afforded to the public interest and the presumption of deportation, in the particular circumstances of this case, he Respondent's refusal to revoke the deportation order made against the Appellant amounts to an unjustifiable interference with the Article 8 rights of the Appellant, his partner and his two children.

33.          It will now be for the Appellant to make an application for entry clearance, if so advised.

Notice of Decision

The decision of the First-tier Tribunal contained a material error of law and was set aside.

I remake the decision.

The Appellant's appeal against the Respondent's refusal to revoke the deportation is allowed on Human Rights grounds.

I do not make an anonymity order when taking into account the principles of open justice.

 

Abid Mahmood

 

Upper Tribunal Judge Mahmood

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

30 January 2025