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

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003667
	First-tier Tribunal No: HU /00013/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 26 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RASTOGI

DEPUTY UPPER TRIBUNAL JUDGE L.C. CONNAL

 

Between

 

Igor Murzac

(NO ANONYMITY ORDER MADE)

Appellant

and

 

The Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Ms A. Radford, Counsel instructed by Lex Sterling Solicitors

For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

 

Heard at Field House on 11 December 2024

 

­

DECISION AND REASONS

 

1.              By way of a decision dated 29 October 2024, Upper Tribunal Judge Rastogi found an error of law in the decision of First-tier Tribunal Judge Loke dated 25 June 2024 in which she had dismissed the appellant's appeal against the refusal of his human rights claim. Judge Loke's decision was set aside with some preserved finding, to be re-made in the Upper Tribunal. We append the error of law decision as it sets out useful background to the appeal and a summary of relevant authorities on the issue of what is in a child's best interests.

2.              The re-making came before us. We were provided with a composite bundle containing the evidence before the First-tier Tribunal and the updating evidence admitted under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. That evidence included an updating report from the Independent Social Worker ("ISW"). We heard evidence from both the appellant and his wife both of whom had the benefit of a Romanian speaking interpreter. The appellant attended the hearing in person but his wife was unable to do so as their youngest child was unwell so we made arrangements for her to give evidence over CVP. We heard submissions from both representatives and at the end of the hearing we reserved our decision.

Background

 

3.              The appellant is a 44 year old citizen of Romania and Moldova, but who lived in Moldova and who says he arrived in the United Kingdom in 2018 with his wife and (then) two children. His children are DM who is now 15 years old, AM who is now 10 years old but was 9 years old at the date of the hearing, and a younger child DAM, born in the United Kingdom, who is now 1 year old. On 7 January 2020, the appellant was granted limited leave to remain in the UK under the EU Settlement Scheme, valid until 8 January 2025.

 

4.              On 14 February 2022 the appellant was convicted of theft and going equipped and sentenced to 14 weeks imprisonment. He was warned about the risk that if he continued to offend he could be deported. However, on 12 July 2023 he was convicted of possessing or controlling articles relating to fraud and he was sentenced to 16 months' imprisonment (he was also convicted of theft from a meter or automatic machine and sentenced to six months' imprisonment concurrently). On 20 September 2023 a deportation notice was served and on 2 October 2023 the appellant made representations in relation to his human rights. The respondent made a deportation order against the appellant on 12 December 2023 and refused the appellant's human rights claim.

 

5.              The error of law was in relation to Judge Loke's assessment of what was in the children's best interests which then infected her finding that it was not unduly harsh upon them to leave the United Kingdom with their parents ("the leave scenario"). It was agreed that Judge Loke's finding that it was unduly harsh upon the appellant's family to stay in the UK without the appellant ("the stay scenario") was to be preserved.

 

6.              It follows that the issues for us to determine afresh are what are in the children's best interests and whether or not the leave scenario is unduly harsh upon the appellant's wife and/or DAM (the only qualifying family members, as confirmed by Mrs Radford at the outset of the hearing) or otherwise whether there are very compelling circumstances pursuant to section 117C of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act") rendering the respondent's decision disproportionate.

 

The Legal Framework

 

7.              It is for the appellant to satisfy us of any facts on which he relies on the balance of probabilities and that Article 8(1) of the European Convention of Human Rights ("ECHR") is engaged. If so, it is for the respondent to justify her decision.

 

8.              We refer to the error of law decision [20]-[22] and [25]-[26] for a summary of some of the leading authority on children's best interests.

 

9.              This appeal is set against the context of a deportation decision. The Appellant is a "foreign criminal" as defined in section 117D of the 2002 Act, which means that section 117C of the 2002 Act applies. Section 117C says:

 

"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."

 

10.          When considering the proportionality assessment, section 117B (1)-(5) of the 2002 Act is also relevant.

 

11.          The leading authority now on the section 117C principles is HA (Iraq) which at [41] confirmed the test for unduly harsh as being that set out in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 as:

 

"'unduly harsh" does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. 'Harsh' in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb "unduly" raises an already elevated standard still higher."

 

12.          At [42] Lord Reed also observed that the unduly harsh test is "not as high as that set by the 'very compelling circumstances' test in section 117C(6)".

 

13.          At [43] Lord Reed said:

 

"Having given that self-direction, and recognised that it involves an appropriately elevated standard, it is for the tribunal to make an informed assessment of the effect of deportation on the qualifying child or partner and to make an evaluative judgment as to whether that elevated standard has been met on the facts and circumstances of the case before it."

 

14.          As for the 'very compelling circumstances' test, having reviewed the relevant authorities, Lord Reed said at [51]-[52]:

 

"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 in Hesham Ali at paras 24 to 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 (2021) 72 EHRR 24 the ECtHR, having referred to its earlier decisions in Boultif v Switzerland (2001) 33 EHRR 50 and Ãœner 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."

 

52. The weight to be given to the relevant factors falls within the margin of appreciation of the national authorities....".

 

 

Discussion of the Evidence

 

15.          The appellant and his wife gave updating evidence at the hearing. The appellant said that they have not made a decision about where they would go if they had to leave the UK. In reality, their choices would be Romania or Moldova. It is not in dispute that both the parents plus the two eldest children have citizenship of both countries (as confirmed by the Appellant in his oral evidence) and DAM could acquire Romanian citizenship. The appellant was not challenged about his evidence that he no longer has any family in Moldova nor a home as they sold it to come to the UK. Neither was there a challenge to his evidence that whilst they have family in Romania, neither he nor his wife or, therefore, the children have ever lived in Romania.

 

16.          Both the appellant and his wife were asked about the situation of (mainly) the two elder children. It surprised us that the appellant was not able to answer accurately or in any detail questions about DM's education. His evidence was of course supplemented by his wife's and evidence in the report of the ISW on the issue of education and we return to that below.

 

17.          In so far as the language used at home, there was a degree of consistency in their evidence in that both the appellant and his wife said they spoke to the children mainly in Romanian. The appellant accepted he and his wife only have conversational English. However, that did not sit happily with their evidence that the eldest two children are losing their fluency in and knowledge of their mother tongue, although we accept their evidence that otherwise the children spoke in English. Even if the eldest children are not as fluent as they once were in Romanian, we find that the fact they speak mainly to their parents in Romanian mean they would regain their fluency if they were to return there (or to Moldova). As for DAM, he has so far grown up exposed to both English and Romanian language so we find he would be able to adapt to the language of either country on return or the UK were he to stay here.

 

18.          There was no real challenge to the evidence about the lives the children lead in the UK. We have considered the evidence in the bundle about DM's life in the UK, contained within his witness statement (HB65) and in the report of the ISW (HB455) and we are satisfied that DM now has a support network wider than his nuclear family.

 

19.          The other striking factor of the appellant's evidence and the way in which the case was presented is that, notwithstanding the basis of the challenge to Judge Loke's decision and the error of law decision, there was very little emphasis in the evidence before us about the impact upon the children of leaving the UK.

 

20.          It was accepted at the hearing that there is no background evidence in the bundle to support Ms Radford's submission that educational facilities in Romania were inferior to the UK and this is not a matter about which we feel able to take judicial notice.

 

21.          There is nevertheless evidence in the bundle (on which the respondent relied at the hearing before the First-tier Tribunal) about the provision of social security and health care provisions in Romania [HB305-360]. We are satisfied, based on this evidence, that there is unlikely to be a risk of harm through destitution there or a risk that any medical needs the children may have will not be met. The respondent also provided some background material about Moldova which says it is "one of the poorest countries in Europe" and that two-thirds of the country are of Romanian descent.

 

22.          Neither the appellant nor his wife in their written or oral evidence spoke in any detail about the impact upon the children of having to leave.

 

23.          Nevertheless, both of the elder children provided a witness statement although neither attended to give evidence. It is perhaps surprising that, given Judge Loke had found the stay scenario to be unduly harsh on the family and that was not the subject of challenge, both of the children's witness statements focused more on the impact of losing the appellant rather than the impact of leaving the UK. Where they did speak of the latter however, DM spoke about his life here in education; his friends; his engagement in sporting activities and his hopes to enrol at university to become a sports coach [HB65-66]. AM said at paragraph 13 "my friends from school, art lessons and gymnastics are very important to me and I do not want to be forced to go to different country and leave my dearest friends behind" [HB64]. There is evidence in the bundle to confirm that both elder children and their mother have settled status here [HB85-99]. There is some evidence from both schools including school reports which show that generally both the elder children are attending regularly and performing well [HB139-144].

 

24.          Additionally, both the elder children spoke to the ISW in order to express their wishes and feelings and she carried out a professional assessment of the impact of the leave scenario upon them. It is to that we now turn.

 

25.          The report was prepared by Charlotte Opie-Greer and the updated report is dated 29 November 2024. There was no challenge to the ISW's expertise as a social worker with relevant experience [HB450] and she is patently qualified to give evidence as to the best interests of the appellant's children and the impact upon them of leaving the UK. The challenge made of her report at the hearing was to content, or the lack thereof, on that issue. Mr Tufan made reference to certain sections of section 7 of the report and we discuss those and other relevant sections below. Our primary criticism of the report, which is now in its in third iteration, is the lack of obvious sign-posting as to which parts contain updating evidence. Otherwise the report was relatively detailed based on two interviews with the family.

 

26.          As to the content of the report, we of course had particular regard to section 7 which is where the ISW deals with the impact upon each child if they were to leave the UK. The ISW sets out the content of her conversation with both of the eldest children. It was notable that they still appeared preoccupied with the idea of being separated from the appellant. The ISW clearly picked up on this when she said "[AM and DM] were unable to fully grasp the prospect of relocating with their father ...". She then continues to assess for herself the impact of that upon them, referring to the fact they both seem settled here at school and in their community with support networks around them and significant relationships outside of their family unit. She noted they have spent their formative years here and "have no knowledge of any other way of life or culture" [HB465].

 

27.          We pause here to question this latter comment. We accept that assertion is true for DAM and may well be true of AM if you substitute the word 'memory' for knowledge, but we do not accept that is true of DM. He did not move here till he was 9 so spent over half his life in Moldova and is likely still to remember that life.

 

28.          Even with this observation we accept the ISW's evidence that the eldest two children have effectively adopted the social norms of their peers and are entrenched in an English way of life. She continued "any change in their current circumstances would mean a total change in their social fabric, a change in curriculum, language and way of life, something that would cause them distress and affect their ability to meet their full potential". The ISW purported to justify this conclusion with reference to research [HB466] although we note this was in the context of refugees returning to their country of origins, which is a different factual matrix to the appeal before us. Furthermore, it is not clear whether that research was in the context of children or adults.

 

29.          At the conclusion in section 9 the ISW says:

 

"From the information provided to me by the family, it would appear that Mr Murzac has a close and loving familial bond with his children. Given what has been reported to me, it is my view that to uproot any members of these children's family unit would impact negatively on them and their developing confidence, identity, stability and emotional wellbeing and could prevent them from reaching their full potential (Devany et al. 2019). Research completed by Munford M and Sanders J (2014) evidences that there is a need for children to be able to seek and maintain secure connections with key people in their lives. The research goes onto highlight that any long-term disruption to this can profoundly disadvantage children and young people, with the detrimental effects of this continuing into later life.

 

The whole family have expressed a wish to be together in the UK. Given the bonds and attachments I have observed and assessed, I would support their wish. Currently Mr Murzac is providing the family with the necessary routine, stability, encouragement and support for their children to thrive."

 

30.          As to the children's best interests she says this:

 

"Given what I have observed and been informed, it is my assessment that it is in the best interests of [the three children] that their father be permitted to remain in the UK.

 

As well as those already mentioned a number of other documents and acts advocate the risks to children and young people's welfare to be minimised and that the prevention of harm to their development, emotional and physical wellbeing is paramount. These include the 2004 Children Act, Working Together to Safeguard Children (2015) and Every Child Matters Change for Children (2009).

 

In accordance with the United Nations (UN) Convention on the rights of the child the best interests of the child should be the primary consideration. I have outlined the best interests of [the three children] and it is my assessment that the family should be permitted to reside together in the UK. To disrupt this family would be detrimental to [the three children's] health and wellbeing."

 

31.          In light of the observations and criticisms we have made of the report above, we find the weight to attach to it needs to be reduced. We still attach significant weight to the parts of the report talking about what is in the children's best interests but less weight to the parts about the impact upon them of leaving the UK as it is that assessment which is infected by the criticism we have made of the report.

 

32.          Finally we turn to the evidence about the family's ability to support itself. The ISW notes that the appellant is not permitted to work and, before commencing her maternity leave, his wife worked and supported the family financially while he looked after the children. That is the situation to which they plan to return once her maternity leave ends. Nevertheless, the ISW noted that money for the family is tight so they have applied for benefits to support them (and the Appellant confirmed in his oral evidence that they receive universal credit).

 

33.          The appellant's tax returns show self-employed profit of £1401 from a delivery business for the tax year to 5 April 2021; none for the tax year ending April 2022, and £12,126 from a removal business for the year ending April 2023. There is no updating evidence about the appellant's income. The appellant's wife earned in the region of £18-20,000 for the years ending April 2020-2023.

 

34.          Whilst the evidence does not cover the date of the hearing, given that the appellant's wife remains on maternity leave, it is not likely that this family are earning much presently and even before, their income was on the low side given they are a family of five.

 

35.          In oral evidence the appellant's wife confirmed her fears about returning to Moldova in light of its proximity to Ukraine and the war there. She also feared they would be unable to secure a good enough salary in Moldova to support the family, compounded by the fact they no longer have a house there. In oral submissions, Ms Radford referred to the proximity of their home area in Moldova to the Ukrainian border.

 

36.          The appellant did not provide any supporting evidence as to any difficulties he and his wife may have in obtaining employment in either Romania or Moldova. As citizens of both countries and as there is no claim that either of them suffer from any health conditions, there is no obvious barrier to them working. Accordingly, the appellant has failed to satisfy us that they would be unable to support themselves and the children in either country of return notwithstanding that in neither do they currently have accommodation.

 

The Best Interests of the Appellant's children

 

37.          Taking into account the evidence with which we have been provided and returning to the legal framework set out in the error of law decision, we make the following findings about what is in the children's best interests. We deal with each child separately as each of their situations are different. We remind ourselves of what the evidence tells us (or does not tell us) about the situation on return in Romania or Moldova.

38.          DM has settled status (ILR) in the UK. He is 15 years old and is in Year 10. He has started his GSCE curriculum. He has been in the UK since the age of nine but would retain some memory of life in Moldova but none of Romania as he has never lived there. At the point he came here his life and education would have been disrupted. He is now in his mid-teens. These are truly formative years where a child begins to shift their ties and support network from the family to external relationships and we have found that to be the case for DM. Coupled with that is the important stage DM's education has reached. He may not be sitting his GCSEs this academic year but he has started the syllabus. There is no evidence as to the provision of education in either Moldova or Romania, and certainly none that expressly points to education in either country being inferior. However, based on the report at [21] above we find education in Moldova is likely to be affected by Moldova's economic status. DM is clearly happy here and enjoys a life enriched by extra-curricular activities and friends and he is achieving well considering there would have been a period of adjustment when he first arrived. In these circumstances and having regard to what the ISW has said about the children's best interests, we find DM's best interests to be met, firstly by remaining with both his parents and siblings and secondly by doing so in the UK so as to minimise the risk of disruption to his education and his emotional development.

 

39.          AM has settled status (ILR) in the UK. She has recently turned 10 years old and is still at primary school. The primary basis for the preserved finding that it was unduly harsh for the appellant's family to live in the UK without him was AM's relationship with her father with whom she has a close attachment. AM presented to the ISW as somewhat emotional about the idea of having to leave the UK and she clearly would rather not think about it. We accept she would not really remember life in Moldova and has no knowledge of life in Romania. We are satisfied this means that for her it would feel as if she was returning a stranger although like DM she will have linguistic links to both countries. Whilst AM has not yet reached her formative teenage years, it is only in the UK that she has experience of life away from her parents, through school, and this means she is growing up with the social norms of the UK. She presents as an otherwise happy child who is doing well at school and has many activities which she enjoys. She is not at such a critical stage of her education as DM and has time to adjust to a new educational system before she reaches that stage. We find that her best interests are served by remaining in the care of both her parents. Whilst ideally her best interests are also served by remaining in the UK to maintain stability of education and social connections, this is secondary to the importance of remaining in the care of both her parents.

 

40.          DAM is a British citizen. It is accepted he is capable of acquiring Romanian citizenship and that dual citizenship is permitted. It was not argued that DAM could not obtain Moldavian citizenship. At the age of one, he is fully dependent on his parents to meet his needs and remaining in their care is obviously where his best interests lie. The question is whether those best interests also require him to remain in the UK. We remind ourselves that citizenship is not a trump card ( ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4) and we find that to be especially so when other citizenships are available to him. However, we also have regard to the fact that if he leaves now, DAM is unlikely to be able to return in his family unit as his father will be barred from returning for 10 years following the deportation. That means he would lose the benefits of British citizenship for much of his childhood and if he were to return he would be doing so as someone who does not present as having grown up with the social mores in existence here. As to the comparative benefits of citizenship in Moldova and Romania, we return to our findings at [21],above. Whilst the evidence falls short of justifying a conclusion that there will be a significant difference in the benefits of citizenship in either country we accept that there is likely to be more of a disparity between the UK and Moldova than Romania where there is positive evidence of the protection of social welfare. While this is a marginal decision, we are persuaded that DAM's best interests also include him remaining in the UK where he can assert his citizenship in order that he has the benefit of growing up in and belonging to that community so as not to lose the benefit of it potentially throughout his life even if he chose to return as an older child or an adult. However, as with AM this is secondary to the need to remain in the care of both his parents.

 

Application of the Law

 

41.          Returning to the legal framework, the appellant does not claim to fall within Exception 1 of section 117C on the grounds of his private life.

 

42.          The preserved findings mean that the 'stay scenario' within Exception 2 is unduly harsh. In other words, this is not a case where the appellant can be deported and the family remain in the UK without it being considered unduly harsh. It is the 'leave scenario' which is under consideration.

 

43.          As Ms Radford identified at the hearing, this is the more unusual of the two scenarios to be the focus of dispute and that is reflected by the fact that much of the jurisprudence considering the deportation regime is concerned with the 'stay scenario' and often the unduly harsh provisions arising from that scenario.

 

44.          The appellant claims the 'leave scenario' is unjustly harsh on his family. As mentioned at [6] above, it is only his wife and DAM who are qualifying relatives for the purposes of Exception 2.. This is not changed by the fact that both DM and AM have settled status in the UK. Therefore, if the appellant is unable to show that Exception 2 applies, he relies on the very compelling circumstance test in section 117C(6).

 

45.          We remind ourselves of the high threshold set by the unduly harsh test contained within section 117C(5). In her oral submissions, Ms Radford reminded us of the jurisprudence on the importance of citizenship as summarised at para. 6 of the grounds of appeal and within the error of law decision. She also relied upon the content of the ISW report as to the importance of stability in a child's life.

 

46.          We do not find that returning to either Moldova or Romania would be unduly harsh on the appellant's wife. We have had regard to her subjective fears of returning and have no doubt that all things being equal she would prefer to stay in the UK with her family where she is entitled to reside. However, the threshold of unduly harsh is a high one and the evidence on which the appellant relies has fallen short of satisfying us that it is met. In arriving at that decision we have had regard to the fact that the appellant's wife is a citizen of both countries; she lived in Moldova till relocating to the UK and if they returned there they could do so away from the border area; she has family in Romania and speaks the language of both countries. We have also taken into account our findings about the parents' ability to work in either country and to support their family (see [36] above).

 

47.          We also do not find it would be unduly harsh upon DAM to relocate to either country with his parents notwithstanding what we have found to be in his best interests. In arriving at this decision we have reminded ourself of the elevated threshold intrinsic in the unduly harsh test. DAM is very young and remains entirely dependent upon his parents. Whilst the appellant's deportation means that if the family relocate, the real world situation is that DAM may not be able to return due to the ten year ban, that will not deprive him of his British citizenship. We have considered whether the loss of the opportunity to grow up with the social norms of British life could be considered unduly harsh. However, he will have the benefit of growing up with the social norms of either Romania or Moldova depending where his parents decide to relocate and, if that is Moldova, it reflects the heritage of his parents with whom he would be living. He still has the option of asserting his British citizenship later in his life should that be his wish. As he is still so young, none of the other potential consequences of relocating, such as disruption to his education or emotional welfare, apply. Applying our findings about language (see [17] above), neither is this a factor rendering relocation unduly harsh upon DAM.

 

48.          It follows that we do not find the appellant able to benefit from Exception 2 of section 117C of the 2002 Act.

 

49.          Turning to the test set out in section 117C(6), we remind ourselves that the wording requires there to be very compelling circumstances over and above those described in Exceptions 1 and 2 (for convenience here we will summarise that as 'the very compelling circumstances test'). In his oral submissions, Mr Tufan directed us to [49] of HA (Iraq) which confirmed what was said at [38] of Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 namely that to amount to very compelling circumstances there must be "a very strong case indeed ... the countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders". Ms Radford accepted this authority but submitted that the factors relevant to the appellant are all to be considered cumulatively and notwithstanding the high threshold, there is still no test of exceptionality.

 

50.          As neither DM nor AM are qualifying children their circumstances have not yet been considered. It is nevertheless incumbent upon us to recall that, as they are not qualifying children, Parliament's intention is that they would not attract the same degree of protection as qualifying children although their best interests still fall to be considered as a primary consideration within the applicable legal framework. We also revisit the factors set out in at [51]-[52] of HA (Iraq) (see [14] above).

 

51.          We of course remind ourselves of the strength of public interest in deporting foreign criminals. This is a significant factor. In the appellant's case, the respondent relied on the nature and seriousness of the trigger offence and confirmed at [59] of the refusal letter that the public interest in removing the appellant from the UK included the interests of preventing offending and establishing deterrent. In oral submissions, Mr Tufan further relied on the parts of the sentencing remarks in which the sentencing judge commented on the appellant's history of committing robbery and other dishonesty offences in Moldova from 2002 onwards for which he appeared to have received a total of 10 years in prison. The sentencing judge also found the appellant's history of dishonesty offending in the UK to be an aggravating factor, as was the appellant's attempt to dispose of evidence of the offence It is also clear from the sentencing remarks that the appellant entered a timely guilty plea to the trigger offence for which he received a full one third discount.

 

52.          In assessing the seriousness of the offence, the appellant received a sentence of 16 months, which the sentencing judge found was the shortest period they could pass commensurate with the seriousness of the offending. The sentencing judge made it clear that, had the appellant pleaded not guilty but been found guilty by a jury, the sentence would have been 24 months, but that they had reduced the sentence by one third to reflect credit for the appellant's guilty plea. The sentence before credit is relevant for the assessment of the seriousness of the offence ([69] HA (Iraq)). The nature of the offence in question can also be relevant to the assessment of seriousness (see [71] HA (Iraq)). Here we note the offences were of dishonesty and did not involve acts of violence. In summary the appellant had in his possession articles for use in the course of or in connection with fraud. The fact of an immediate custodial sentence of 16 months after a guilty plea denotes without more that offending of this sort at this level is serious. But we do not find there are features over and above the length of sentence pointing to a character of offending in respect of which even more weight attaches to the public interest.

 

53.          There was no submission on the appellant's behalf to the effect that the appellant is rehabilitated and we do not find there would be any evidence to support any such submission in light of repeated offending in a like manner and the relatively short period since the end of the appellant's sentence of imprisonment.

 

54.          Mr Tufan also relied on the appellant's inability to speak much English and his financial situation to engage sections 117B(2) and (3) of the 2002 Act. He submitted that the appellant's presence here was contrary to the public interest on financial and language grounds. We agree in light of our findings about finances above. We also note that the mitigation advanced to the sentencing judge was that the appellant's dishonesty offending arose in the context of financial hardship, so there is an inherent overlap with the appellant's financial insecurity here and his risk of reoffending. Finally we note the undisputed immigration history that the appellant was warned of the risk of deportation were he to offend again but proceeded to do so (see [4] above).

 

55.          Taken together, we find the appellant's offending to be serious as denoted by the sentence he received and that he remains at risk of reoffending. We therefore find there to be significant public interest in his deportation. There is also public interest in deterring third country nationals from offending which is enhanced by deporting those who meet the threshold for deportation.

 

56.          In relation to the appellant, we return to all we have said above in relation to him and his family members. We summarise the factors to which we have regard as follows:

 

a)       He and his family have lived in the UK for 6 years;

b)       The appellant's wife and all of his children have the right to live indefinitely in the UK, DAM as a British citizen and the rest as they have settled status under the EU Settlement Scheme;

c)        There is a strong family life between them all and it is unduly harsh upon them to be separated;

d)      All of the children's best interests include them remaining in the UK but particularly in relation to DM who is approaching a critical stage of his education; there is a risk of educational disruption for DM and to an extent for AM but she has more time to adjust and catch up; there is a risk of some emotional harm to DM and AM given the extent of their ties here and as they are growing up with the social mores prevalent in the UK; DAM will lose the benefit of his British citizenship throughout most if not all of his childhood;

e)       None of the family have ever lived in Romania but they speak the language and there are extended family ties there;

f)        There will be a period of adjustment for the appellant and his wife if they return to Moldova, especially as they no longer have close family there and have sold their home there, but that is mitigated by their former residence there, their cultural ties and their ability to work. As for the children, DM will remember life in Moldova, AM will not and DAM has never lived there. For the children, the culture shock will be more impactful than for their parents; they have linguistic ties there;

g)       In the absence of evidence to the contrary, the children will be able to receive an education in either Romania and Moldova and there is social benefit protection in Romania and a lack of evidence that it does not exist in Moldova.

 

57.          We do not find that any single one of these factors are sufficient in their own right to meet the very compelling circumstances test. We remind ourselves that neither did we find the unduly harsh test to be met in so far as the 'leave scenario' impacted the appellant's partner or DAM.

 

58.          In reality, what this appeal boils down to is whether the cumulative impact of the 'leave scenario' on the appellant's family members is sufficient to meet the very compelling circumstances test such that the appellant's deportation is not justified by the public interest in deporting the appellant. The preserved findings mean that the family can only remain intact if they all leave the UK with the appellant. In reality, that means that four family members who all have a right to reside here for different reasons will need to leave with the resulting outcomes as summarised above. Significantly, this outcome is contrary to what is in the best interests of all of the children albeit that in relation to AM and DAM this was a secondary finding to remaining in their family unit.

 

59.          However, it is clear that the family unit and attachments are strong and the parents will no doubt do all they can to smooth the way for the children adjusting to life in either Moldova or Romania, no doubt as they did here in 2018 when they relocated without any prior experience of living here or speaking the language. It is a matter for the appellant and his wife whether or not they choose to do this or for the appellant to leave alone notwithstanding that Judge Loke found that to be unduly harsh and that has been preserved. But given the high threshold to be met with the very compelling circumstance test, and even when taking the best interests of the children as a primary consideration, we do not find that any of the factors either individually or cumulatively are sufficient to meet that threshold so as to render the leave scenario disproportionate when balanced against the significant public interest in deporting the appellant for the reasons outlined above.

 

60.          For those reasons, we do not find the respondent's decision to deport the appellant to breach his Article 8 right to respect for his family life or that of his family members and it is not unlawful pursuant to section 6 of the Human Rights Act 1998.

Notice of Decision

 

1.   The appeal is dismissed on human rights grounds.

 

 

SJ Rastogi

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

24 February 2025

 

 

 

Annex 1 - Error of Law decision

 

DECISION AND REASONS

 

1.The appellant appeals, with permission, the decision of First tier Tribunal Judge Loke ("the Judge") who dismissed his appeal against the respondent's decision of his human rights' claim in a decision dated 2 June 2024 ("the Decision").

 

2.The appellant is a 44 year old citizen of Romania but who lived in Moldova and who arrived in the United Kingdom in 2018 with his wife and (then) two children. His children are DM who was 15 years old at the date of the hearing before the FTT, AM who was 8 years old and a younger child DAM, born in the United Kingdom, who was aged 1 at the hearing.

 

3.On 14 February 2022 the appellant was convicted of theft and going equipped and sentenced to 14 weeks imprisonment. He was warned about the risk that if he continued to offend he could be deported. However, on 12 July 2023 he was convicted of possessing and controlling articles relating to fraud and he was sentenced to 16 months' imprisonment. On 19 September 2023 a deportation notice was served and on 2 October 2023 the appellant made representations in relation to his human rights. The respondent made a deportation order against the appellant on 12 December 2023 and refused the appellant's human rights claim.

 

4.For the error of law hearing I was provided with a 438 page appeal bundle, which was populated in part by new evidence not before the First-tier Tribunal and which was subject to an application to admit for the purposes of re-making if required. I heard submissions from both representatives and at the end of the hearing I reserved my decision.

 

Legal Framework

 

5.The deportation order was made under section 32(5) of the UK Borders Act 2007 on the grounds that the appellant's deportation is conducive to the public good as he is a foreign criminal sentenced to over 12 months in prison.

 

6.Within that assessment, the First-tier Tribunal was obliged to decide the appeal with reference to the framework contained within section 117A-D of the 2002 Act, but in particular section 117C which deals with human rights appeals for foreign criminals.

 

7.Given the length of the sentence, the appellant is a "medium offender" who can resist deportation if he falls within one of the Exceptions contained within either section 117C(4) or (5) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") or otherwise show very compelling circumstances over and above those exceptions pursuant to section 117C(6) of the 2002 Act.

 

The Decision of the First-tier Tribunal

 

8.The judge summarised the issues for her to determine at [13], namely whether or not Exception 2 in section 117C(5) applies to the appellant (unduly harsh) and, if not, whether there are very compelling circumstances which justify the appellant not being deported.

 

9.At [16] the judge considered the best interests of the children. She noted that DM and AM are Romanian citizens, that they are at school here and probably have been since their arrival in 2018 but prior to that they lived in Moldova. She noted the absence of any evidence about their progress at school or any extra-curricular activities. She found them "both familiar with Romanian". The judge noted that DAM is British and still very young. She concluded that their best interests are served by remaining together with both parents wherever they reside.

 

10.When the judge moved on to consider Exception 2, she found it was unjustly harsh on all of them, but particularly on AM, to stay in the UK without the appellant if the appellant was deported to Romania ("the stay scenario") [20].

 

11.However, she decided that the alternative scenario whereby the family all left the UK together and re-located to Romania or Moldova ("the leave scenario") was not unduly harsh upon them [23].

 

12.The judge noted that Ms Daykin accepted this is not a case which turned on whether there are very compelling circumstances, but, in any event, she found there to be none over and above Exception 1 and 2 [24]. Accordingly the judge dismissed the appeal.

 

The Grounds of Challenge

 

13.The single ground was particularised as follows:

 

"Failure to take account of, or adequate account of (a) the youngest child's British citizenship; (b) the important stage of education and development of the eldest child".

 

14.To support the ground, Ms Daykin relied on established authorities as to the type of assessment required when considering the best interests of the child. I return to this below.

 

15.When granting permission First-tier Tribunal Judge C. Scott said:

 

"It is arguable that whilst the judge did give some consideration to the British citizenship of the youngest child, she failed to consider the guidance as per the Court of Appeal in ZH (Tanzania) regarding the factors to be considered in relation to children who are British citizens. Further, it is arguable that the judge failed to give reasons as to why it would not be unduly harsh for the eldest child to leave the United Kingdom, given the stage of his education and his age (15 at the date of the decision)".

 

Discussion and Conclusions

 

16.In arriving at my decision I remind myself that as a specialist judge the judge is assumed to know the law. The principles flowing from the authorities on which the appellant relied are well-known within immigration appeals and the absence of express reference to British citizenship as being a weighty factor in the assessment of what is in a child's best interests and when considering the impact of the respondent's decision is a factor which the judge is likely to know and apply unless there is a clear indication to the contrary.

 

17.Nevertheless, I am satisfied the judge did make an error of law when assessing what was in DAM and DM's best interests which then infected the way she approached the assessment of the impact upon them of the leave scenario. I say that for the following reasons.

 

18.I summarised at [9] above the factors to which the judge had regard before she arrived at her decision of what was in the children's best interests. As a reminder, her conclusion was "I am satisfied that the children's best interests are served by being together with both their parents, wherever they may reside". It is important to appreciate the impact of the words "wherever they reside". The logical inference to be drawn from those words is that the judge did not conclude that the children's best interests included that they remain in the United Kingdom.

 

19.The appellant's criticism of the judge is that, firstly, she failed to have sufficient regard to DAM's British citizenship in arriving at her conclusions and, additionally, she failed to have regard to the important stage of DM's education and development. In the latter regard, the grounds identify a conflict in the judge's findings at [19] and [21] when she found respectively that "DM is now 15 and his support network is likely to be wider than his parents" and "AM and DM are still young enough that their parents are still the main figures in their life".

 

20.The first part of this criticism was set in part against Lady Hale's well known judgement in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at [30] in which she said "although nationality is not a "trump card" it is of particular importance in assessing the best interests of any child". This was reinforced in R(O (a minor)) v Secretary of State for the Home Department [2022] UKSC 3 [26].

 

21.I also remind myself of Lord Hodge's observation about British citizenship at [12] of Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 when he said:

 

"it is important to note that Lord Kerr's formulation spoke of dictating the outcome of cases "such as the present" and that in ZH (Tanzania) the court was dealing with children who were British citizens. In that case the children by virtue of their nationality had significant benefits, including a right of abode and rights to future education and healthcare in this country, which the children in this case, as citizens of the Republic of Congo, do not. The benefits of British citizenship are an important factor in assessing whether it is reasonable to expect a child with such citizenship to live in another country.

 

22.Mr Tufan relied on SD (Sri Lanka) [2020] UKUT 43 to support his submission that the in this case, the fact of DAM's British citizenship is of less significance as the difference in the country conditions between Romania and the United Kingdom are far less stark compared to the situation on return ZH would have faced; in light of the availability of education and state benefits in Romania and the fact that DAM could acquire dual citizenship in Romania. The headnote of SD says:

 

"1. British citizenship is a relevant factor when assessing the best interests of the child.

2. British citizenship includes the opportunities for children to live in the UK, receive free education, have full access to healthcare and welfare provision and participate in the life of their local community as they grow up.

3. There is no equivalent to s.117B(6) of the Nationality, Immigration and Asylum Act 2002 in any provision of law or policy relating to entry clearance applicants.

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.

5. When assessing the significance to be attached to a parent's child having British citizenship, it will also be relevant to consider whether that child possesses dual nationality and what rights and benefits attach to that other nationality."

 

23.Ms Daykin submitted that Mr Tufan's submissions address materiality rather than, strictly, whether the judge had fallen into error. She submitted that as the judge had not carried out the correct process, the outcome of any evaluation of the significance of British citizenship to DAM is not known.

 

24.Turning to the second limb of the appellant's criticism of the judge's assessment, it is well-established that whether or not a child's best interests requires them to stay in the UK depends on a number of factors, and stage of education is one of those.

 

25.In Azimi-Moayed v Secretary of State for the Home Department [2013] UKUT 197 (IAC), the Presidential panel said at paragraph (13), whilst recognising that is in not "automatically in the interests of any child to be permitted to remain in the United Kingdom, irrespective of age, length of stay, family background or other circumstances" that the case law of the Upper Tribunal had identified a number of principles to assist the determination of appeals where children are affected by the decisions and that included:

 

"ii) It is generally in the interests of children to have both stability and continuity of social and educational provision and the benefit of growing up in the cultural norms of the society to which they belong".

 

26.At [35] of EV (Philippines) [2014] EWCA Civ 874 Clarke LJ said:

 

"35. A decision as to what is in the best interests of children will depend on a number of factors such as (a) their age; (b) the length of time that they have been here; (c) how long they have been in education; (c) what stage their education has reached; (d) to what extent they have become distanced from the country to which it is proposed that they return; (e) how renewable their connection with it may be; (f) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and (g) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens."

 

27.In answering my questions at the hearing, Ms Daykin conceded there was little documentary evidence on the issue of DAM's British citizenship or DM's education albeit she said the matter was elaborated upon in oral evidence (neither the hearing notes nor transcript were produced at the hearing before me). In any event Ms Daykin submitted that those issues were not factually disputed. As the judge mentioned, there was evidence in the respondent's bundle of the state benefits and education available in Romania. At paragraph 29 of the refusal letter, the respondent noted that DAM will be able to maintain dual citizenship in Romania and he would be able to assert of right to Romanian citizenship as well as his British citizenship. The appellant did not challenge that.

 

28.However, the fact remains that in assessing what was in the children's best interests [16] the judge did not carry out any evaluation as to what DAM would lose throughout his childhood if required to leave the United Kingdom, the country of which he is a citizen contrary to the above authorities. I am not satisfied I can infer that the judge had the issue properly in her mind at this stage because in my judgement she still did not deal with the issue adequately when she briefly returned to it later. When evaluating whether relocating to Romania would be unduly harsh upon DAM [22], the judge said "DAM is a British citizen child. However again, he is plainly young enough to be able to familiarise himself with Romanian/Moldovan culture. Were he to relocate now he would have little or no memories of the United Kingdom in due course". When this is set this against the importance to be attached to British citizenship, this statement is cursory and conflates the issue of loss of the benefits of citizenship with the removal from a private life as thus far known.

 

29.Additionally, there is nothing in the Decision to suggest that the judge acknowledged that, at 15 years old, DM would be approaching a critical stage of his education and how that factored into the general principle that children should have continuity of educational provision (see [25] above). As regards the conflicting findings (see [19] above), I am satisfied this reveals that the judge had not given careful consideration to the particular circumstances of DM's situation in light of his age, but in any event, at one stage at least she was satisfied that his social circle was wider than merely his parents yet she did not address this when considering either whether his best interests were served by him remaining in the United Kingdom, or the impact upon him of leaving.

 

30.It follows from all I have said that I am satisfied the judge failed to take into account the significance of DAM's British citizenship and DM's stage of education and development in her assessment of what was in their best interests and the impact upon them of leaving the United Kingdom. I am satisfied the judge was in error as she failed to give any or sufficient reasons why DAM and DM's best interests were met by their parents "wherever they reside" and why it was not in their best interests to remain in the United Kingdom given the factors outlined above. For these reasons I find the grounds to be made out and I am satisfied the judge made an error of law.

 

31.I have considered materiality and I am satisfied that an error in assessing whether the children's best interests include them remaining in the UK inevitably infects the assessment of whether it is unduly harsh upon them to leave the UK or whether or not there were very compelling circumstances over and above Exceptions 1 and 2. Whilst it is of course possible that had the judge done what she ought she would have arrived at the same decision, that was by no means the only likely outcome and sustainable findings could have been made to the contrary.

 

32.For this reason, the error of law is material so I set aside the decision pursuant to section 12 (1) and (2)(a) of the Tribunals, Courts and Enforcement Act 2007. As there was no challenge to the judge's findings on the stay scenario (by either party) and no opposition to the proposal at the hearing, I preserve the judge's findings on that issue (see [20] of the Decision).

 

33.As to disposal, neither party invited me to remit the matter to the First-tier Tribunal and I have decided that the re-making can take place in the Upper Tribunal. Directions follow this decision.

 

34.Finally, I deal with the appellant's application to submit evidence not before the First-tier Tribunal pursuant to rule 15(2A). I admit it in order that Upper Tribunal has before it the full picture of the children's situation in order to re-make the decision.

 

Notice of Decision

 

1.The decision of the First-tier Tribunal is set aside.

2.The findings contained within para. 20 of the decision of the First-tier Tribunal are preserved.

3.The appeal is adjourned to be re-made in the Upper Tribunal in due course.

 

SJ Rastogi

Judge of the Upper Tribunal

Immigration and Asylum Chamber

22 October 2024