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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004497 First-tier Tribunal No: HU/55619/2023 LH/02785/2023
	UI-2024-005370 First-tier Tribunal No: LH/02785/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

DEPUTY UPPER TRIBUNAL JUDGE PICKERING

 

Between

 

DKV

(ANONYMITY ORDER MADE)

Appellant

and

 

ENTRY CLEARACE OFFICER - SHEFFIELD

Respondent

Representation :

For the Appellant: The Sponsor, in person.

For the Respondent: Mr Thompson, a Senior Home Office Presenting Officer.

 

Heard at Phoenix House (Bradford) on 27 January 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant ( and/or other person). Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

 

1.        The Appellant, a female citizen of the Philippines born on 25 August 2004, appeals with permission a decision of First-tier Tribunal Judge Fisher ('the Judge'), promulgated following a hearing at Newcastle on 9 October 2023, in which he dismissed her appeal both under the Immigration Rules and on human rights grounds.

2.        The Appellant made an application for entry clearance under paragraph 297 of the Rules on 26 October 2021, which was refused by the Entry Clearance Officer (ECO) on 6 April 2023, the operative part of the refusal being in the following terms:

 

You state in your application that you are applying to enter the UK to join your mother,

referred to as your sponsor. It is stated that your father abandoned you when you shortly

after your birth. From birth you have been living with your mother or grandmother, your

mother has had periods of absence when she has worked abroad and since 2018 when

she moved to the UK. You are currently living with your grandmother and aunt, but your

grandmother is not able to continue caring for you due to her age and health conditions.

As such paragraphs 297(i)(a) to (d) do not apply to you and I have assessed your

application under 297(i) (f) and (e).

 

From the evidence provided I am satisfied that your mother has held sole responsibility

for your upbringing since birth and that she has maintained this throughout her absence

from the Philippines, you have provided school records, evidence of your mother funding

your education and medical treatments as well as following up on these with both your

aunt and teachers. There is also evidence of regular communication between yourself

and your mother.

 

However consideration has been given to Paragraph 297(vii) and your application falls

for refusal under the general grounds for refusal.

 

The Secretary of State has noted that the partner of your parent has a conviction in the

UK for a criminal offence against a child. Having considered all the information before

her, including the following: certificate of conviction dated 22/01/2007, the Secretary of

State considers that this person poses a risk in accordance with paragraph S-EC.1.9. of

Appendix FM.

 

Your application is therefore refused on suitability grounds under paragraph S-EC.1.9. of

Appendix FM of the Immigration Rules. As per paragraph A280(b) of the Immigration

Rules, applications made under paragraph 297 of the Immigration Rules must not fall for

refusal under S-EC.1.9.

 

I have also considered whether the particular circumstances set out in the application

constitute exceptional circumstances which, consistent with the right to respect for private

and family life contained in Article 8 of the European Convention on Human Rights, might

warrant a grant of entry clearance to the United Kingdom outside the requirements of the

Immigration Rules. Following a thorough assessment of the application I am satisfied that

there is no basis for such a claim. Additionally, I have a duty to safeguard children under

section 55 of the Borders, Citizenship and Immigration Act 2009 and have considered

your situation in light of this. It has therefore been decided that there are no exceptional

circumstances in this case. Consequently, the applicant will not be issued entry

clearance outside the rules.

 

3.        The schedule of issues set out in the Appellant's representative's skeleton argument were:

 

i whether the Appellant's case does not fall for refusal under the general grounds for refusal.

ii are there any serious or compelling circumstances considerations that make child exclusion undesirable.

 

4.        The Judge's findings are set out from [9] of the decision under challenge. The Judge sets out the correct legal self-direction in that paragraph and that the sole issue in the appeal under the Rules is whether paragraph S-EC.1.9 applies on the basis it is considered the Appellants parent or parents partner poses a risk to her and, if so, that the Rules provide for a Mandatory refusal of the application.

5.        The concerns expressed by the ECO and on the evidence do not relate to the Appellant's mother IV ('the Sponsor') put to her husband RVDH who, under his previous name, was convicted by a jury at Newcastle Crown Court in January 2007. In relation to this the Judge writes at [10]:

 

10. The Memorandum of Conviction shows that RVDH, albeit in the surname H, was convicted in the Crown Court at Newcastle in January 2007 of one count of attempted buggery, for which he was sentenced to four years' imprisonment, eight counts of indecent assault on a male for which he received two year sentences of imprisonment to run concurrently, one count of buggery for which he was sentenced to five years' imprisonment, consecutive to the four year sentence for the inchoate offence, and a further two years concurrent for two indecent assaults on a female. The total sentence, therefore, was one of nine years' imprisonment. In addition, Mr VDH was required to sign on the Sex Offenders Register for life and he was disqualified indefinitely from working with children. The length of the sentences imposed is a mark of the gravity of the offences, which Mr VDH had denied. He was obviously convicted after trial. The online BBC report before me indicates that he absconded during the trial and fled to the Philippines, although it is to his credit that he returned voluntarily in November 2007 after some 10 months and was arrested at Heathrow airport. References to convictions being "spent" in the first Appeal Skeleton Argument are incorrect, especially in the case of the 60 month sentence. Realistically, that argument was not pursued by Mr Magsino.

 

6.        The Judge accepts that RVDH's offences were committed in the 1970s and early 1980s, and that they could be described as historical and that he had not been convicted of any offences since [11].

7.        It was not disputed before the Judge that the offences related to offences against children, who had been identified as the children of his older cousins rather than any of his pupils, he having worked as a music teacher. The Judge finds it relevant that the offences were committed in a domestic setting, in breach of family trust, a point to be factored into the risk assessment [11].

8.        The Judge confirms having taken careful consideration of the witness statement of RVDH, who also gave oral evidence. The Judge notes he was released in early May 2013 [12].

9.        Although the Judge refers to evidence arising in cross-examination of the Sponsor about the proposals that had been made if the Appellant were granted entry clearance, to which she stated that she and her daughter could live in a property in Bradford that had been made available to them whilst RVDH continued to live in the family home in County Durham with the Sponsor and her daughter being able to visit him there, it became abundantly clear that they all wanted to live together as a family unit in County Durham and that, if successful in her appeal, the Appellant will clearly be living with her mother and stepfather in County Durham [13].

10.    The Judge at [14] records that RVDH told him he wished to underline the fact that he had accepted the decision of the criminal courts and asked the Judge to look at the picture overall. The Judge records asking him if he was still maintaining his innocence to which the Judge then records "... to which he initially responded that everyone could pick holes in arguments which they had lost. Asked again, he replied that "there was guilt". However, he said that there were allegations during the trial which had been wildly different to anything he said before, and added that Counsel on both sides had been mystified by them. He admitted that he had given evidence in the trial. In my judgement, there is still a degree of equivocation in terms of his culpability which increases the level of risk. In his skeleton argument, Mr Magsino referred to the decision in KAMKI v SSHD [2017] EWCA Civ 1715. In that case, Sales LJ said that the fact that the appellant did not accept his guilt made the present threat even more acute".

11.    The Judge considered the email from a Ms Tween of the Durham Constabulary PPU which was produced on the day of the hearing in relation to which the Judge writes " I have no doubt that great care was taken over the wording of this electronic message. Understandably, at no point does it purport to comment on the level of risk which will be faced by the Appellant if she were to reside with RVDH" [15].

12.    The Judge also confirms having considered the written statements in the most recent bundle and provides an explanation for the weight given to that evidence [16].

13.    At [17 - 18] the Judge writes:

 

17. No evidence was adduced by Mr Magsino, either orally or in documentary format, to demonstrate that RVDH had undertaken any formal offending behaviour courses with the Probation Service whilst in prison. Such evidence could reasonably have been expected. I am aware that, usually, in cases where a defendant has denied their guilt in sexual offences, such work is not undertaken because it is said to lack appropriate focus. The absence of such evidence weighs against the assertion that there would be no risk to the Appellant. Furthermore, there was no OASys report before me which might have assisted in terms of risk assessment, nor was there any other evidence from the Probation Service.

 

18. Moreover, there was no expert psychological evidence to demonstrate that there would be no risk to the Appellant from RVDH if she were to live with him and her mother. I have seen reports of that nature in many cases in this jurisdiction, particularly in deportation appeals where the risk of reoffending is of particular relevance.

 

14.    Having drawn together the threads of the evidence in relation to the immigration rules the Judge writes at [20]:

 

20. In all of these circumstances, on the evidence before me, I could not be satisfied that RVDH does not pose a risk to the Appellant. The appeal therefore falls for mandatory refusal under Appendix FM.

 

15.    As we advised the parties at the hearing, this is a sustainable finding not affected by material legal error. Paragraph S-EC.1.9. of Appendix FM reads:

 

S-EC.1.9. The Secretary of State considers that the applicant's parent or parent's partner poses a risk to the applicant. That person may be considered to pose a risk to the applicant if, for example, they - -

 

(a) have a conviction as an adult, whether in the UK or overseas, for an offence against a child;

(b) are a registered sex offender and have failed to comply with any notification requirements; or

(c) are required to comply with a sexual risk order made under the Anti-Social Behaviour, Crime and Policing Act 2014 and have failed to do so.

 

16.    There is therefore an element of discretion available to the Secretary of State when considering whether the matters that have been brought to her attention support a finding that a parent or parents partner poses a risk to an applicant. Sub paragraphs (a) -(c) are examples of the type of conduct that would be of concern to the Secretary of State but not an exhaustive list.

17.    The evidence before the decision maker and the Judge in relation to RVDH clearly shows that he has a conviction as an adult in the UK for offences against children for which he was convicted after trial, as he pleaded not guilty, and was sentenced to a period of imprisonment.

18.    It is not made out on the material available to the Secretary of State that the assessment resulting in refusal under the Immigration Rules was in any way irrational, infected by any other form of public law error, such as it being unlawful or unreasonable, on the basis of the information available.

19.    The Judge then went on to consider Article 8 outside the Rules. It was accepted that Article 8 (1) was met on the basis of family life between the Appellant and her mother. The Judge finds the issue in relation to ECHR was that of the proportionality of the decision [21].

20.    In relation to this aspect the Judge writes:

 

22. It is well established that, in the assessment of proportionality, the best interests of the child have to be a primary consideration, meaning that they must be considered first. Although Section 55 of The Borders, Citizenship and Immigration Act 2009 may not strictly apply because the Appellant is outside the jurisdiction, I have applied the spirit of the Act as the Appellant was a minor at the time of the application. I am satisfied that it would not be in her best interests to be exposed to a risk of sexual violent offences in the UK.

 

23. Otherwise, applying the balance sheet approach, I have taken into account all of the positive factors advanced on behalf of [RVDH] as set out above, but I am satisfied that a risk remains to the Appellant and that the requirements of the Immigration Rules cannot be met. Section 117B(1) of the Nationality, Immigration and Asylum Act 2002 provides that the maintenance of effective immigration controls is in the public interest. As this is enshrined in primary legislation, I am satisfied that I should attach substantial weight to it. Mr Magsino's Supplementary Appeal Skeleton Argument accepts that a decision to refuse entry clearance on mandatory refusal grounds can rarely, if ever, be found to be contrary to Article 8 by the Tribunal if those refusal grounds have been correctly applied. For all of the reasons set out above, I find that the refusal grounds have been, and are, correctly applied. The decision is proportionate to the risk involved to the Appellant and there are no exceptional circumstances which would result in unjustifiably harsh consequences for the parties if entry clearance is refused. Accordingly, I cannot uphold the appeal on Article 8 grounds outside the Rules.

 

21.    The Appellant sought permission to appeal which was refused by another judge of the First-tier Tribunal but granted on a renewed application, on Grounds 1 or 2 only, by Upper Tribunal Judge Linsley on 9 December 2024, the operative part of the grant being in the following terms:

 

3. I grant permission to argue the point in ground two relating to s.55 of the Borders, Citizenship and Immigration Act 2009 because this relates to the issues of an arguable error with respect to the appellant's age. There is no arguable error relating to s.117B of the Nationality, Immigration and Asylum Act 2002 or the proportionality exercise outside of the Immigration Rules however: entirely adequate reasons for given for the decision at paragraph 23 of the decision.

 

4. The third ground of appeal contends, in short summary, that the First-tier Tribunal erred in law by not taking into account the fact that the appellant's mother's partner had not been in trouble with the law since 2007and that evidence had been produced at the hearing from the PNC and a Ms Tween of the Durham Police. The fourth argues that it was not properly 11 2 taken into account in the decision that the offending of the appellant's mother's partner took place 42 years ago, even though the conviction was in 2007. This grounds also contains allegations that the lawyer the sponsor engaged was incompetent and dishonest and took £4000 for an inadequate service, and did not act on instructions when he put forward that the appellant's husband accepted his guilt in relation to the offending which he unequivocally does not, and that he entered a not guilty plea at his trial.

 

5. It is clear from paragraph 10 of the decision that the First-tier Tribunal correctly understood that appellant's mother's partner was convicted of a number of serious sexual offences following a not guilty plea. It is clear from paragraph 11 that the First-tier Tribunal also understood that the offences were committed in the 1970s and 1980s, and thus a long time ago, and also that it was argued that they were committed in a family rather than a teaching setting. It is also clear from paragraphs 14 and 17 of the decision that the First-tier Tribunal found the appellant's mother's partner had not unequivocally accepted his guilt, in line with what is argued in the grounds of appeal as being the correct position. Consideration is given to the email from Ms Tween of Durham police at paragraph 15 of the decision. I find that there is an accurate record of the fact that there has been no adverse reports since the conviction in 2007 and that the appellant's mother's partner is considered low risk by them. It is correctly recorded however that the email did not address the appellant residing with him and considering is then given to the fact that there is no other expert evidence on the risk the partner might pose to the appellant. I find that that all of these issues were fairly considered on the evidence before the First-tier Tribunal and the third and fourth grounds are not arguable.

 

22.    The appeal is opposed by the Secretary of State who in a Rule 24 response of 24 October 2024 writes:

 

2. The respondent opposes the appellant's appeal. In summary, the respondent will submit inter alia that the judge of the First-tier Tribunal directed himself appropriately.

 

3. In the grounds, there is an assertion that the judge made a clear error about the appellant's age. There was no finding by Judge Fisher that the appellant was anything other than her chronological age.

 

4. The appellant may be unaware of the legal fiction that the practice of the First tier Tribunal is to treat a child applicant as a child until her appeal is finally decided, despite her becoming an adult whilst the appeal is pending.

 

5. The other grounds are no more than disagreement with Judge Fisher's findings. These findings are clear and comprehensive and apply the relevant jurisprudence.

 

Discussion and analysis

23.    At the start of the hearing before the Upper Tribunal, in light of the fact the Sponsor and her husband RVDH were not represented, we explained carefully to them the nature of the proceedings and in particular our role as appellate judges.

24.    Guidance has been provided by the Court of Appeal in relation to the approach when considering an appeal of a judge below such as that which can be found in Volpi v Volpi [2022] EWCA Civ 462 at [2], Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26], and Hamilton v Barrow and Others [2024] EWCA Civ 888 at [30-31].

25.    We also ensured that the parties clearly understood that the question often posed by the Court of Appeal was whether the decision under challenge is one within the range of those reasonably open to the Judge on the evidence.

26.    We have considered with the required degree of anxious scrutiny all the documentary material that has been provided in support of the appeal together with the submissions made to us on the day.

27.    We reminded the Sponsor and RVDH that it was not the role of the Judge or of this Tribunal to go behind the findings of the jury at the Newcastle Crown Court in relation to the conviction.

28.    We also indicated at the outset that we accepted the point made at [6.1] of the renewed application for permission to appeal that the Judge had made a mistake of fact in the proportionality assessment when stating that the Appellant was still a minor at the date of decision, whereas she had attained the age of 18 prior to the Judge's findings. The Appellant's correct age at that time was 18 years and 8 months. The question, as per the Court of Appeal guidance in relation to mistake of fact, is not only whether a mistake of fact had been made, which we accept on the chronology it has, but whether that mistake of fact is material to the decision under challenge, namely the decision to dismiss the appeal.

29.    We do not find it is for when one looks at the determination as a whole that was only one of the reasons the Judge relied upon. The underlying concern of the Judge related to the issue of potential real risk to the Appellant from RVDH.

30.    The Judge's observations in relation to lack of any form of professional intervention or offender work with RVDH are well within the range of findings reasonably open to the Judge on the evidence and are not disputed.

31.    Although RVDH referred in his submissions to the fact that the offences and convictions had taken place a number of years ago, the trial in 2007 related to allegations in 1992 or earlier, this is clearly a matter taken into account by the Judge.

32.    It was also accepted by the Judge that since 1982, the date of the offences, a substantial period of time had passed with no evidence that RVDH had faced any other criminal allegations.

33.    We do not accept it made out that the Appellant was denied a fair trial before the Judge. It is clear the Appellant was represented and there is nothing in the determination or the evidence to suggest that the Judge did not consider the relevant aspects as he was required to do.

34.    We note from the documents provided in support of the appeal that the Sponsor and RVDH are very unhappy with the conduct and standard of service they received from their previous legal advisers and have made a claim to the Legal Ombudsman which is ongoing. We say nothing further about that as there is no resolution, as far as we are aware, and nor is it made out that the Appellant's was denied a fair hearing, despite any difficulties that may have been experienced. That is not an assessment of how the Sponsor and RVDH view the service they received but an assessment of the legal consequences of same even if credible, which we cannot comment upon, upon the fairness of the hearing before the Judge.

35.    In the Grounds seeking permission to appeal, whilst complaining about the services of Mr Magsino it is written " in his supplementary skeleton argument is 6 October 2023, although he was fully aware that my husband maintained his innocence, Magsino wrote in a statement for me that "Mr VDH (my husband) accepts his guilt has taken steps to rehabilitate. He has served his sentence and was released early". This statement goes on:

 

This was an absolute and utter live, and bore no relationship to the truth. At no time did my husband to tell Magsino any of this. My husband has ALWAYS maintained his total innocence and will always continue to do so. The effect of this totally false claim has been to create further uncertainty and very serious concern...."

 

36.    There are further paragraphs in the statement in which the Sponsor refers to RVDH not admitting guilt where he says there is none. We refer to the Judge's finding at [17] and the evidence not demonstrating that RVDH had undertaking any form of offending behaviour courses with the Probation Service. That is quite correct as it was an absolute right for prisoners to claim their innocence which RVDH did.

37.    The Judge was therefore factually correct to find that RVDH had been convicted by the Crown Court at Newcastle, sentenced to a substantial period of imprisonment, and placed on the sex offenders register and prohibited from working with children. The Judge was also entitled to find that there was no evidence that RVDH had undertaken any sex offender work with the Probation Service or any expert psychological evidence dealing with the issue of risk. Whilst, as the Sponsor maintains RVDH has a right to refuse any intervention the consequence of that is, as the Judge acknowledges, that from the starting point of being a convicted sex offender who has abused children, there was nothing available to indicate that such risk only existed in the past. There is nothing to explain why the offences found by the jury to have been committed were, and what it was within RVDH's personality or mindset that led him to commit such offences. The comment about the importance of admitting such offences is well established as it is only with such an admission and explanation that an individual can start undertaking work to address the identified concerns.

38.    Although RVDH referred to the gap between the alleged offences and the complaints made to the police we do not find this is of any relevance. Children who are abused may experience physical and psychological harm, shame, or fear, and may not speak out at the relevant time, especially if during the past when nobody appeared to listen to them. They may have more courage in adulthood to speak out especially with the more open culture that exists when speaking about childhood abuse, which is much easier following the work undertaken by ChildLine and through the national press. One only has to look at news reports about women and children who were abused by those they trusted, including teachers, members of the priesthood, about which they could not speak about during their childhood, but could only speak out substantial period of time later, to show this is not an isolated occurrence. Victims of child abuse may find it very difficult to speak about things that they may have buried in their minds, but the jury at the Crown Court found their account credible, despite RVDH's attempts to suggest their claims had no merit or to discredit them by claiming it was for economic gain, or to be critical of his conviction. It is clear there was sufficient to warrant a conviction to the higher standard of proof, beyond reasonable doubt, applicable in criminal proceedings.

39.    Having listened very carefully to the case advanced by the Sponsor and RVDH it is clear when distilling them down to any form of legal argument, their case is simply that they disagree with the Judge's findings.

40.    In terms of the Sponsor, it is clear from her stance that she cares for RVDH, her husband, believes him, and accepts what he has told her as to his innocence. It is clear that she loves him. The problem is that when one considers that against the weight of the evidence as a whole she opens herself up to a criticism of being blind to the potential risk to her daughter, which was specifically the concern to the Judge.

41.    Whilst RVDH also disagrees with the Judge's findings, on the basis of his disagreement with his conviction, or his alternative submission that it was so long ago and as he has not done anything in the interim there is no evidence he would offend in the future if this young lady was permitted to join their household, there was simply insufficient evidence before the Judge to enable him to accept that argument.

42.    We have found above that the Judge considered the evidence with the required degree of anxious scrutiny. We are satisfied that the findings of the Judge are supported by adequate reasons. The Sponsor and RVDH must appreciate the reasons only need to be adequate, not perfect. Although the Judge made an error in relation to the Appellant's age at the date of decision, it is clear that when even factoring the correct age into the proportionality assessment as a whole, that it cannot be said that the Judge's findings are outside the range of those reasonably open to the Judge on the evidence. The Appellant was unable to satisfy the requirements of the Immigration Rules. The Judge's finding that there are no exceptional circumstances that would result in unjustifiably harsh consequences for the parties if entry clearance was refused as a finding within the range of those reasonably open to the Judge on the evidence. In light of the Judge's finding about lack of evidence to show there is no risk, the Judge's finding that it would not be in the best interest to expose the Appellant to a risk of sexual violence offences in the UK has not been shown to be a finding outside the range of those available to the Judge on the evidence.

43.    It does not matter whether another judge would have made this decision or not. Returning to the Court of Appeal test, the question of whether this finding is within the range of those reasonably open to the Judge on the evidence, we find it is.

44.    On that basis there is no justification for the Upper Tribunal interfering any further in relation to this matter.

Notice of Decision

 

45.    The First-tier Tribunal has not been shown to have made an error of law material to the decision to dismiss the appeal. The determination shall stand.

 

C J Hanson

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

29 January 2025