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- 2024-004922
	First-tier Tribunal No: HU/61251/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 14 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RUDDICK

DEPUTY UPPER TRIBUNAL JUDGE Ó CEALLAIGH KC

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

OMAR KASSIM BANA

(NO ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: Mr Andrew Mullen, Senior Home Office Presenting Officer

For the Respondent: Ms L. Marshall Bain, instructed by Aden & Co Solicitors

 

Heard at Field House on 22 January 2025

 

­

DECISION AND REASONS

 

Introduction and background

 

1.       The Secretary of State appeals the decision of First-tier Tribunal Judge Bennett sitting in the First-tier Tribunal in Manchester pursuant to a grant of permission by Upper Tribunal Judge O'Brien. In order to avoid confusion, we will refer to the parties as they appeared below. Accordingly, while the Secretary of State is formally the appellant in this appeal, we shall refer to her as "the Respondent" and Mr Kassim Bana as "the Appellant".

2.       The Appellant is a national of Somalia.

 

3.       On 30 September 2001 the Appellant came to the United Kingdom as a child aged 16, on a family reunion visa to join his mother, who had been granted refugee status.

 

4.       On 8 March 2002, the Appellant was granted asylum and indefinite leave to remain.

 

5.       On 20 July 2018, the Appellant was convicted of aggravated vehicle taking and criminal damage, resulting in 18 months' imprisonment. On the same occasion he was sentenced to six months' imprisonment, to be served consecutively, for perverting the course of justice. Following these events the Respondent decided to pursue deportation proceedings.

 

6.       It appears that the Appellant was served with a decision to make a deportation order on 1 August 2018, 3 September 2018, and 11 November 2019, as well as decisions to revoke his refugee status on 24 March 2022, 28 August 2022 and 14 March 2023.

 

7.       The Appellant was treated as having made a human rights claim, and that claim was refused on 11 August 2023. His protection claim was also refused, and on 24 July 2024 the Appellant's refugee status was revoked. The Appellant appealed to the First-tier Tribunal.

 

Proceedings in the FTT

 

8.       On 10 September 2024 the matter came before FTTJ Bennett sitting in Manchester.

 

9.       There was a measure of agreement between the parties at the hearing. The Secretary of State conceded [19] that the Appellant had not been convicted of a "particularly serious crime" for the purposes of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") and the appellant was therefore not excluded from refugee status on account of criminal offending Nevertheless the Secretary of State maintained that he was no longer entitled to refugee status or other forms of internal protection due to a significant and durable change in country conditions, and that deportation was appropriate and proportionate under article 8.

 

10.   She accepted, however, that he has a genuine and subsisting relationship with his partner and his children for the purposes of Exception 2 in s117C of the 2002 Act, and that it would be unduly harsh for his partner or children to be expected to accompany him to Somalia [21].

 

11.   Counsel for the Appellant at first instance, Ms Faryl, accepted the proposition that if he would be sent remittances from the United Kingdom on his return to Somalia then the issue of destitution would not arise and she indicated that the question of remittances would need to be explored with him in his oral evidence [20]. She also expressly conceded that he was a "foreign criminal" as defined in s117D of the 2002 Act [21].

 

12.   The Appellant and his wife (for legal purposes his partner; they are not married in UK law though they have undergone a religious marriage) gave evidence. It is clear that while the FTT approached the evidence of the Appellant himself with some caution (see e.g. [53]), Ms Sufi was an impressive witness (see e.g. [63-64]).

 

13.   In a determination promulgated on 14 September 2024, the Appellant's appeal was dismissed on protection grounds and allowed on Article 8 ECHR grounds. Although the FTTJ did not accept that the Appellant met the terms of Exception 1 of s117C of the 2002 Act, she found that Exception 2 was met because it would be unduly harsh on both his wife and his children for him to be deported while they remained in the United Kingdom. Since his sentence was shorter than four years, that sufficed for the appeal to be allowed (HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 at §47).

 

14.   On 18 September 2024 the Secretary of State sought permission to appeal from the First-tier Tribunal.

 

15.   On 17 October 2024 permission to appeal was refused by FTTJ Bibi.

 

16.   On 23 October 2024 the Secretary of State sought permission to appeal from the Upper Tribunal.

 

17.   On 29 October 2024 permission to appeal was granted by Upper Tribunal Judge O'Brien. Granting permission UTJ O'Brien noted that:

 

"...it is arguable that the judge has failed to give adequate reasons for concluding that the family would be unduly harshly affected by the appellant's deportation."

 

Grounds of appeal

 

18.   The Secretary of State's sole ground of appeal is that the FTT erred in failing to give reasons for findings on material matters. She asserts that the FTTJ's findings are "contradictory" and not supported by the evidence. In particular it is said that:

 

a.       The FTTJ's finding that the Appellant could be sent remittances from family members, potentially including his wife in the United Kingdom, is inconsistent with the findings that her finances would be stretched by his deportation;

 

b.       The FTTJ should have found that the Appellant could actually support his wife from Somalia and/or that other family members could assist her with her finances;

 

c.        There is no Social Worker's report to support the finding that her finances would be stretched by losing the support of the Appellant, and such consequences are "an accepted consequence of deportation";

 

d.      Aside from the fact that the Appellant lives with his family, the FTT had not identified "any factors which would indicate [his deportation] would be unduly harsh on his partner and children"; it was noted that the child who has ADHD is doing well in school;

 

e.       The Appellant had not explained how he could have parenting responsibilities while working as a train driver;

 

f.         The Secretary of State considers the FTT should have accorded less weight to oral accounts of care arrangements;

 

g.       Since the hearing, the Secretary of State has obtained a PNC that suggests the Appellant has a pending prosecution from 01/05/2023, when he said at the hearing he was no longer committing crimes.

 

The hearing

 

19.   We noted at the outset of the hearing that the FTTJ dismissed the Appellant's appeal on protection grounds. There has been no cross-appeal against that finding. We canvassed with Ms Marshall Bain whether there was any other basis on which the Appellant should be anonymised and there was none. We therefore confirm the decision of the FTTJ to lift the Anonymity Order.

 

20.   As is clear from the above, the single ground of appeal is somewhat diffuse. We are grateful to Mr Mullen for narrowing his focus at the hearing.

 

21.   It was his submission that the FTTJ had erred in law by forming a view that separation of a parent per se was something that would have an unduly harsh effect on children. Such separation was inherent in deportation and was not sufficient in itself to reach the high threshold of "unduly harsh" in s117C(5) of the 2002 Act. Moreover, the four children ranged in age from 7 to 17; it was hardly as though there were four children under five.

 

22.   Mr Mullen referred to the FTTJ's determination at [67], in which she held as follows:

 

"67. I have considered all of the evidence in the round. I have taken account, in particular, of the following:

a. the progress of the Appellant towards being a positive role model;

b. the formative ages of the children;

c. the positive outcomes that the current family arrangements are producing despite the additional challenges posed by the son's additional needs;

d. the emotional dependency of the son on his father;

e. the impact that losing the Appellant's income and his practical support would have on his wife and her ability to in turn support the children.

 

68. I conclude that the effect of the Appellant's deportation would be unduly harsh both on the Appellant's wife and his children and that Exception 2 at 117C(5) is satisfied."

 

23.   It was Mr Mullen's submission that the factors above in [67] of the FTT's determination could not properly support a finding that the threshold was reached.

 

24.   In her helpful submissions, Ms Marshall Bain noted that the FTTJ had correctly directed herself at [57]. She had clearly referred to the correct test, and both there and at [59] and onward she purported to apply it. She noted that contrary to Mr Mullen's assertion, the eldest child was in fact 15 and not 17. She referred to the detailed findings at [62-64], which bear setting out in full:

 

"62. The Appellant and his wife have four children, aged 15, 14, 13 and 7. They all live in the family home. I am impressed at the children's school reports, which are in evidence before me. Their attendance at school is excellent and their reports are all positive, indicating that homework is completed well and that they are bright and engaged children. I consider that this indicates that the existing domestic arrangements, which correspond with the period since the Appellant finished his prison sentence, work well and are providing the children with a supportive and beneficial environment.

 

63. The Appellant's son, who is 14 years old, has an Education, Health and Care Plan (ECHP) due to his diagnosis of ADHD. Despite his additional learning needs it is apparent from the ECHP and his school report that he is an extremely able child, who is happy, ambitious and well-behaved. The impression is of a well-adjusted child who is being supported well inside and outside of school. It was the Appellant's evidence, both in his witness statement and in cross-examination, that his son requires extra attention: "He gets angry in the classroom sometimes and the school calls us to pick him up...." And that he spends a lot of time with him, "playing football, going to the park, walking around". This accords with the Appellant's wife's oral evidence that "[The Appellant]'s got a strong relationship with [the children]. It works for us to be a mother and father. His relationship is much stronger with my son because of his issues; he has ADHD, he is feeling lonely and he always knows that [the Appellant] is there to play a game or play football....he's there as a father. He looks after them the majority of the time."

 

64. As well as the particular attention that the Appellant gives to his son, it was his evidence that he plays a central role in family life, taking the children to school each morning, taking them to classes and looking after them when his wife is otherwise occupied. This was corroborated by the Appellant's wife."

 

25.   It was Ms Marshall Bain's submission that the FTTJ was entitled to accept the evidence of the Appellant and his wife on these issues. She also submitted that the FTTJ was entitled to accept their evidence that the Appellant's wife had caring responsibilities for her father, pursuant to a formal care arrangement, and that she would be "stretched both financially and emotionally" if the Appellant were to be removed to Somalia.

 

26.   Mr Mullen, in our view wisely, did not pursue the submission in the grounds that an error of law arose because an item on a PNC that was not before the Tribunal suggested further offending by the Appellant. The Tribunal cannot have erred by not taking into account evidence that was not before it. Ms Marshall Bain nevertheless clarified that this was a mistake and referred to an investigation involving the Appellant's brother. There had been no further offending.

 

27.   Ms Marshall Bain also referred to the judgment of Lady Hale in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 in which she held:

 

"This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently."

 

28.   At the end of the hearing we reserved our decision.

 

Discussion

 

29.   In our view it is quite clear that the determination of FTTJ Bennett is a careful and thorough one that contains no error of law. She correctly set out the relevant test and applied it, making findings of fact that were open to her.

 

30.   The FTTJ did not treat the separation of a child from a parent as inherently unduly harsh per se. On the contrary, having set out the correct test in terms, the FTTJ engaged in a detailed analysis at [59-68]. There she considered a range of plainly relevant factors including: (i) the fact that the Appellant and his wife and children live together as a family; (ii) the fact that those living arrangements are currently working well for the children; (iii) the likely impact of separation on the Appellant's children, particularly in the context of one child having additional learning needs currently managed well with significant support and input from the Appellant; (iv) the particularly close relationship between the Appellant and the child with additional needs; (v) the fact that the Appellant's wife does not work because she cares for her father who has mobility problems; (vi) the fact that the Appellant is financially supporting the family. The conclusion that the Appellant's wife would find her "financial and emotional resources considerably stretched" [66] should the Appellant be removed from that equation was, on any view, within the range of reasonable conclusions.

 

31.   The factors set out at [67] and those quoted above are all relevant to the question of whether the Appellant's deportation would be unduly harsh on his wife and children. Mr Mullen's submission amounted in substance to a Wednesbury challenge. In our view it is not made out.

 

32.   Although they were not addressed orally by Mr Mullen we turn to the remaining issues set out in the grounds.

 

33.   First, there is no contradiction between the proposition that the Appellant would be able to survive on remittances from family members in the United Kingdom on the one hand, and the proposition that his wife's finances would be stretched in the United Kingdom if he were deported on the other. The removal of his earnings and support would, on the FTTJ's findings, have a significant financial impact on her and her children. This is in no way undermined by the finding ([40] that his " mother, siblings, wife/partner " may be able to send him some money in Mogadishu. Indeed, properly considered, that finding supports the proposition that his wife would be financially stretched as it would amount to a further burden. Insofar as it is suggested in the grounds that he might be able to support her from Somalia, that is an ambitious submission that perhaps unsurprisingly does not appear to have been made before the FTT.

 

34.   There is no requirement for a Social Worker's report to set out that the Appellant's wife's finances would be stretched by the Appellant's removal. That is an easily reached conclusion in circumstances where he was found to be in employment and she was found to be at home caring for her father. It is certainly a matter on which the FTT was entitled to accept the evidence of the Appellant and his wife, as it was entitled to accept the evidence of the Appellant's wife in respect of her caring responsibilities. We do not agree that the FTTJ was obliged to give those matters raised in oral evidence limited weight: the weight to be accorded to evidence is a matter for the Tribunal.

 

35.   While the Respondent submits that the loss of the Appellant's financial support would be "an accepted consequence of deportation", it was in our view a relevant factor in assessing whether his deportation would be unduly harsh. Indeed the Respondent does not actually suggest otherwise. We do not accept that the FTT has failed to "identify any factors" that would render the Appellant's deportation unduly harsh: she expressly did as set out above, at [59-68] of the determination.

 

36.   Insofar as it is asserted that the fact that the Appellant is in "employment as a train driver" is inconsistent with the finding that he "has parenting duties" there is no obvious contradiction that we can identify.

 

37.   We note the explanation of Ms Marshall Bain as to the alleged further police investigation on the PNC. Moreover, as Upper Tribunal Judge O'Brien noted in the grant of permission:

"The judge cannot... be criticised for failing to take into account material not put before her."

38.   For these reasons, we find that decision of the First-tier Tribunal did not involve the making of an error of law requiring it to be set aside.

Notice of Decision

 

The Decision of First-tier Tribunal Judge Bennett promulgated on 14 September 2024 did not involve the making of an error of law. We therefore uphold that decision. The Secretary of State's appeal against that decision is dismissed, with the consequence that Mr Bana's appeal against the Secretary of State's decision to refuse his human rights claim is allowed.

 

Greg Ó Ceallaigh KC

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

30 January 2025