Imran (Section 117C(5); children, unduly harsh)
| Jurisdiction | UK Non-devolved |
| Judge | Chamberlain J,O'Callaghan UTJ |
| Judgment Date | 11 February 2020 |
| Neutral Citation | [2020] UKUT 83 (IAC) |
| Date | 11 February 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2020] UKUT 83 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Chamberlain J and O'Callaghan UTJ
Mr Z Raza, instructed by Marks & Marks Solicitors, for the Claimant;
Mr T Melvin, Senior Home Office Presenting Officer, for the Secretary of State.
KO (Nigeria) v Secretary of State for the Home Department; IT (Jamaica) v Secretary of State for the Home Department; NS (Sri Lanka and Others) v Secretary of State for the Home Department; Pereira v Secretary of State for the Home Department[2018] UKSC 53; [2018] 1 WLR 5273; [2019] 1 All ER 675; [2019] Imm AR 400; [2019] INLR 41
MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 223 (IAC); [2015] INLR 563
R (on the application of Agyarko) v Secretary of State for the Home Department; R on the application of Ikuga) v Secretary of State for the Home Department[2017] UKSC 11; [2017] 1 WLR 823; [2017] 4 All ER 575; [2017] 3 CMLR 3; [2017] Imm AR 764; [2017] INLR 548
Secretary of State for the Home Department v KF (Nigeria) [2019] EWCA Civ 2051
Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213
Borders, Citizenship and Immigration Act 2009, section 55
European Convention on Human Rights, Articles 3 & 8
Immigration Rules HC 395 (as amended), paragraphs A398–399 and EX.2 of Appendix FM
Nationality, Immigration and Asylum Act 2002, section 117C
UK Borders Act 2007, sections 32 & 33
Immigration — children — section 117C(5) of the 2002 Act — unduly harsh — PG (Jamaica)[2019] EWCA Civ 1213 and KF (Nigeria)[2019] EWCA Civ 2051 applied
The Claimant, a citizen of Pakistan, entered the United Kingdom in 2010 and was subsequently granted indefinite leave to remain. In 2018, he was convicted of assault occasioning actual bodily harm, for which he was sentenced to 18 months imprisonment. The Secretary of State for the Home Department ordered the Claimant's deportation. In response, the Claimant made a human rights claim relying on his family life rights. He was in a relationship with a British citizen, NI, and the couple had three children together, who were also British citizens. The Secretary of State refused the claim.
The First-tier Tribunal (“FtT”) allowed the Claimant's appeal against the refusal of his human rights claim. The Judge found that the requirements of Exception 2 in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) were met because the Claimant had a genuine and subsisting parental relationship with his three British children and it would be ‘unduly harsh’ for the children either to remain in the United Kingdom without their father or to relocate with their parents to Pakistan. At the time of the hearing the children were aged eight, six and four. The Judge paid regard to the contents of a report from Hampshire Children's Services, commissioned by the Secretary of State to assess the impact on the children of separation from their father. The report stated that, according to NI, the children were closer to the Claimant than to her. NI and the children's school had made it clear that the Claimant played the main parental role before he went to prison. The report confirmed that the children had been affected emotionally by their father's absence during his time in custody and had received support from the school for their well-being. The FtT Judge heard oral evidence from the Claimant, NI and her sister and found them all to be credible witnesses. He accepted that the children had been noticeably happier and more emotionally stable since the Claimant had returned to the family home. The Judge held that an enforced move to Pakistan would be deleterious to the children on a number of levels, including disruption to their education, the effects of likely financial difficulties and the instability of the political and security situation prevailing in the Claimant's home area of Kashmir.
On appeal, the Secretary of State submitted first that the FtT Judge failed to identify how the case met the ‘unduly harsh’ threshold. She argued that the matters he referred to did not go beyond the inevitable effects of deportation and so did not provide a proper evidential basis for concluding that the test was met. She relied on the case of Secretary of State for the Home Department v PG (Jamaica)[2019] EWCA Civ 1213 in support of her submissions. Secondly, she argued that the FtT Judge failed to provide adequate reasons for concluding that the ‘unduly harsh’ test was met. In particular, there was no evidence of any involvement from Social Services other than for the purposes of the Secretary of State's own enquiries. That being so, the FtT's findings failed adequately to explain why NI would be unable to cope in his absence, given that she had the benefit of an extensive family network. Thirdly, the Secretary of State submitted that the FtT Judge failed to provide adequate reasons for concluding that it would be unduly harsh for the children to move to Pakistan.
Held, setting aside the FtT decision and dismissing the Claimant's appeal:
(1) The reasons given by the FtT Judge indicated an impressively meticulous approach to the assessment of the documentary materials and oral evidence. He correctly directed himself that the test to be applied for ‘unduly harsh’ was an exacting one and the reasons he gave explained why he reached the conclusion that the test was satisfied. It was rarely appropriate to interfere with a decision of the FtT in which it was clear that the correct test had been applied and the reasons properly explained the factors which led the tribunal to conclude that it was satisfied. There were however cases in which a court or tribunal hearing an appeal on the ground of error of law could properly conclude that, on the facts found by the first-instance decision-maker, it was not open to him to conclude that the relevant test was satisfied. PG, in which the Court of Appeal set aside a decision of the FtT that deportation would be unduly harsh, was such a case. PG was authority for the proposition that, to bring a case within Exception 2 in section 117C(5) of the 2002 Act, the ‘unduly harsh’ test would not be satisfied, in a case where a child had two parents, by either or both of the following, without more: (i) evidence of the particular importance of one parent in the lives of the children; and (ii) evidence of the emotional dependence of the children on that parent and of the emotional harm that was likely to flow from separation. Consideration as to what constituted ‘without more’ was a fact sensitive assessment. The FtT Judge did not refer to PG and there was no indication that it was cited to him by either side (paras 20 and 25 – 27).
(2) The FtT was correct to conclude that there was evidence of strong reciprocal ties between the Claimant and his children. The ties were stronger in the instant case than in many others, but that did not serve materially to distinguish the case from PG, where there was also an express finding that the father played an important part in his children's lives. There was a proper basis for the FtT's conclusion that the children would suffer emotionally if the Claimant was deported. The fact that the children received emotional support at school when the Claimant was in prison, together with the improvement in their emotional state when he returned to the family home, was a sound basis on which to conclude that they would suffer emotional harm if their father was deported and they remained in the United Kingdom. Although there was a firmer evidential basis than in PG for the conclusion that emotional harm was likely to be suffered, the harm in question was not qualitatively different from that in PG. There was, for example, no evidence that it would rise to the level of causing any diagnosable psychiatric injury. There was no reason to doubt the basis for the FtT's finding that the Claimant's absence when in prison had placed increased stress, both financial and emotional, on NI, which caused indirect suffering to the children. That was not capable, taken alone or together with the likely emotional harm to the children, of supporting a finding that deportation would be ‘unduly harsh’. In Secretary of State for the Home Department v KF (Nigeria)[2019] EWCA Civ 2051, Baker LJ stated that all children deprived of a parent's company during their formative years would be at risk of suffering harm, but under the 2002 Act, it was necessary to look for consequences characterised by a degree of harshness going over and...
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