Upper Tribunal (Immigration and asylum chamber), 2024-06-13, UI-2022-006564
Appeal Number | UI-2022-006564 |
Hearing Date | 31 May 2024 |
Date | 13 June 2024 |
Published date | 05 July 2024 |
Court | Upper Tribunal (Immigration and Asylum Chamber) |
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-006564
First-tier Tribunal No: PA/11486/2017
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 13th June 2024
Before
UPPER TRIBUNAL JUDGE BLUNDELL
DEPUTY UPPER TRIBUNAL JUDGE METZER KC
Between
ANDRE THOMPSON
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Scott, solicitor, of Pickup & Scott Solicitors
For the Respondent: Mr Melvin, Senior Presenting Officer
Heard at Field House on 31 May 2024
DECISION AND REASONS
1. Both members of the Tribunal have contributed to this decision.
2. The Upper Tribunal (UTJ Blundell and DUTJ Saini) issued its first decision in this appeal on 9 January 2024. A copy of that decision is appended to this one. The effect of that decision was that the decision of the First-tier Tribunal (Judge Brannan) was set aside in part and the decision on the appeal was to be remade in the Upper Tribunal. Two findings made by the First-tier Tribunal (“the FtT”) were preserved. Firstly, that the appellant was not deserving of international protection and, secondly, that he was unable to meet the first statutory exception to deportation.
3. The resumed hearing was first listed to be heard on 7 March 2024 but it was adjourned because the appellant’s solicitors had not complied with the direction for a composite electronic hearing bundle. So it was that the appeal came to be relisted before the panel as presently constituted.
4. We need not set out the background in any detail. It was comprehensively described by the FtT and there is a short synopsis of the salient matters at [3]-[7] of the Upper Tribunal’s first decision. What matters for present purposes is that the appellant is a serious offender for the purposes of s117C of the Nationality, Immigration and Asylum Act 2002 and that he seeks to resist deportation by submitting that the private and family life which he has in the United Kingdom provides very compelling reasons which suffice to outweigh the public interest in deportation.
Documentary and Oral Evidence
5. We are grateful to Mr Scott for the composite hearing bundle which was filed and served well in advance of this hearing. A small amount of additional evidence was adduced a few days before the hearing. Mr Melvin filed and served a skeleton argument on 30 May, in response to which the appellant filed and served a skeleton to which was appended a further clip of additional evidence. We record that there was no objection to the late service of the skeleton arguments or the additional evidence, although it rendered our task in preparing for the appeal somewhat more difficult.
6. We heard oral evidence from the appellant. There were no additional witnesses. He answered questions from both advocates, after which we rose and decided that we needed to ask a certain number of clarificatory questions. Neither advocate had any questions arising from our questions. We will not rehearse the evidence at this stage in our decision but we will return to it in our findings.
Submissions
7. We then heard submissions from the parties which may be summarised in the following way.
8. For the respondent, Mr Melvin relied on the decisions under appeal and his skeleton argument. He submitted that it was for the appellant and Ms Campbell, the mother of his two younger children, to decide whether the children should stay in the UK or should return to Jamaica. The respondent could not remove the children, who are British, but it was for the parents to decide where they were raised. He was not aware of any Home Office policy which precluded him from making that submission.
9. Mr Melvin submitted that nothing turned on the delay between the appellant claiming asylum in 2017 and the refusal of that claim in 2022. The delay was attributable to the appellant, not the respondent.
10. It was clear that the appellant could not rely on the first statutory exception to deportation. It was also important to recall that he had fabricated an asylum claim. There was no protection or private life impediment to his deportation, and the real focus was on the family life between him and his children.
11. Mr Melvin accepted that the appellant lives with his two youngest children, J and D, who are aged four and five. The appellant had maintained that he was their primary carer but that was not accepted by the respondent. It seemed that the appellant had significant assistance from other people in any event. Such assistance was provided, in particular, by his older children, primarily his eldest daughter, and by Ms Campbell. It remained the case that there was no evidence of Ms Campbell’s circumstances. His evidence was rather vague. Whether they were in fact living as a family unit was a matter for the Tribunal. Either way, it was clear that she remained a significant part of the children’s lives.
12. There was a paucity of evidence since the Upper Tribunal’s first decision, although it had been clear from that point that the nature of these relationships was to be in issue. It was insufficient for the appellant to point to findings which had been made by the FtT in 2022; what was important was the current state of the relationships.
13. It was open to the appellant and Ms Campbell to decide that J and D should relocate to Jamaica with the appellant or both of them. Neither of them had any status in the UK and the best interests of the children were to be with their parents. Alternatively, the children might remain in the UK and Ms Campbell could attempt to regularise her status. It might be thought that she had a meritorious case for leave to remain, given that she has two children who are British. As indicated above, it was not accepted that the appellant was J and D’s primary carer. Nor was it accepted that the appellant had decided not to involve his children in his case to avoid causing them stress.
14. Mr Melvin submitted that Yalcin v SSHD was of limited assistance to the appellant. Paragraph [57] of that judgment was to be read in context, and with [58] in particular. In this case, there was considerable offending, the most serious of which involved the supply of heroin and resulted in the imposition of a sentence of five years’ imprisonment. There was evidently a heavy and cogent public interest in the appellant’s deportation, and nothing which served to outweigh that public interest on the facts. Although the lack of offending for some years was to be taken into account – as was the fact that the appellant was a low risk of reoffending – the public interest remained so high that it comprehensively outweighed the matters on the appellant’s side of the balance sheet.
15. For the appellant, Mr Scott submitted that the appellant was evidently the primary carer of J and D. The description he had given of his part time working arrangements had the ring of truth and should be accepted. The respondent accepted that J and D lived with the appellant in High Wycombe. There was no reason to doubt what was said about the limited role played by Ms Campbell in their care. Mr Scott invited us to accept that the appellant and J and D enjoyed a relationship with his other children also. There had been unchallenged evidence about his eldest daughter looking after J and D whilst he was out at work. If there was any doubt about the appellant’s relationship with his teenage children, K and S, it was clear that he had been paying child support for his son K in the past. Mr Scott asked to accept that the appellant also had a disabled brother in Aylesbury, with whom he remained in regular contact.
16. Mr Scott submitted that it would be unduly harsh on the appellant’s children for him to be deported. In the event that J and D were to accompany the appellant and Ms Campbell to Jamaica, they would lose contact with their half-siblings, which was also relevant. In the event that they were to stay in the UK with Ms Campbell, they would lose contact with the appellant, who has essentially raised them on his own, and would be placed with a woman who was subject to the hostile environment. Judge Metzer KC asked Mr Scott why Ms Campbell could not relocate to Jamaica. He had no real answer to that question, although he noted that J and D would have no familiarity with the country, and could not be forced to go there because they are British citizens.
17. Mr Scott noted that the appellant has not offended for some years. He noted that the Probation Service assessment was that he represented a low risk of reoffending. His rehabilitation was a factor which needed to be taken into account. Yalcin v SSHD was relevant; even if he did not qualify under the exceptions, his family and his private life combined to outweigh the public interest in deportation.
18. We reserved our decision at the end of the hearing.
Findings of Fact
19. Having reflected carefully on the oral and documentary evidence adduced before us, we find that the appellant has given an essentially truthful and accurate account of his family circumstances in the United Kingdom. He is not currently in a relationship. He has fathered six children by five different women. Two of those children, Andrea and Darnell are adults. Two, S and K, are teenagers. Two, D and J, are young children, aged four and five. All of the children are British citizens.
20. There is very little documentary evidence of the appellant’s relationship with his four older children but we think it more likely than not that what he said about them was true. He spoke about Andrea helping, on occasion, with the care of the youngest children. He made reference to the teenage children coming to visit on occasion. We accept Mr Scott’s submission that there is some evidence that the appellant continued to support K by child maintenance payments and we note also that the appellant was involved in the safeguarding measures which were initiated after K’s mother became romantically involved with a man who was...
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