Upper Tribunal (Immigration and asylum chamber), 2020-12-21, DA/01129/2014
| Jurisdiction | UK Non-devolved |
| Date | 21 December 2020 |
| Published date | 13 January 2021 |
| Hearing Date | 01 December 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/01129/2014 |
Appeal Number: DA/01129/2014
IAC-FH-CK-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01129/2014
THE IMMIGRATION ACTS
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Heard at Field House And via Skype |
Decision & Reasons Promulgated On 21st December 2020 |
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On 1st December 2020 |
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Before
THE HON. MRS JUSTICE THORNTON
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
UPPER TRIBUNAL JUDGE KEITH
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
‘MS’
(ANONYMITY DIRECTION CONTINUED)
Respondent
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the respondent is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of her family. Failure to comply with this direction could lead to contempt of court proceedings.
Representation:
For the appellant: Ms S Cunha, Senior Home Office Presenting Officer
For the respondent: Ms G Loughran, instructed by Wilson Solicitors LLP
DECISION AND REASONS
Introduction
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These are the approved record of the decision and reasons which were given orally at the end of the hearing on 1st December 2020.
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Both representatives attended the hearing via Skype and the Tribunal panel attended the hearing in-person at Field House. The parties did not object to attending via Skype and we were satisfied that the representatives were able to participate in the hearing.
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The Secretary of State appeals against the decision of First-tier Tribunal Judge Welsh (the ‘Judge’), who, following a hearing at Taylor House on 24th February 2020, allowed the appeal of the respondent, a Jamaican national, (hereafter, ‘Claimant’) against the Secretary of State’s refusal on 10th June 2014 of her human rights claim. That refusal was in the context of the Secretary of State having made a deportation order in respect of the Claimant on 4th June 2009, and Secretary of State previously refusing the Claimant’s application to revoke that deportation order.
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The deportation order was made under the automatic deportation provisions of Section 32 of the UK Borders Act 2007. The Claimant’s most recent offending had resulted in a sentence of 24 months’ imprisonment, for conspiracy to steal (shoplifting). Her conviction for the index offence was on 16th February 2009, with 13 previous convictions for 19 offences. Following her release from prison for the index offence, the Claimant continued to offend and by the date of the Secretary of State’s decision in 2014, had 24 convictions from 32 offences, and her offending had begun almost immediately after she entered the UK in 2001, aged 26.
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In the context of the Claimant’s human rights application, the Secretary of State accepted that the Claimant had a genuine and subsisting parental relationship with her daughters, both British citizens, ‘KS’, born in May 2003, and ‘ZS’, born in February 2007. Both children were in the care of Waltham Forest Children’s Services pursuant to a Family Court order. Whilst the Secretary of State accepted that it would not be reasonable to expect either child to leave the UK and return with the Claimant to Jamaica, the Secretary of State did not regard the effect of the Claimant’s deportation, while her daughters remained in the UK, as being unduly harsh. In refusing the Claimant’s application, the Secretary of State noted that the Claimant did not have a partner; and she also rejected the Claimant’s appeal on the basis of right to respect for her private life in the UK.
The Judge’s decision
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The focus of the case before the Judge was whether the Claimant met the criteria of ‘Exception 2’ of Section 117C(5) of the Nationality, Immigration and Asylum Act 2002, namely whether the effect of the Claimant’s deportation would be unduly harsh, in the context her family life with her two British national daughters.
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The Judge provided detailed reasons for concluding that the Claimant did meet the criteria of Exception 2, at paragraphs [21] to [48] of her decision. The Judge summarised the reasons why the Claimant met the criteria, at paragraph [21], by reference to the Claimant’s children:
“(1) they are children in care, with a past history of neglect and as such are very vulnerable;
(2) the only parent with whom they have ever had any contact is the [Claimant];
(3) though she was the cause of the neglect, there has been a noticeable change in the attitude of the [Claimant] over the course of the past 4 to 5 years. She is now a crucial source of support for the children, without which the emotional effect on them will be of such significance that it would have a devastating and permanent effect on [the] [sic] lives.”
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The Judge based her analysis, in part, on the reports of two independent social workers, whose expertise she accepted, based on their qualifications; their experience; the thoroughness of their reports; and the critical approach of the authors to the evidence before them (paragraph [22]). The Judge allowed the Claimant’s appeal against the refusal of her human rights claim.
The grounds of appeal and grant of permission
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The Secretary of State raised the following grounds in her appeal:
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The Judge had failed to consider that the deterioration in the behaviour of the eldest child, KS, had been caused by previous unauthorised telephone contact by the Claimant with KS, rather than the absence of contact with the Claimant.
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The Judge had erred in her reliance on the expert report of one of the independent social workers, Mr Horrocks. His conclusions were based on no more than generalisations and speculations. The Claimant was not, in any way, a positive role model for her daughters.
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At paragraph [48], the Judge had offered no further reasons for her finding about the effects of deportation being unduly harsh, other than the weak evidence of Mr Horrocks. The Claimant’s children could continue to live in the supportive environment provided by their foster carers, with assistance of Childrens’ Services, as they had done for a number of years.
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The Judge had failed to have regard to the high threshold for what was “unduly harsh” and in particular, had failed to consider that children would naturally be distressed by a removal of a parent.
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The Judge had failed to consider that the Claimant could maintain contact with her daughters by modern means of communication, following her deportation.
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First-tier Tribunal Judge O’Garro granted permission to appeal. She regarded the Judge’s reasons for concluding that the effect of deportation would be unduly harsh as arguably wrong in law, as the case of Imran (section 117C (5); children, unduly harsh) [2020] UKUT 83 (IAC) suggested that the level of emotional harm might need to rise to the level of causing diagnosable psychiatric injury to a child in order to meet the high “unduly” harsh threshold. She granted the Claimant permission to appeal on all grounds.
The hearing before us
The Secretary of State’s submissions
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First, Ms Cunha asserted that the Judge had failed to provide adequate reasons for why she concluded that the effects of the Claimant’s deportation would be unduly harsh. She reiterated the Judge’s failure to consider that the secret telephone contact by the Claimant some years earlier, as recorded at paragraph [31], had had an adverse impact on ‘KS’, which had resulted in problems in KS’s education. This on the face of it appeared inconsistent with the importance that Mr Horrocks had placed on the security and stability of the childrens’ arrangements (paragraph [38]). When we asked Ms Cunha for her submissions on paragraph [43] of the Judge’s decision, and in particular, the Judge’s findings, based on the report of another expert, Dr Boucher, of a significant improvement in the Claimant’s attitude and relationship with her daughters, Ms Cunha disputed that there had been such a significant change.
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Ms Cunha further asserted that the Judge had failed to explain the mitigating factors, in the event of the Claimant’s deportation, based on support from Child and Adolescent Mental Health Services, or “CAMHS”, for the Claimant’s daughters. The Judge’s reference at paragraph [30(2)] to the “devastating and serious effect” of a lack of engagement by KS with CAMHS, if the Claimant were removed, reflected the negative effect of the Claimant on her daughters. Ms Cunha asserted that Mr Horrocks had not referred to, or considered, the full history of the Claimant’s interactions with her daughters, so that the conclusions in his report were flawed, although when we explored with Ms Cunha whether the claimed gaps in Mr Horrocks’ analysis had been raised with the Judge, Ms Cunha accepted that the issue had not been raised.
The Claimant’s submissions
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In the skeleton argument on behalf of the Claimant, Ms Loughran asserted that the Judge had clearly summarised her reasons for finding that the effect of the separation of the Claimant from her daughters would be unduly harsh (paragraph [21]). Whilst the Judge granting permission, Judge O’Garro had cited...
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