Upper Tribunal (Immigration and asylum chamber), 2022-06-23, HU/07596/2020
| Appeal Number | HU/07596/2020 |
| Hearing Date | 15 March 2022 |
| Published date | 08 July 2022 |
| Date | 23 June 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: HU/07596/2020, UI-2021- 000425
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07596/2020
UI-2021-000425
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 15 March 2022 |
On 23 June 2022 |
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Before
THE HON. MRS JUSTICE ELLENBOGEN,
SITTING AS A JUDGE OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MF
(anonymity directioN MADE)
Respondent
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, we make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify MF or members of his family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
Representation:
For the Appellant: Ms S Cunha, Senior Home Office Presenting Officer
For the Respondent: Ms U Miszkiel, Counsel, instructed by Chipstiso Associates LLP
DECISION AND REASONS
Introduction
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For ease of reference, we shall refer to the parties as they were before the First-tier Tribunal. Thus, the Secretary of State is once more the Respondent and MF the Appellant.
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This is an appeal by the Respondent against the decision of First-tier Tribunal Judge McMahon (“the judge”), promulgated on 26 August 2021. By that decision, the judge allowed the Appellant’s appeal against the Respondent’s decision, dated 28 September 2020, refusing his human rights claim, which had been made in the context of deportation proceedings.
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The Appellant is a citizen of Nigeria, born in 1982. He arrived in the United Kingdom in May 2011 as a Tier 1 post-study migrant. He subsequently obtained two extensions of leave on the basis of Article 8 rights. In January 2020, the Appellant was convicted of conspiracy to dishonestly make false representations in order to make gain for himself or another or to cause loss to another or expose another to risk. In February of that year, he was sentenced to 24 months’ imprisonment. This initiated deportation proceedings under section 32(5) of the UK Borders Act 2007. In response to notification of a decision to deport, a human rights claim was made, based on private and family life under Article 8. In respect of the former, it was said (in brief terms) that he had established himself in the United Kingdom. As to the latter (which formed the central thrust of his representations), reliance was placed on his relationship with a British citizen, Miss H, and his parental relationship with their two British children.
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Following the Respondent’s refusal of the human rights claim, the Appellant exercised his right of appeal.
The decision of the First-tier Tribunal
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The judge began his decision with a summary of the relevant procedural background and noted the evidence presented to him. This included oral evidence from the Appellant, Miss H, and her parents, in addition to a variety of documentary materials. Importantly, these included two reports from Ms Susan Pagella, a psychotherapist with a specialism in the assessment of minor children. The judge concluded that Ms Pagella was “clearly an expert in her field”, was aware of her duties as an expert, had been provided with all relevant documentation, and had produced “two detailed, informed, considered and balanced reports about the best interests of the Appellant’s children”, to which “appropriate weight” was to be accorded: [11].
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The judge then directed himself to the relevant legal framework, including paragraphs A398-400 of the Immigration Rules, section 117C of the Nationality, Immigration and Asylum Act 2002, as amended (“the 2002 Act”), and section 55 of the Borders, Citizenship and Immigration Act 2009: [14]-[18].
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A detailed consideration of the evidence was set out at [21]-[58]. These were prefaced with the observation that the majority of the relevant factual matrix in the case was not in dispute. Having considered the circumstances surrounding the Appellant’s offending at some length, the judge turned to his connections with Nigeria, finding that his parents and a number of siblings continued to reside in that country and that he came from a “wealthy family”. The next matter to be addressed was the Appellant’s children, who were aged 7 and 8 years old at the time. The judge assessed a range of evidential sources, including Miss H, Ms Pagella’s reports, the children’s school, and various medical professionals (in respect of the younger child).
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In respect of Miss H’s evidence, the significant impact on the children during the Appellant’s imprisonment was noted, with particular reference to the eldest, who had become “very angry, withdrawn and was having nightmares.” The incarceration had “massively affected” her son. On the Appellant’s release, both children had settled, with the greatest change been seen in the elder. This evidence was supported by that from the school, which confirmed the particular detriment suffered by him. Several passages from Ms Pagella’s reports were then quoted, going to the issues of separation and a possible relocation of the family unit to Nigeria. In the words of the expert, the former scenario would have “extensive repercussions regarding [the children’s] psychological, emotional and social development and future educational attainment to their long-term ‘all-round’ detriment”, whilst a move to Nigeria would be “little short of catastrophic.”
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The judge had regard to the younger child’s medical condition, nephrocalcinosis (a rare disease related to the kidneys), which required regular monitoring and medication.
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The assessment of the evidence ended with a consideration of Miss H’s own circumstances. She had a close relationship with her parents. She had a medical condition which required further investigation.
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The judge then placed the assessed evidence into the legal framework under a sub-heading of “Application of the Law to My Findings”. Having referred to the public interest in the deportation of foreign criminals, he then addressed the private life exception contained within section 117C(4) of the 2002 Act. On a simple analysis of the chronology, the judge found that the Appellant had not spent more than half of his life lawfully in the United Kingdom and therefore could not satisfy the exception: [64]-[65].
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As to the family life exception under section 117C(5) of the 2002 Act, the judge identified the two possibilities which had to be addressed, namely a relocation by the entire family unit Nigeria (the “go scenario”) and a separation (the “stay scenario”): [68].
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There then followed a specific self-direction to the leading authorities on the unduly harsh test: KO (Nigeria) [2018] UKSC 53; [2019] Imm AR 400 and HA (Iraq) [2020] EWCA Civ 1176; [2021] Imm AR 59. By now well-known passages from the judgment of Underhill LJ were quoted, along with important observations from Peter Jackson LJ about the nature of emotional harm done to children:[69]-[71].
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On the basis of five considerations predicated on the prior assessment of the evidence, the judge concluded that it would be unduly harsh for the entire family to relocate to Nigeria: [72]. He also concluded that it would be unduly harsh on the children and Miss H if they were to be separated from one another: [73].
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As to the “stay scenario”, the judge reiterated the expert opinion of Ms Pagella on the very strong bond between the children and the Appellant and the likely effects of separation: [75]-[76].
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Bringing his analysis together, at [77], the judge concluded as follows:
“The facts in this appeal lead me to find that the Appellant’s deportation would cause undue harshness to both Miss [H] and their children. The scale of the emotional harm and the distress that would be caused, whether by separation from the Appellant, on their mother or the likely consequences for the family of relocating as a whole to Nigeria, reaches the elevated threshold required under the statutory exception.”
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The appeal was duly allowed.
The grounds of appeal and grant of permission
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In view of our analysis and conclusions on the error of law issue, below, it is appropriate to set out the Respondent’s grounds of appeal in full:
“The Judge of the First-tier Tribunal has made a material error of law in the Determination.
The appellant made himself liable for automatic deportation when he received a 24 month prison sentence in 2020.
The [judge] finds that it would be unduly harsh for the family to re-locate as a unit to Nigeria, even though this would prevent separation. The appellant agrees he comes from a wealthy family and was privately educated, so it is likely the family would avail themselves of the same for the children and use private rather than public healthcare facilities.
The respondent does not agree it would be [unduly harsh] for the family to move to Nigeria, but if the wife and children do not want to, that is entirely their decision, the respondent is not forcing them to do so, but it is an option.
Other options the [judge]...
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