1. This is an appeal against a deportation order made by the Secretaryof State on 17 December 2010. It comes before me following a grantof permission by First-tier Tribunal Judge Froom on 20 July 2011 andthe finding, on the papers, that there were errors in the Tribunal’sassessment of the best interests of the appellant’s child. The latterdecision was taken by Upper Tribunal Judge Macleman on 18 August2011 following a concession by the Secretary of State.
2. No application for anonymity has been made however I have,nevertheless, referred to the appellant’s child only as D and to his(the child’s) mother and grandmother as RC and TC respectively.
3. The appellant is a citizen of Gambia born on 9 February 1973. Heattempted to enter the UK as a visitor in September 1995 but afterbeing refused leave to enter he claimed asylum. That appeal wasdismissed in his absence on 14 May 1998. Shortly afterwards,however, he was granted leave to remain for 12 months as a spouseand in September 1999 obtained indefinite leave to remain. Hedivorced his wife on 6 April 2004 (C3; respondent’s bundle) and wasrefused naturalisation in November 2005 on the basis that he hadfailed to disclose that there were robbery charges pending againsthim. On 30 June 2008 he applied for his ILR to be endorsed in hiscurrent passport but that was refused on 5 January 2011 becausethe Secretary of State took the view that the deportation orderinvalidated his existing leave.
4. In 2004 the appellant met RC, a British citizen, and they began arelationship. On 22 February 2009 a son, D, was born to themalthough by that stage the relationship had already ended. Theappellant’s witness statement of 1 March 2011 (Bundle 2) in whichhe claims they are engaged and the statement of 9 October 2011(Bundle 1) maintaining an ongoing relationship at that stage areboth untrue. Records show that the relationship ended when R fellpregnant (social worker’s report and TC’s statement).
5. On 16 June 2009 the appellant was convicted on three counts ofClass C (x 2) and A (x 1) drugs offences and one count of possessinga prohibited weapon. He was sentenced to a total of 5 years and 3months. The offences took place on two separate dates. Thefirearms offence and possession of a class C drug weapon occurredon 28 June 2007. The two other offences of possessing Class A andC drugs with intent to supply occurred on 14 October 2008. Theappellant entered not guilty pleas to all the offences.
6. The remarks of the sentencing judge are contained in therespondent’s bundle. The appellant was found to be “anopportunistic drug dealer, operating at a mid level of dealing withan arrangement, clearly, in the drug community that customers
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could attend at your premises at any time, day or night, to obtaintheir supplies from you. The level of your involvement is indicatedby the figures produced in the trial and also in the confiscationproceedings. That a street value which I acknowledge is theultimate value, you were dealing in no less than £15,000 worth ofClass C and Class A”. The judge found that “following your arrestyou were bailed but continued to be available to trade as before…Itbeggars belief that having been arrested, as you were and thenbeing bailed, you had no hesitation in continuing to be involved inthe drug trade”.
7. The appellant was released on licence on 2 June 2011 but remainedin immigration detention until 16 December 2011 when he wasgranted bail which currently appears to be under the authority ofthe Immigration Service. The terms of his licence continue untilJanuary 2014.
8. RC has a history of 13 theft and kindred offences, 15 offencesrelating to police/courts/ prisons, one drug offence and one firearmoffence. She has a total of 13 convictions for 30 offences. As far as Ican see, her last conviction was on 12 November 2010 and the firstwas in 2004. She also has three warnings/cautions between 1999and 2003. At the date of the First-tier Tribunal hearing she was inprison. She was released in June 2012, a year earlier thanscheduled, now lives in a hostel and has regular contact with herson.
9. On 17 December 2010 the Secretary of State made a deportationorder under section 32(5) of the UK Borders Act 2007. This wasaccompanied by a letter dated 5 January 2011. For reasons whichare not clear, the Secretary of State then withdrew that letter, andissued another on 3 March 2011. The deportation order ofDecember 2010 has not been revoked and remains the only orderbefore me.
Appeal hearing
10. The appeal first came before me on 9 October 2012. On thatoccasion, the appellant attended with his two sureties and gave oralevidence. He spoke in English. He confirmed his date of birth andaddress and adopted the witness statements contained in Bundles 1and 2 as part of his evidence. He confirmed the contents were trueand accurate. He also confirmed that TC, the maternal grandmotherof his child, still supported his appeal.
11. The appellant was asked for an update on the application forguardianship made by TC in respect of the appellant's son. Hestated that the proceedings had been adjourned until 4 December
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2012. He did not have a notice of hearing with him. He said that hisown application for contact and parental responsibility were to beheard at the same time. He was asked whether TC opposed hisapplication. He said that she recently told him that she opposed itbecause she wanted to make sure he did not fall back into his badways. He said that he used to visit his son three or four times aweek but since he started work he visited him on Saturdays only.
12. The appellant confirmed that RC was now out of prison and that shevisited their son every Tuesday at her mother's house.
13. The appellant stated that his contact with his son was supervised inthe sense that TC was present. There was no supervision by socialservices. The appellant was asked why it would be in his son's bestinterests for him to stay in the UK. He stated it was because heloved his son and his son loved him. He said the child cried when itwas time for him to leave in the evenings because he wanted him tostay and play. He confirmed he was still on licence and he had aprobation officer whom he visited once a month. He said hissolicitors had asked the probation officer to prepare a report and hedid not know whether this had been done.
14. The appellant was asked how his removal to Gambia would affectcontact with his son. He stated that he normally took his son out onSundays (although I note this contradicts his earlier evidence thathe saw him on Saturdays) and they went bowling or ice skating. Italso contradicts the evidence that visits were supervised at TC’shouse. If he were to be removed to Gambia he would not be able todo this. That completed examination in chief.
15. In cross-examination, the appellant confirmed that TC had threesons and one daughter. Two of the sons were married and livedsome 10 minutes away from their mother’s house whilst the otherson, CC, lived with his girlfriend in TC’s house. They all played a rolein the child's life and took him out. The rest of the family also visitedregularly.
16. The appellant stated that his son went to nursery but he could notrecall the name of the nursery. He could not remember the name ofthe road either but he said it was about 10 minutes walk from thehouse. He had been there four or five times accompanying TC. Hisson started at nursery last year aged two when the appellant wasstill in prison and attended Mondays through to Thursdays frommidday until three o'clock. When he was older, he would attend alocal school.
17. The appellant was asked about TC's objections to his application forcontact. He replied that he got on well with her and she did not
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oppose his contact with the child but always wanted somebody tobe with him and the child. The appellant stated that his wish was forhis son to eventually live with him but for the time being he wantedparental responsibility which would give him legal rights to makedecisions about his son.
18. The appellant agreed that his name was not on the birth certificateand explained this was because he had been in custody when thebirth had been registered and that he now had to apply to the courtfor his name to be added to the certificate. This matter was alsogoing to be dealt with in December along with the otherproceedings; no further information on this matter has beenprovided to date. He said that the hearing in the Family Court hadbeen adjourned some months ago to await a social worker's report.He did not have a copy of that report with him but he did have it athome.
19. The appellant stated that RC was not a stable person as she wasrecovering from her addiction. As far as he was aware, she did notwant their child to live with her.
20. The appellant stated that he was notified of today's hearing lastweek by his solicitors. He was asked whether he had spoken to RCor TC about coming along to give evidence. He said that his son hadchickenpox and so had to stay at home with TC. With regard to thelack of updated statements from them, he explained that hethought the letters they had already written were sufficient.
21. The appellant stated that he had been supporting his son financiallyever since his birth. Whilst he was in prison he made arrangementsfor money he earned to be sent to TC for the child. These were sumsbetween £60 and £100.
22. The appellant stated that his last employment had been with RoyalMail although he had no evidence of that. However one of hissureties had worked there with him. He had been employedbetween 2005 and 2007. Prior to that he had worked as a cleaner atHeathrow and he also worked at Honda in Langley and at PriorySchool. He had a private pension scheme with Royal Mail. It hadbeen difficult for him to produce evidence of his employmentbecause he had been in prison but he gave his national insurancenumber to the immigration authorities so they could check his taxcontributions. He confirmed that his son had been born on 22February. That completed cross-examination.
23. In re-examination the appellant was asked again about TC'sopposition to his application for a court order. He conceded that shehad opposed the application but he said he did not know if that was
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still the position. He confirmed that his contact with his son wasunsupervised, but that was always the case and when asked for theduration of his visits he said that the week before last it had beenunsupervised for some four hours. His visits were always during thedaytime. That completed re-examination.
24. In response to my questions, the appellant stated that CC was 23 or24 years old. He worked as a forklift truck driver on a full-time basis.His girlfriend worked full-time in a nursery. TC worked two nights aweek as an operator for a taxi company. TC took the child to nurseryand collected him. I asked the appellant to explain the contradictionin the evidence he had just given Mr Palmer and what he had saidearlier regarding supervised contact. He stated that the situationhad gradually developed and since he had come out of prison hehad built a better relationship with TC. I asked him what hadbrought about RC's change of heart with respect to his involvementwith their child. He said that she had seen how much the childenjoyed being with him and she was now concerned that his bestinterests were met. Neither party had any questions arising frommine. There was then a short break for us to consider the socialworker’s report of June 2012 (Report B) which had just beensubmitted. On resuming, Ms Tanner had no questions to ask. MrPalmer asked the appellant to clarify the situation regarding hiscontact with his child as all the references in the report were tosupervised contact at least up until the preparation of the report inJune. The appellant maintained, however, that he had always beenallowed to take his son to the park on his own even before June2012.
25. I asked the appellant how I could reconcile his oral evidence withthe evidence in the report which suggested that both TC and RCopposed his application for unsupervised contact. He replied that hissolicitors had tried to ascertain the reasons for the opposition andhe had been told that there were none. He denied that he had putany pressure on them to write letters in support of his appeal.
26. At this stage after some discussion it was agreed that furtherevidence would be required specifically from his probation officer,updated information from the social worker, the OASys report andevidence of identification from TC and RC to link to theirhandwritten letters. It was also considered desirable to adjourn thehearing until after the hearing of the family Court on 4 December. Adate of 11 December was agreed.
27. Regrettably for reasons not clear to me, the hearing was not listedas had been agreed and it resumed on 11 January 2013 instead.Prior to the hearing I received two bundles of documents. Ittranspired at the hearing that one of those bundles (containing the
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social worker’s report – Report A, correspondence between TC andsocial services and a statement from TC) had not been served bythe appellant’s solicitors and that Mr Palmer, and indeed MrsTanner, had not seen copies. I can only surmise that the documentsemanated from TC or someone acting on her behalf given theircontents. Copies were made for the parties. Mr Palmer sought anadjournment not just to consider the documents but because theproceedings in the Family Court had been adjourned until 24January with a further hearing some time in February. He undertookto forward documentary confirmation of same. Mrs Tanner did notobject to the application which I therefore granted.
28. The matter then resumed on 6 June 2013 having been adjourned atthe appellant’s request from the hearing on 17 April. On 31 Maycopies of a contact order dated 22 May 2013 from Slough CountyCourt and a letter dated 4 March 2013 from the Probation Serviceswere served on the Tribunal. At the resumption of the hearing ittranspired that Counsel had additional documentary evidence whichthe appellant’s solicitors had failed to serve either on the Tribunal oron the respondent. Copies had to be made. At the conclusion of thehearing I received a letter from the appellant’s representativesforwarding a letter dated 20 March 2012 addressed to them fromthe UKBA confirming that the appellant’s leave remained valid untilthe conclusion of his appeal hearing.
29. After seeking to clarify various matters, I heard submissions fromthe parties. Mr Palmer did not wish to call any oral evidence fromthe appellant.
30. Ms Tanner relied upon the reasons for deportation letter. Sheacknowledged that the main issue was proportionality and that theinterests of the appellant’s child were a primary though not aparamount consideration. She submitted that now four years old, Dhad lived with TC, his maternal grandmother, most of his life andhad been provided with a stable and caring home. TC’s son, CC, hispartner and their new baby, also resided there. The three reportsfrom the social worker spoke in glowing terms of TC’s diligence andcare and concluded that all the child’s needs were met. He was stillvery young and had not formed anything more than a limitedrelationship with the appellant. Regardless of the contact betweenthem, deportation was proportionate given the appellant’s actionsand conduct. Ms Tanner relied upon AD Lee [2011] EWCA Civ 348and ZH (Tanzania) [2011] UKSC 4. She submitted that family lifewould be disrupted because of the appellant’s bad behaviour andthat was the reality of deportation. The appellant was a repeatoffender and a drug dealer and the UK was entitled to rid itself ofhim. It was all very well to be contrite once the deportation orderhad been signed but this was a man who had continued to push
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drugs even when on bail. Factors such as the revulsion of society athis crimes and the deterrent factor outweighed family life as per N(Kenya [2004] EWCA Civ 104. Had the child been older or had henot had other stable family members in his life, the respondent’ssubmissions might be different but in the circumstances of this casewhere the child’s parents had both been involved in drugs andwhere he had found a loving and stable home with his grandmother,the appellant’s deportation was proportionate.
31. Mr Palmer accepted that the appellant’s convictions were for seriousoffences but submitted that his low risk of reoffending and the lowrisk he posed to the public were relevant considerations whenproportionality was assessed. There was up to date information fromthe Probation Services in lieu of an OASys report. The appellant hadhad lawful leave to remain and had worked lawfully. He had been ofgood character for many years. He had also been in a relationshipwith RC and had done his best to be a good father to their child.Whilst in prison the appellant had behaved well and achievedqualifications. Prison officers had written references for him. He hadengaged in training services and obtained a fork-lift truck licence.He had an offer for employment and he had worked lawfullypreviously. The family court had made an order for parentalresponsibility and contact which it did having decided that was inthe best interests of the child. As the order was made by consent,TC must have agreed to it despite her prior reservations. Theappellant’s circumstances differed from those of Lee. The publicinterest was not served by his deportation. Mr Palmer also relied onSanade (British children – Zambrano – Dereci) [2012] UKUT 00048(IAC) and Mohan [2012] EWCA Civ 1363 and argued that deportationwould be disproportionate given the strong factors in the appellant’sfavour.
32. At the conclusion of the hearing I reserved my determination which Inow give.
The Law
33. The deportation order was made on 17 December 2010 and servedon 3 March 2011. As it was made prior to 9 July 2012 when HC 194was introduced, it falls to be considered under the old ImmigrationRules. Neither party argued otherwise.
34. There is no dispute over the fact that the appellant is liable todeportation under section 32 of the UK Borders Act 2007. No claimfor asylum has been put forward to challenge deportation and thesubmissions focused solely on Article 8(2) and the issue ofproportionality, the question being whether the removal of theappellant, notwithstanding its effect on him and others, is
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proportionate to the legitimate purposes of immigration control andprevention of crime.
35. There is little dispute over the facts of the case, although therespondent believes that the appellant is using his son to strengthenhis appeal against deportation. The Tribunal must undertake theproportionality balancing exercise and decide whether more weightshould be given to the public interest or to the rights of theappellant and his son.
36. It is established case law that there is a strong public interest inremoving foreign citizens convicted of serious offences, which liesnot only in the prevention of further offences on the part of theindividual concerned, but in deterring others from committing themin the first place, promoting public confidence in the treatment offoreign citizens who have committed them and serving as anexpression of society’s condemnation of criminal activity. In N(Kenya) [2004] EWCA Civ 104, Judge LJ, as he then was, said this onthe public interest aspect in the balancing exercise:
…"public good" and the "public interest" are wide-ranging but undefinedconcepts. In my judgment (whether expressly referred to in any decision letter ornot) broad issues of social cohesion and public confidence in the administration ofthe system by which control is exercised over non-British citizens who enter andremain in the United Kingdom are engaged. They include an element ofdeterrence, to non-British citizens who are already here, even if they are genuinerefugees and to those minded to come, so as to ensure that they clearlyunderstand that, whatever the circumstances, one of the consequences of seriouscrime may well be deportation”(at paragraph 83).
37. The remarks in judgments such as N (Kenya) and OH (Serbia) [2008]EWCA Civ 694 on the weight to be given to the views of theSecretary of State were overtaken by the introduction of theprovisions on deportation by way of the UK Borders Act 2007, whichmade deportation compulsory for foreign nationals over the age of17 sentenced to more than 12 months in prison except whereremoval would breach the ECHR or the Refugee Convention. Aspointed out in MK (deportation – foreign criminal – public interest)Gambia [2010] UKUT 281 (IAC):
“The seriousness of an offence and the public interest are factors of considerableimportance when carrying out the balancing exercise in article 8. As Parliamenthas now determined where the public interest lies in cases of automaticdeportation, that factor must be taken into account together with the Tribunal’sown assessment of the seriousness of the offence.”
38. It is possible in a case of sufficiently serious offending that thefactors in favour of deportation will be strong enough to renderdeportation proportionate even if it does have the effect of severing
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established family relationships (JO (Uganda) [2010] EWCA Civ 10,paragraphs 24 and 27) and AD Lee [2011] EWCA Civ 348.
39. Strasbourg jurisprudence contains guidance on the matter of theexpulsion of long term immigrants. Much of this focuses on thosewho have spent their formative years in a member state where thefollowing factors are considered relevant when assessingproportionality:
• The personal behaviour of the appellant• The duration of residence• The consequences for the appellant and his family• Existing links with the country of origin• The time elapsed since the offence was committed and the
appellant’s conduct during this period• Ties with the host country • The person’s age at the time the offences were committed
40. Where a child is involved, that child’s best interests are a primaryconsideration following section 55 and I accept that. In this case, themain, if not the only, thrust of the Article 8 claim is the appellant’sfamily life with his son, D. In Sanade, relied upon by Mr Palmer, theUpper Tribunal summarised the following as relevant to deportationcases:
a. Article 8 is to be interpreted in a manner consistent withArticle 3 of the UN Convention on the Rights of the Child andthe statutory duty to have regard to guidance designed topromote the best interests or welfare of the child set out ins.55 the Borders, Citizenship and Immigration Act 2009.
b. The welfare of the child is a primary but not a paramountconsideration in immigration decision making. That is to sayit is a consideration of the first order and not merely a factor,but not the only consideration or necessarily a determinativeconsideration.
c. The welfare principle applies irrespective of the nationalityof the child, but where the child is British that is a particularpointer to the place where the child’s future lies. Britishnationality imposed a significantly higher threshold when adecision-maker was considering whether a child should beexpected to join a parent abroad.
d. Factors that may outweigh the welfare of the child in aparticular case are rights based considerations such as thosecontained in Article 8 (2) in particular the prevention ofdisorder or crime or the protection of the health and rights ofothers.
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e. Weighty reasons are required to justify separating a familywho are legitimately resident together in the UnitedKingdom.
f. Even where it is not reasonable to expect the other partnerto a relationship or the children to accompany the personsubject to immigration action to reside abroad theinterference with family life may be justified.
g. Notwithstanding the distress caused to a child and the lossof advantage to the child of (in these cases) a father’spresence guidance and support, the conduct of the personfacing deportation may be so contrary to the public interestas to make such separation proportionate and justified.
41. Mohan [2012] EWCA Civ 1362: court acknowledged the importanceof evidence from the family court and cited Nimako-Boateng(residence orders – Anton considered) 2012 UKUT 00218 (IAC) whichheld that the family court was best placed to evaluate the interestsof the child. But also pointed out that whereas in family lawproceedings the welfare of the child is the paramount consideration,in immigration proceedings it is a primary rather than paramountconsideration. Bearing all of the above in mind, I now proceed withmy assessment.
Findings and conclusions
42. I have carefully considered the evidence and the submissions made.In accordance with the guidance from the courts and section 55, Ibegin with an assessment of the best interests of D who is affectedby the proposed deportation of his father. The respondent initiallydisputed paternity but that is no longer the case and indeed DNAevidence has been provided to confirm the claimed relationship.Although the report points out that no ID document was received forthe father, he was in prison at the time and his saliva sampleappears to have been taken by a prison officer. D is now four yearsold. He was born when the appellant was in prison and was justshort of two years when the appellant was released from prison andcommenced supervised contact with him. When his mother wasarrested and imprisoned in February 2009, D was moved into thecare of his maternal grandmother, TC. He has remained with hersince, apart from a brief period between January and early April2010, when his mother was out of prison and offered separateaccommodation.
43. The appellant has maintained, and this is confirmed by otherevidence before me, that since his release in December 2011, hehas seen his son regularly and has attempted to build a relationship
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with him. There are, however, contradictions in the evidence aboutthe frequency and nature of the contact. Giving oral testimony inOctober 2012, the appellant stated that he saw his son 3-4 times aweek, but then later said he saw him weekly on Saturdays; this wasthen changed to Sunday visits. He also gave conflicting evidence asto whether the contact was supervised or unsupervised. He wasunable to explain why he maintained he had unsupervised contactwhen the social worker’s report indicated that the only contact hewas permitted was supervised. Regrettably, there is no up to dateevidence in respect from either RC or TC and neither attended anyof the hearings before the Upper Tribunal. Nevertheless, on theevidence before me, I accept there has been contact since theappellant’s release in December 2011 although I am unable to makeany finding as to the frequency of contact due to the conflictingevidence. I find that the appellant’s contact has always beensupervised. I prefer the evidence from the social worker in her threereports (and confirmed by C) to this effect rather than theappellant’s oral evidence which in any event was contradictoryabout the nature of the contact.
44. I accept that there is family life between the appellant and D. That isnot disputed by Ms Tanner and the parties both focused on the issueof proportionality when making their submissions. I also accept thatthe appellant has genuine affection for his son. It may be that he iswell aware that his son is the strongest element of his appeal butthat does not, in my view, detract from his feelings for the child.With regard to the proceedings in the family court, I find that thesewere prompted by TC’s application for a Special Guardianship Orderrather than exclusively by the deportation proceedings.
45. In assessing where the child’s best interests lie, I adopt the premisethat it is usually the case that a child is better off having bothparents to care for him/her. Of course that is not always the case.However, the severance of the bond between a child and a parent isnot something that can be undertaken lightly.
46. This case does not follow the usual pattern of a child living with oneor both parents and where one or both face deportation. In thiscase, the child lives with his maternal grandmother and has done forthe overwhelming majority of his short life. Both his parents havespent long periods in prison and indeed the appellant’s physicalabsence from D’s life has been longer than his presence in it. Bothparents have been involved in drugs; RC as an addict and theappellant at least as a dealer, if not a user too. The social servicesplaced D on the Child Protection Register even before his birth andhave always supported the living arrangements with TC. Thereappear to have been serious concerns voiced by TC, less so by RCand also to some extent by the social services but I am cognisant of
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the recent order from Slough County Court which, although givingTC a SGO, gives the appellant parental responsibility and limitedweekly contact rights, gradually increasing in duration and to bereviewed in December. That order, granted by consent as MrPalmer emphasised, is of great importance to my assessment.
47. It is fair to say that the evidence before me shows that therelationship between TC and the appellant with regards to D hasbeen somewhat rocky. In her statements of 20 February 2011 and13 February 2012 TC supports the appellant’s attempts to remainhere and to see his son. However her statement to the Tribunal andthe respondent dated 5 December 2012 (which was copied toCounsel and the Presenting Officer at the January hearing) shows acomplete about turn. She maintains that due to the appellant’scontinuing criminal activities, the appellant is no longer allowed tovisit her property and meets his son at a supervised centre. She hasalso adduced evidence in the form of correspondence betweenherself, the social worker and Slough council with regard to havingher front door changed for a stronger one due to fears about theappellant and his cohorts. TC states in her December statement thatshe had a panic alarm installed in her home and that she hadpassed on to the police a recording of the appellant being involvedin criminal activities. She maintains that the appellant has notchanged his lifestyle and that D was at risk.
48. I also have four hand written letters from RC. The first is dated 1June 2011. It confirms that she and the appellant have not been in arelationship for the previous three years, that she is content for theappellant to have supervised visits to see their son but that sheobjects to the child ever living with him. On 2 August 2012 shewrote to support the appellant’s attempts to build a relationshipwith the child and confirmed they have a strong bond. The thirdletter is undated and was sent from HMP Woking. In it RC maintainsthat she has been in a relationship with the appellant for sevenyears and supports his appeal against deportation. Plainly she iswrong about the duration of the relationship; seven years does notaccord with the evidence that they met in 2004 and parted whenshe fell pregnant in 2008. The fourth letter is dated 23 November2012 and also supports the appellant’s appeal.
49. Further information is provided by the social worker, DorothySessanga. I have three reports from her (although two are co-signedby others). All reports purport to have been prepared for the hearingon 6 August 2012 presumably before the Family Court even thoughat least one was signed after that date. The reports differ in certainrespects and I have labelled them as A, B and C. At thecommencement of the June hearing I attempted to clarify whichreport(s) had been before District Judge Parker at Slough Country
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Court, but Mr Palmer was unable to assist. It appears that they wereprepared both in respect of the appellant’s application for parentalresponsibility and TC’s application for a Special Guardianship Order.
50. Report A is signed by Ms Sessanga but is undated. It was faxed tothe Tribunal on 6 December 2012 along with TC’s statement andother correspondence and copies were made for the parties of allthose documents at the January hearing (see paragraph 27 above).It is prepared under section 7 of the Children’s Act 1989 for case SL12P00199 (which I note is the reference for the proceedings inSlough County Court). We are told that Ms Sessanga has been theallocated social worker since 23 February 2012, that she has metthe appellant twice, met RC once and met TC and D four times. Theyhave also had telephone contact. Ms Sessanga has also had accessto the records of Social Care, the Probation Service and the previoussocial worker. At the time the report was prepared, presumably inthe period between 23 February and 6 August 2012, the appellanthad supervised contact with the child who had been made thesubject of a Child Protection Plan before his birth due to his mother’sdependence on heroin, methadone and morphine. It is reported thatwhilst in prison, the appellant completed a short programme onsubstance misuse, provided mandatory and voluntary drug testswith negative results but received an adjudication on 27 January2011 for receiving wraps of cannabis to which he pleaded guilty.Since his release he has been compliant with licence conditions andattended parenting classes.
51. Significantly, the report states that neither RC nor TC support theappellant’s application for contact and parental responsibilitybecause they were concerned about his ability to provide adequatecare in view of his past involvement with drug dealing and to makedecisions in D’s best interests. Additionally, RC was concerned thatthe appellant was seeking parental responsibility as a gateway tosecuring his own immigration status. TC was concerned at theappellant having unsupervised contact and the risk of D beingexposed to inappropriate company.
52. Ms Sessanga takes D’s feelings into account, as much as can bedone for such a young child. She confirms she has spoken to himtwice and during both meetings “he had difficulty in articulating hisfeelings about his father or talking about his current contact withhim”.
53. Ms Sessanga warns against rushing the relationship between theappellant and D so as not to cause him confusion but observes thatthe appellant had shown limited insight into potential tensions. Shenotes, however, that there appeared to be a good relationshipbetween them.
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54. She concludes that the local authority supports the making of aSpecial Guardianship Order in respect of TC. She states that thelocal authority has concerns that if granted parental respondent theappellant may seek to take D out of the country and not return himto TC’s care and therefore recommends supervised contact until TCdecides this can change and overriding parental responsibility toremain with her.
55. I note that the report wrongly states at paragraph 5.2 that theappellant was sentenced to three years in prison; in fact his totalsentence was 5 years and 3 months which is correctly stated at4.11. The report states that the Home Office confirmed that theappellant had ILR and would retain that status unless he loses hisdeportation appeal (4.11). This is legally incorrect and I shall dealwith this later.
56. Report B is signed by Ms Sessanga on 12 June 2012 and by twoother social workers from different departments on 28 January 2011.It begins with the same history as is set out in A. It twice repeats themisinformation that the appellant received a three year sentence (at4.2 and Part 2(i)); this should be 5 years and 3 months. It states thatthe appellant was released in June 2011 (Part 2(i) and (j iv)); in facthe was not as he remained in immigration detention until December2011. The report repeats the opposition of TC and RC to theappellant’s application for contact and parental responsibility (at5.3) and the concerns that he is placing his own needs above thoseof the child and applying only to secure his own status here (5.4).Positive references are made about the care provided by TC and thestability she has given the child. The same warnings about notrushing into making changes are set out as is the child’s inability toarticulate his feelings about his father. The report confirms thatthere are no concerns about the care provided by TC who hasdemonstrated that she is able to promote D’s welfare and has hisbest interests in mind. The same recommendations are set out asabove. Several references from friends/neighbours of TC areattached.
57. The report contains a note at Part 3 about religious upbringing. It isrecorded that RC wants D to be raised as a Christian whereas theappellant wants him to be circumcised. RC opposes circumcision.
58. The pages between Part 4(h) – 4(q) are missing from the report.They could not be made available to me at the hearing.
59. I can see no reference to deportation in this report; only a referenceto the appellant having ILR.
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60. Rather perplexingly, Report C is signed by Ms Sessanga and theAssistant Team Manager on 28 August 2012 and by two other socialworkers on 28 January 2011. In these circumstances, it is unclearwhen the report was actually prepared. It contains information notset out in either of the two other reports. I am not clear why this isor whether Judge Parker had this report or one of the other lessdetailed reports before him when he considered the applications ofthe appellant and TC.
61. This report sets out the sentence correctly at 2(d) but wrongly at2(i) and refers to the deportation order but again misstates that theappellant will continue to have ILR unless he loses his appeal. Thereport states that the appellant has been employed as a lorry driverfive days a week from June 2012.
62. It is reported that during a home visit to the appellant on 22 August2012, he stated that he no longer supported TC’s SGO application.He objected to the control TC had imposed on him (3 b i). Theconflict between the appellant’s wish to have D circumcised andRC’s objection to it is recorded (3 b ii and 4aa) and RC has alsovoiced concerns about the appellant continuing to deal in Class Cdrugs (3 b iii). There is also a lengthy record of a conflict betweenthe appellant and TC about contact (ibid).
63. The same concerns about the appellant’s application forunsupervised contact are expressed by TC (4w, 4aa and 4bb). Therecommendation in conclusion is that contact remains supervised byTC until she feels it is safe and that frequency of contact should beat her discretion.
64. Despite the reservations expressed by TC and RC and despite therecommendation of Slough Social Services, it appears that at thehearing at Slough Country Court on 22 May 2013, an order wasgranted by consent. This gave Special Guardianship to TC andparental responsibility to the appellant with contact to take place ona weekly basis beginning with two hour visits at a contact centreand progressing to longer periods at different venues to be reviewedin December. I have not been made aware of the documentaryevidence placed before the court.
65. I take note of the evidence of the appellant, as given in oral
testimony and as contained in his witness statements. In hisstatement of 1 March 2011 he maintains that he and RC areengaged and plan to marry as soon as they are released fromprison. He adds that they keep in touch via letters and write and talkabout their future and their son’s future with them as a family(paragraph 3). He states that he regrets his past wrong doing, thathe just wants to live with RC and their son, that this was his first
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offence and he had no other convictions. In his statement of 16March 2011 he states that he works in prison and spends hisearnings on calling RC and their son and on supporting the child. Heconfirms that TC had agreed to D moving in with him once he wasreleased from prison. The evidence from TC and the social workerdoes not, however, accord with this claim. In the 9 October 2011statement he repeats the contents of the first statement andconfirms that upon release he wants his child to live with him. Heappears to have given up the idea of a relationship with RC; insteadhe maintains she continues to be dependent upon drugs and that heis the only parent able to look after D. In the 9 October 2012statement he maintains that he has been visiting D every day sincehis release, spends most of the day with him and takes him toparks, shopping and restaurants. However, even by his own oralevidence, this is plainly untrue. He confirms he has instructedsolicitors to apply for a parental responsibility order on his behalf.He states that whilst in prison he has been good and has abided bythe law.
66. I have a two page fax described as photographs of the appellant andD. They are of very poor quality and without the originals they are oflittle use as I cannot clearly make out what they depict.
67. I referred earlier to the incorrect reference in at least two of thesocial worker’s reports to the appellant’s indefinite leave to remain.Although the appellant was, in no uncertain terms, told in thereasons for deportation order that his existing leave was invalidatedby the deportation order, I do not blame him for his belief that hestill had ILR. This is due wholly to the confused informationemanating from the Secretary of State. On the one hand, as I havejust said, the reasons for deportation letter clearly states that thedeportation order invalidates the appellant’s existing leave (atparagraph 9), and a letter of 25 April 2012 from the UKBA, CriminalCasework Directorate (CCD) states that the appellant “should notbenefit from any grant of leave” due to his serious criminal conduct.However I have also been given a letter sent to the appellant’ssolicitors on 20 March 2012 from the CCD of the UKBA which statesthat “Until your client’s appeal is concluded, his ILR is still valid andconsequently there are no restrictions on his taking employment inthe UK”.
68. Despite the confused message sent out to the appellant by officialsat the UKBA, the position is made clear in the Immigration Rules (atparagraph 362) and the Immigration Act 1971; a deportation orderhas the effect of invalidating any existing leave to enter or remain.This was confirmed by Ms Tanner at the hearing. Further, it isconfirmed by case law: for example, in the recent case of FitzroyGeorge [2012] EWCA Civ 1362. The appellant’s indefinite leave toremain therefore ceased to exist on 17 December 2010.
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69. The result of this is that the District Judge, through no fault of hisown, was under the impression that the appellant had ILR. This isplain from the directions from the court on 4 December 2012 whichordered the appellant to “promptly notify all other parties and theJoint Legal Team if his indefinite leave to remain is revoked”. I donot say that the outcome of the proceedings would have beendifferent had the judge been aware of the correct legal position,however it is certainly possible that a different decision would havebeen reached had the appellant’s loss of status been known.
70. I take note of the letter dated 4 March 2013 from the appellant’sProbation Officer. This confirms the appellant is subject to licenceconditions, that he has reported for all appointments, has engagedwith training services and has obtained a forklift licence.
71. Several references from prison officers have also been adduced.Essentially they speak of the appellant in positive terms, describinghim as polite and helpful, determined to change his life for thebetter, cooperative and courteous. I am told he had enhancedprisoner status, communicated well with prisoners and staff andmade good use of resources. The references prompted a letter fromthe Regional Manager of Custodial Services dated 4 January 2011 tothe Immigration Team in Newcastle maintaining that prison officersshould not be writing references and that the matter would beaddressed. As Mr Palmer submitted, however, the letters form partof the evidence and I have taken note of them. I would say though,that I find it surprising that none of the references make anymention of the appellant’s adjudication of 27 January 2011 forreceiving cannabis (referred to in Report A). I note that theappellant has not sought to dispute this claim which is contained inevidence that he has himself submitted. Had there been no suchincident, I would have expected his legal team to have made theirchallenge known to the Tribunal.
72. I have been referred to the Inland Revenue letter of 29 January 2013which purports to cover the appellant’s employment in the UK. Thisshows periods of employment (via Remploy Ltd) for the tax year2007 and 2008 and job seeker’s allowance claimed between 28 July2008 and 5 April 2010. No other employment is recorded. His totalearnings as recorded by the Inland Revenue amount to under£32,000 between 2006-2012. There is no record of any earlieremployment. Other evidence provides additional, if conflicting,information. According to Report C, the appellant has beenemployed as a lorry driver five days a week from June 2012 but theletter from the Job Deal Case Manager at Milton Keynes College on 1November 2012 states that the appellant commenced employmentin August 2012. The letter dated 16 July 2012 from Purple Rose
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Ventures confirms employment commenced on 23 July 2012. Twopay slips for July and August 2012 have been submitted from PurpleVentures. They show payment in cash with no tax or nationalinsurance deductions with. Oddly, although the appellant onlycommenced work on 23 July, his pay slip for that month showsincome of £460 which is almost the same as a full month’s work inAugust (£462.08). There is no PAYE reference for the employer onthe July pay slip. The Inland Revenue letter also shows that theappellant had claimed job seeker’s allowance between 28 July 2008and 5 April 2010. However as he was in prison for at least a year ofthat period, it is unclear how he was able to make this claim.
73. The appellant’s representatives maintained on 24 March 2011 and23 May 2011 (in respect of written representations for the CMRhearing) that the appellant was in a subsisting relationship with RCat that time. Plainly this was not the case as the evidence is that therelationship ended when RC fell pregnant in 2008.
74. The appellant has made several visits back to Gambia. According tothe Secretary of State visits were made from 13 March 2001 until 1November 2002 (includes a visit to the USA), 30 February 2004 – 28March 2004, 7 October 2004 – 29 October 2004 and 4 November2004 – 21 January 2005. No evidence was called as to any earliervisits.
75. Having taken account of all this evidence I reach the followingconclusions with respect to proportionality. The best interests of Dare to continue living with TC and to have contact with both hisparents in a controlled manner. The appellant’s removal will impactupon D to some extent and may well have the effect of severelydisrupting family life between them. As I have already stated, thesevering of ties between a parent and child cannot be done lightly.However having balanced the factors for and against deportation Ihave reached the conclusion that greater weight must be given tothe public interest in the circumstances of this case.
76. On the appellant’s side I have factored in the following positivepoints:
• The presence of his child, a four year old British citizen andthe involvement, albeit limited, he has in his life
• That the best interests of that child are to continue living withTC and to have regular contact with the appellant and RC; hecannot be expected to accompany the appellant to Gambia
• The order of Slough County Court giving the appellantparental responsibility and contact on a weekly basis (albeitthat order may have been made on a misunderstanding of theappellant’s legal status here)
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• The appellant’s long residence here with indefinite leave toremain from September 1999 until December 2010
• The appellant’s employment for the tax years ending 2007and 2009
• That the appellant has been compliant with the conditions ofhis licence and has attended all appointments with theProbation Service
• That he has good references from prison officers• That he has undertaken training since his release and has
obtained a licence to operate a forklift truck• That he achieved various qualifications whilst in prison• That he has found some employment since his release
(although I am unclear whether this consisted of training andwhether it is ongoing)
• That he was been assessed as having a low risk of reoffendingand is a low risk to the public.
77. Against the appellant are the following factors:• His criminal convictions for four offences, three of which
involved drugs and one a prohibited weapon• The fact that contrary to what he claimed, this was not a one
off but that the convictions related to offences committed atdifferent times
• That the appellant continued to deal drugs whilst on bail afterhis arrest for the first offence
• That he received a lengthy prison sentence for very seriouscrimes
• That he pleaded not guilty to those offences • That the third and fourth offences occurred just a few months
before his child was born and so at a time when he knew hewas going to be a father and should have been actingresponsibly
• That the sentencing remarks show that he had been involvedin drug dealing for at least 15 months prior to his arrest
• That he received an adjudication of receiving cannabis wrapswhen in prison (to which he pleaded guilty)
• That he has sought to mislead the court by maintaining thathe was in a subsisting relationship with RC in 2011 and 2012even though the relationship ended in 2008
• That contrary to what is claimed in his witness statement, TCand RC have never been in favour of D living with theappellant and there is no evidence they ever agreed to it uponhis release
• That for half of D’s life the appellant was in prison and contactwas virtually non existent
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• That the UK should not have to put up with criminals such asthe appellant
• That society is entitled to express its condemnation of foreigncriminal activity
• The importance of the deterrent factor• That the appellant’s situation has been brought about by his
own repeated misconduct• That he was an adult when he committed all the offences for
which he was convicted• That there is no evidence of the appellant’s ties with the UK
other than through his son• That he maintains ties with Gambia as evidenced by his
lengthy visits there• That he spent his formative years (and indeed the majority of
his life) there and came here as an adult• That his asylum claim appears to have been unmeritorious
given that the appellant made regular visits home after havinglost the appeal but once he obtained ILR.
78. In reaching my decision that the public interest factors override therights of the appellant and his son, I recognise that due weight is tobe given to the order of the county court and to the view taken bythe District Judge. However, it remains the case that whilst the bestinterests of the child are paramount in the family court, they are aprimary but not necessarily a determinative consideration in theimmigration courts. D is still very young. His relationship with theappellant is in its infancy. He is a happy child, by all accounts, andall his needs are catered for by TC (as confirmed by the socialworker’s reports). Notwithstanding the difficulties surrounding hisbirth and early life, he has been fortunate to find a loving and caringenvironment in which he has thrived. He is still very young and will, Ifind, adapt without undue distress to his father’s absence. It is stillearly days since the appellant’s release and too soon to tell if he hasgenuinely changed his ways. Having been under intense scrutinysince his release due to his licence conditions, the family courtproceedings and his deportation appeal, one would expect there tobe no reoffending. His deportation does not mean a permanentend to family life. The appellant will have the opportunity to applyfor revocation of the deportation order in due course. By then he willhopefully have shown that he has reformed.
79. I recognise that my decision will cause the appellant distresshowever having carefully balanced all the considerations for andagainst deportation, I have reached the conclusion that the veryserious nature of the appellant’s offending and the other factorsidentified outweigh his rights and those of his son. The appellantmust take responsibility for this as it is his repeated bad conduct
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that has led to this situation and the break up of his family life withhis young son. As recognised by the courts, that is what deportationdoes; that is the reality of deportation.
Decision
80. The First-tier Tribunal was found to have made errors of law. I nowremake the decision and dismiss the appeal against the deportationorder.
Signed:
Dr R KekićJudge of the Upper Tribunal 12 June 2013
