Case No: C5/2014/2616
Neutral Citation Number: [2017] EWCA Civ 796
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER) 
Upper Tribunal Judge Kekić
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/06/2017
Before :

LADY JUSTICE SHARP DBE
and
LORD JUSTICE LINDBLOM

- - - - - - - - - - - - - - - - - - - - -

Between :

	AH (JAMAICA)
	  Appellant	
	- and -
		
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr David Chirico (instructed by Wilson Solicitors LLP) for the Appellant
Mr Rory Dunlop (instructed by Government Legal Department) for the Respondent

Hearing date: 24 January 2017
- - - - - - - - - - - - - - - - - - - - -

Judgment
Lady Justice Sharp: 
Introduction
1.	This is a second appeal, for which permission was given at an oral hearing, against the decision of the Upper Tribunal (Immigration and Asylum Chamber) (‘the UT’), promulgated on 4 March 2014, dismissing the appellant’s (‘AH’) appeal against a determination of the First-Tier Tribunal (‘the FTT’) promulgated on 11 November 2013.
2.	In that determination, the FTT had dismissed AH’s appeal on Human Rights grounds against the respondent’s decision of 16 May 2013, to make a deportation order against him. The UT found no material error of law in the determination of the FTT and therefore dismissed the appeal. 
Background
3.	The facts are dealt with extensively in the decision of the FTT, and it is unnecessary to repeat them.  It is sufficient to set out a summary of the salient matters and argument, which I do (with grateful thanks, but without attribution) from the skeleton arguments lodged by the parties.
4.	AH was born on 20 February 1976, and is a national of Jamaica, where he lived until November 2001. He had a son there, who was born in about 1993.  On 23 November 2001 AH arrived in the UK, and was granted leave to remain as a visitor. He subsequently obtained leave to remain as a student. On 7 November 2002, AH was stopped by the police in relation to driving offences. He could not give any details of where he had been studying and admitted that his cousin had made the application for leave to remain as a student on his behalf. He was served with a notice of decision that he was an illegal entrant in the sense that he had obtained leave to enter by deception. It is unclear whether at this point AH was removed from the UK (as identified in the Home Office decision letter of 3 June 2013) or whether he returned voluntarily to Jamaica (see the FTT’s decision, paragraph 5). Nothing, however, turns on this and it is accepted that AH left the UK on 12 November 2002. 
5.	At some point between 2002 and 2004, AH returned to the UK illegally. He then embarked on a relationship with PD, a Jamaican national. On 10 July 2005, AH’s first child, JK, was born to PD. 
6.	On 25 August 2006, at the Crown Court at Southwark, AH was convicted of 2 counts of possessing class ‘A’ drugs with intent to supply. He was duly sentenced to concurrent terms of 4 years’ imprisonment. He was described by the trial judge as habitually dealing in drugs. On 5 September 2008, AH was notified of the decision to make a deportation order against him. AH appealed this decision on medical grounds, namely an eye condition, but absconded whilst the appeal was being considered. The appeal was dismissed in his absence on 10 December 2008. It is notable that in his grounds of appeal, AH made no mention of JK or PD.
7.	AH had also made an asylum claim on 21 June 2008. He failed, however, to attend successive interviews with respect to his asylum claim and failed to comply with the conditions of his tagging. At the hearing on 10 December 2008, AH’s asylum claim was considered but rejected as being neither genuine nor plausible.
8.	On 10 March 2010, AH had a second child, Y, with PD. At about that time, his relationship with PD ended in acrimonious circumstances.  
9.	In 2010, AH met AA and began a relationship with her. They married. She had two children from a previous relationship: A who was born on 24 February 1992 (and who was sent to prison in 2011) and K, who was born on 7 December 1997. 
10.	In 2012, AH came to the attention of the police again in unfortunate circumstances. He was shot, and with the assistance of his evidence, his attacker was sentenced to 14 years’ imprisonment for his attempted murder. 
11.	On 2 July 2012, AH made an application for leave to remain. By a letter dated 15 May 2013 the respondent refused the application. AH’s appeal was heard by the FTT on 11 October 2013. 
12.	It is important to note that the FTT acknowledged at the outset of the determination the truthfulness of the evidence given by AH and various witnesses called on his behalf, including his wife and K; their credibility was not challenged by respondent, and this was accepted without hesitation by the FTT (FTT’s decision, paragraph 20). In relation to AH’s family life and relationship with his children, the FTT made the following findings at paragraph 20:
a.	 A strong relationship existed between AH and AA;
b.	AH had a strong relationship with AA’s children, and in particular, K, given that her natural father was often away in Barbados; 
c.	AH had a strong relationship with his biological children, whom he saw every week; and
d.	Accordingly, AH had established a private and family life in the UK. 
13.	However, the FTT considered that any interference with AH’s rights under Article 8, ECHR was proportionate and, by a decision promulgated on 11 November 2013, determined that his appeal should be dismissed:
a.	Paragraph 396 of the Immigration Rules laid down a presumption in favour of deportation;
b.	Paragraph 398(a) of the Immigration Rules applied because AH had been sentenced to 4 years’ imprisonment. In consequence, paragraphs 399 and 399A did not apply.  (As an aside I should mention, that though that approach was challenged on behalf of AH before the FTT, there was rightly no challenge to it, either before the UT or before us);
c.	The FTT then proceeded to consider whether there were any exceptional circumstances in AH’s case so as to render deportation disproportionate. It found that the circumstances were not exceptional, so that deportation would not be disproportionate. In reaching its conclusion, the FTT considered: (i) AH’s talent as an artist; (ii) the bravery which AH demonstrated in giving evidence against his attacker, having been shot; (iii) AH’s explanation for becoming embroiled in drug dealing; (iv) the nature and seriousness of the offences AH had committed; (v) AH’s immigration history and ‘blatant disregard’ for the Immigration Rules of the UK; (vi) the fact that AH had established a family and private life whilst his immigration status was precarious; (vii) the respondent’s legitimate interest in maintaining effective immigration control and preventing disorder and crime. 
14.	AH then appealed to the UT. By a decision promulgated on 4 March 2014, AH’s appeal was dismissed. UT Judge Kekić stated that:
a.	The FTT Judge was aware of the strong ties between AH and his children but there were several factors which justified deportation in AH’s case (paragraph 6);
b.	 In a case which is ‘finely balanced’, it is for the Tribunal to determine how the balance is to be struck between the competing sides (paragraph 9);
c.	There was no requirement for the UT to make further findings given that both the oral testimony and the documentary evidence were unchallenged (paragraph 10); and 
d.	The seriousness of the offence, the length of the sentence and AH’s other adverse behaviour over a prolonged period militated in favour of deportation (paragraph 11).
15.	AH’s application for permission to appeal was refused on the papers by Kitchin LJ by an Order sealed on 4 July 2014. Following a renewed application on 22 October 2015, AH was granted permission to appeal by Gloster LJ.
 Grounds of Appeal
16.	AH’s challenge to the decision of the UT is essentially based on one principal ground, namely that the UT ought to have found that the FTT materially erred in law in its approach to considering the welfare of AH’s children and stepdaughter. In particular, it is argued that the FTT failed to:
a.	Make any findings as to the best interests of AH’s children;
b.	Treat the best interests of the children as a primary consideration when assessing the proportionality of AH’s removal;
c.	State what would be in the best interests of the children; and
d.	Consider the weight which should be attached to the best interests of the children in determining AH’s appeal.

Submissions
17.	Before both the FTT and the UT, AH accepted that there were strong factors weighing in favour of his deportation (the seriousness of the criminal offence of which he had been convicted in this jurisdiction in 2006, and his very poor immigration history). His submission however, was that there were strong factors pointing in the other direction, namely: (i) his complete rehabilitation; (ii) the fact that he survived an attempted murder in the UK and gave assistance leading to the conviction of his attacker; and (iii) his role in the lives of his 2 children and 2 step children. 
18.	The material error of law which the FTT is said to have made, is that in considering AH’s Article 8 rights, and the proportionality of his removal, the FTT failed to make any or any adequate findings as to the best interests of AH’s children; alternatively, it failed to take into account factors relevant to that assessment and the proportionality determination. I am unable to accept either submission.
19.	Mr Chirico for AH submits that the FTT failed to adopt the proper approach to the issue of proportionality in relation to the best interests of the children: see the duties on the decision maker in this respect adumbrated in ZH (Tanzania) v SSHD [2011] UK SC 4; [2011] 2 AC 166, as recently reviewed by Baroness Hale in Makhlouf v SSHD [2016] UKSC 59, at paras 46 and 47.  And see further, as to the correct approach Zoumbas v SSHD [2013] UKSC 74. 
20.	In summary, he submits there was a lack of visible reasoning to demonstrate compliance with the duty to assess the best interests of the children. He says in particular, there were no express findings as to what the best interests of the children were; and there was no self-direction as to the need to treat the best interests of the children as a primary consideration, in accordance with ZH (Tanzania) and the UN Convention on the Rights of the Child.
21.	It is further argued that the FTT did not, as it should have done, ask the correct questions in an orderly manner and its determination did not demonstrate that it had identified the best interests of the children and/or that it treated them as a primary consideration. Whilst the FTT recited what those interests were, this was no substitute for an evaluation of the best interests and their treatment as a primary consideration in the determination of the proportionality of deportation. In this respect, Mr Chirico distinguishes between findings of fact and an evaluation of those facts in an assessment of the best interests of the child. 
22.	In his written submission in response Mr Dunlop makes four points: 
a.	On a fair reading of the determination, it is plain that the FTT did consider the best interests of the three children and insofar as it is necessary to ask the question whether AH’s deportation was in their best interests, the answer to that question was no; 
b.	The FTT did consider the weight to be given to AH’s family and private life although elected not to afford it ‘decisive weight’; 
c.	The FTT did consider the practical consequences of deportation, namely that deportation would sever AH’s relationship with his family; and 
d.	The FTT gave ample reasons for concluding that the public interest weighed in favour of deportation.  Further, if there were any errors in the FTT’s decision (and therefore in that of the UT) they were not material. The decision that the FTT reached was the only one that was properly open to them on the facts.  
23.	Mr Dunlop also maintained that, in any event, no purpose would be served by remission.  Even if there was an error of law, it should not be remitted back to the FTT as AH would be bound to lose a further appeal. 
Discussion
Best interests of the children
24.	It is accepted that in the context of immigration decisions, the best interests of a child are to be treated as a ‘primary consideration’. The central question for present purposes, however, is whether the FTT actually discharged its obligation to do so when considering AH’s case. In Zoumbas v SSHD, the Supreme Court identified seven principles, at paragraph 10, which are relevant when a tribunal is conducting their assessment: 
“(1) The best interests of a child are an integral part of the proportionality assessment under Article 8 ECHR; 
(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration; 
(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant; 
(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play; 
(5) It is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations; 
(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an Article 8 assessment; and 
(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.” 
25.	In my view, UT Judge Kekić put her finger on the fundamental problem with the primary ground of this appeal. The starting point of the FTT’s consideration clearly was a consideration of AH’s family circumstances, and in particular the interests of the three relevant children: K, JK and Y, as AH submitted it to be. Whether a tribunal has given sufficient attention to the overall wellbeing of the children is a matter of substance and not form: see AJ (India) v SSHD [2011] EWCA Civ 1191 at para 43. What is required is an assessment of the relevant factors in an individual case, see MK (best interests of a child) [2011] UKUT 00475, at para 23, approved by the Court Of Appeal in JW (China), MW (China) v SSHD [2013] EWCA Civ 1526 at para 22. In my judgment, no error of law can be discerned from the FTT’s approach:
a.	The FTT recognised that AH had developed a ‘sound relationship’ with AA’s children (paragraph 9);
b.	AA gave evidence that AH was an ‘impressive father figure’ for K. This was further supported by K’s evidence that AH’s role was significant in helping her to make decisions about her future (paragraphs 9 and 12);
c.	The FTT referred to the fact that it needed to undertake a ‘balancing exercise’ and then proceeded to refer to the different relationships which AH had fostered during his time here, including his relationship with his children (paragraph 20);
d.	The FTT considered the fact that it was a deep desire of the family to remain in the UK. Accordingly, AH’s relationships would be ‘severed’ and it would not be reasonable for the family to join AH in Jamaica. Thus, the Judge was mindful of the fact that it would be in the children’s best interests to remain in the UK (paragraph 20);
e.	The FTT accepted the evidence of AH and his witnesses as to what the effect of the separation would be (paragraph 20); and
f.	The FTT then proceeded to balance these factors against AH’s immigration history, his offending, the valour he demonstrated in giving evidence against his attacker as well as his talent as an artist (paragraphs 20 to 26). 
26.	It is clear that the best interests of the children did feature as part of the FTT’s balancing exercise. It is true to say that nowhere did the FTT expressly articulate the question “Is deportation in the best interests of the children?” but fairly read, there can be no question but that this was an issue at the forefront of the FTT’s consideration; indeed, it was the starting point of the FTT’s proportionality analysis during which it was expressly acknowledged that, on the evidence presented, it was clear that deportation would not be in the best interests of the children. 
27.	Had the question - ‘Is deportation in the best interests of the children?’, been clearly articulated, the FTT’s obvious answer to that question would be no. Those matters were, it seems to me, effectively embedded in the FTT’s proportionality analysis. In the event, the FTT said in terms however that it could not give decisive weight to that family and private life, as it was established when the AH’s immigration status was most precarious.  In short, they accepted AH’s argument on best interests but they formed their own evaluative judgment, in which it was one factor but not a decisive one in the overall balance. It is not possible to read paragraph 20 and sensibly reach the conclusion that the best interests of the children were not treated as a primary consideration. 
Exceptional Circumstances
28.	The legal framework, which applied at the time of the FTT and UT decisions, is that set out in paragraph 398 of the Immigration Rules, prior to the coming into force of the Immigration Act 2014. The 2014 Act came into force on 28 July 2014, and provided that Part 5A should be inserted into the Nationality, Immigration and Asylum Act 2002.  Part 5A contains at sections 117A, 117B and 117C provisions which would be relevant to any re-determination of AH’s appeal against the order for deportation were this matter to be remitted, as would the Immigration Rules in their current form, which have been amended to harmonise with the new and more stringent provisions in Part 5A as they apply to foreign criminals.  
29.	With this legal framework in mind, it is clear that there are two further problems with this appeal.
30.	The first is this. As AH was a foreign criminal who had been sentenced to 4 years’ imprisonment, if his appeal against the deportation order was to succeed, he was required to demonstrate that there were “exceptional circumstances” - that is, very compelling circumstances over and above those set out in paragraphs 399 and 399A of the Immigration Rules. Paragraph 398 of the Immigration Rules (as it read prior to 28 July 2014) provided that:
“Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,
(d) the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors” (my emphasis).
31.	The meaning of ‘exceptional circumstances’ in this context has been the subject of extensive judicial consideration: see MF (Nigeria) v SSHD [2013] EWCA Civ 1192 and Hesham Ali (Iraq) v SSHD [2016] UKSC 60. 
32.	In my view, there was nothing in the facts of this case which was capable of surmounting this very high threshold. Significantly:
a.	AH’s relationship with AA was at that stage of relatively short duration, and was formed in the full knowledge that AH was in the UK illegally and might be deported to Jamaica at any time; and 
b.	As for his relationship with K, JK and Y, there was nothing in the evidence which took the case out of the ordinary, let alone was it sufficient to demonstrate exceptional circumstances.  
33.	As Mr Dunlop says, correctly in my view, at the time of the FTT’s decision in 2013, AH would not even have met the test in Paragraph 399(a) of the Immigration Rules had it applied to him, as the children had parents to care for them in the UK, and the position was a fortiori, that AH failed to meet the requirements of the rules that did apply to him, viz, para 398, where the threshold was even higher for foreign criminals sentenced to 4 or more years’ imprisonment.  In those circumstances, the errors were not material, and the FTT reached the only decision that was open to it on the facts. 
34.	Secondly, there would be no purpose in remission. If the matter were to be remitted, the FTT would need to consider the appeal in the light of the current Immigration Rules and sections 117A-D of the 2002 Act: see YM (Uganda) v SSHD [2014] EWCA Civ 1292. 
35.	It is not necessary to set those rules out. However, in order for AH to succeed, he would now have to demonstrate that there were very compelling circumstances in his case over and above any “unduly harsh” effect on a qualifying partner or qualifying children. It should be noted that whilst Hesham Ali (Iraq) stated that the Immigration Rules do not constitute a ‘complete code’, even a consideration of Article 8 cases involving foreign criminals requires an assessment of whether the private and family life considerations are sufficiently ‘compelling’ or ‘exceptional’ so as to outweigh the public interest in deportation (see further, paragraph 50). Looking at the matter realistically, there is no prospect whatsoever of AH meeting this very high threshold, and no prospect therefore of a different tribunal taking a different view, if the matter were now to come before them.  
36.	The effect of AH’s deportation on AA, would not in my judgment meet the “unduly harsh” test, or the threshold in section 117C(6). Further section 117B(4) of the 2002 Act provides that little weight can be given to the relationship with AA, as AH was in the UK illegally at the time he began the relationship. K is now over 18; moreover, Mr Dunlop is right to characterise the evidence of AH’s relationship with his biological children as slender, with nothing that supports the proposition that the effect of the separation from their father would be “unduly harsh” - or - as the AH would be required to demonstrate, there were very compelling circumstances in his case over and above any “unduly harsh” effect on the children.
Conclusion
37.	It therefore follows that this appeal fails on two bases:
a)	The FTT did give adequate consideration to the best interests of AH’s children when reaching its determination and so there was no identifiable error of law in its decision-making; and
b)	Remitting the matter to the FTT would serve no purpose in any event, since AH, would not be able to demonstrate ‘exceptional circumstances’ so as to prevent deportation.
38.	 Accordingly, I would dismiss this appeal. 
Lord Justice Lindblom
39.	 I agree.