BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Onykwere v Secretary of State for the Home Department [2016] EWHC 758 (Admin) (13 April 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/758.html Cite as: [2016] EWHC 758 (Admin) |
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
(Sitting as a Deputy High Court Judge)
____________________
JUDE OKILO ONYKWERE |
Claimant |
|
- and - |
||
SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
(Transcript of the Handed Down Judgment of
WordWave International Limited
Trading as DTI
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
Mr Gwion Lewis (instructed by Government Legal Department) for the Defendant
Hearing dates: 8 and 9 March 2016
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
SIMON BRYAN QC:
The Issues
i) The decision of the SSHD on 29 November 2013, in a letter of that date, to refuse the Claimant's application to have his Deportation Order ("DO") revoked and to certify that application as clearly unfounded (the "Certification Decision").
ii) The decision of the SSHD on 3 June 2014 that the Claimant's further submissions did not amount to a fresh asylum and/or human rights claim and that her previous decision to certify the Claimant's human rights claim should be maintained (the "Fresh Claim and Certification Decision").
"limited to the [SSHD's] assessment, in her letters of 29 November 2013 and 3 June 2014, of the best interests of the Claimant's child, [J], and step-child, Jessica, undertaken by reference to paragraph 399(a) of the Immigration Rules."
i) Whether, in that context, the SSHD's certification of the Claimant's asylum and human rights application as clearly unfounded under section 94(2) of the Nationality Immigration and Asylum Act 2002, as recorded on 29 November 2013 and maintained in her decision of 3 June 2014 was lawful (the "Certification Issue").
ii) Whether, in that context, the SSHD's decision that the Claimant's representations made on 17 February 2014 and 10 April 2014 were incapable of being a fresh claim by reference to paragraph 353 HC395 was lawful (the "Fresh Claim Issue").
The Factual Background
"As for family and private life in the UK ... the appellant is still not a credible witness, and the Tribunal has difficulty placing any weight upon his assertions. However he does at least have the benefit of the supporting witness evidence of Ms Restituta Kalemera, albeit that her evidence does not go very far, and he is named on his son [J's] birth certificate. In the circumstances, the Tribunal is not prepared to draw inferences as to the appellant's life in the UK without direct evidence to support vague and generalised assertions – indeed this would apply in most cases, the more so when an appellant has shown himself to be unworthy of belief" [49];
"However the Tribunal accepts that the appellant has had some sort of a relationship with Ms Kalemera, since an unspecified time after May 2006 (described only as "almost six years"). However, there is very little evidence concerning the strength of their relationship. Quite plainly, whatever relationship they have, would have been established and consolidated when the appellant's own status was decidedly precarious, and there is no suggestion that Ms Kalemera was not fully unaware this. Thus, they were both aware that the appellant was liable for deportation, or at least removal, they had a child, and latterly married, knowing that at any moment the appellant might be deported or removed. There is no direct evidence suggesting that the birth of Ms Kalemera's son did anything to strengthen their relationship." [50]
"…Ms Kalemera's statement is largely silent on any aspects of their life together, or indeed the appellant's involvement with their son. On the latter point, other than two instances of his helping her around the home when she was incapacitated and could not look after herself (or look after [J], on the second occasion) there is no information, other than a generalised and un-explained suggestion that she would not know what to do without him. She added nothing in oral evidence, and has provided no evidence of any particular bond between the appellant and her son. There is no evidence of any bonds at all between the appellant and Ms Kalemera's daughters. The appellant himself said nothing in oral evidence about married life or fatherhood, other than to state that whilst he retains his old (NAAS) address, he now spent most of his time at his wife's address…His interview and witness statement provide remarkably little information, other than indicating some recent involvement with childcare when his wife is working, and taking his son to and from nursery." [51]
"The Tribunal was struck by the complete absence of any assertions by the appellant of fatherly feelings towards [J], and the fact that the only express involvement in [J's] upbringing which described was the sort of care (recently provided, evidently in the period when he was waiting for his appeal to be heard) which could equally be provided by a paid child-minder… There are strong indications that it is the proximity of the appeal hearing which has prompted the appellant to increase his involvement in the life of Ms Kalemera and their son [J], rather than any pre-existing or long term commitment to the family unit. The Tribunal also noted that the appellant has expressed no concern that his daughter in Cameroon is being brought up in his absence, and evidently considered that the occasional telephone call was all that was required on his part to discharge his personal duties. There is little evidence of any stronger sense or fatherhood, or a genuine wish to be involved, in the case of [J]." [54]
"…There is little evidence suggesting any well-established private life in the UK, and in any event the appellant is not a witness whose uncorroborated account should be afforded any weight at all. There is very little evidence to support any conclusion that family life with his wife is at all substantial. As for ties with his son, other than generalised assertions, the only evidence relates to the appellant helping out on one occasion when the boy's mother was incapacitated, and assisting with child care and transport to and from the nursery so that his wife can work. Indeed, the main concern expressed appears to be that if he was not available as an unpaid child-minder, his wife might have to give up work. The Tribunal considers that there is no credible evidence supporting any conclusion that there are strong emotional bonds between father and son. Especially in view of the lack of probity which the appellant has displayed generally, it does not find him a credible witness and is not prepared to make any assumptions as to the nature of his family or private life in the UK unless presented in a clear and credible way, and preferably corroborated. Most of the evidence of life in the UK is far from clear, and is significantly lacking in important details." [55]
"Overall, in conducting the balancing exercise required when considering proportionality, the Tribunal has come to the conclusion that, on the particular facts of this case, the public interest in expelling a criminal offender (especially when there was no right to enter the UK in the first place) outweighs the respect to be given to the family life of the appellant, his wife, and his child. Although family life cannot reasonably be expected to be enjoyed elsewhere, this does not prejudice protected rights in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. Deportation would be a proportionate response to the offending."
"77. The key to the appellant's Article 8 case is the fact that his son, [J], is a British citizen. Applying the structured approach suggested in Omotunde, there are plainly strong public interest arguments to expel the appellant as the non-natural parent. The Tribunal must decide whether deportation is a "necessary, proportionate and a fair balance between the rights to respect for family life of the appellant and the child and the particular public interest in question". In many cases, doubtless the vast majority, the rights of a child who is a British citizen will be paramount in leading to a conclusion that deportation is disproportionate. However, each case turns on its own facts, and the case law recognises that there will be exceptions. The reality is, on the facts of this case, that the appellant would find it very difficult to see Kalemera, and their son, for the foreseeable future, should he be deported; even if (perhaps in ten years' time) he can apply for revocation.
78. However, the Tribunal found this a troubling and unusual case. Whilst it has accepted that the appellant has had a son in the UK (who is a British citizen) since November 2008, and there has plainly been some contact and latterly a role in the child care, there has been nothing which indicates to the Tribunal of substantial emotional ties which one would hope to see between father and son…
The fact that the marriage has been so recent (especially as the child was born almost four years ago), the appellant's involvement so late, and the evidence so thin, does not suggest that the appellant plays any key emotional role in the family group. There is certainly no credible evidence of that. Whilst the Tribunal accepts that the future development of a real family life is important (R(Ahmadid) v SSHD EWCA Civ 1721), the Tribunal does not accept that the evidence in this case supports any real likelihood of strong emotional ties being established in the future between father and son.
79.The Tribunal has had to ask itself the difficult question (not satisfactorily addressed by the appellant) as to the likely consequences of the appellant's departure from the family home on his wife and son, albeit after a relatively recent (and part-time) arrival there. The Tribunal considers that the evidence suggests a very limited impact. Importantly, the Tribunal does not consider that there is any evidence suggesting that the absence of the appellant would have a significant emotional affect on the child. That is not a view expressed lightly, in view of the general importance of the parent-child relationship, but there is an absence of evidence (which one would expect to see) of such a relationship. Plainly deportation would have some impact, and it might be expected to be very disruptive in the short term. However, the Tribunal is not satisfied that any family life is such that Ms Kalemera's protected rights, or those of [J], would be interfered with to any great extent in the longer term. The facts of this case are indeed unusual."
"limited to the Defendant's assessment in her letters of 29 November 2013 and 3 June 2014, of the best interests of the Claimant's child, [child J], and step-child Jessica, undertaken by reference to paragraph 399(a) of the Immigration Rules".
It should be noted that this was but one of the grounds in respect of which permission was sought (others included separation of husband and wife, aspects of the Claimant's past in Cameroon, and the Claimant's mental health).
Applicable legal principles
Rules in relation to deportation
"398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
[…]
(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; […]
[…]
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."
"399. This paragraph applies where paragraph 398(b) or (c) applies if
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British citizen; […]
and […]
(a) it would not be reasonable to expect the child to leave the UK; and
(b) there is no other family member who is able to care for the child in the UK."
"96. […] we agree that the terms of paragraph 399(a) of the Rules do not provide for a consideration of where the best interests of a child lies, and [Counsel for the Appellant] was correct to concede that the appellant could not succeed under this limb. However, when we come below to make our overall Article 8 assessment of the proportionality of the interference with the family life of the remaining family members we propose to attach little weight to this aspect of the rules, as we consider that its terms are in clear conflict with the respondent's duty under Article 3 UN Convention on the Rights of the Child 1989 to make the child's welfare and best interest a primary, albeit not the paramount, consideration. As is well known this duty has been imported into Article 8 considerations by case law, notably ZH Tanzania [2011] UKSC 4, as well as section 55 of the Borders, Citizenship and Immigration Act 2009. We doubt whether it is in any child's best interests to lose the contact and support with a caring and devoted parent simply because someone else can be found to care for them."
"399. This paragraph applies where paragraph 398(b) or (c) applies if
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British citizen; […]
and […]
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported."
"(1) The best interests of a child are an integral part of the proportionality assessment under article 8 of the Convention; (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."
Clearly Unfounded Certification
"56. Section 115(1) empowers— but does not require— the Home Secretary to certify any claim 'which is clearly unfounded'. The test is an objective one; it depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not.
57 How, if at all, does the test in section 115(6) differ in practice from this? It requires the Home Secretary to certify all claims from the listed states 'unless satisfied that the claim is not clearly unfounded'. It is useful to start with the ordinary process, such as section 115(1) calls for. Here the decision-maker will (i) consider the factual substance and detail of the claim, (ii) consider how it stands with the known background data, (iii) consider whether in the round it is capable of belief, (iv) if not, consider whether some part of it is capable of belief, (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.
58. Assuming that decision-makers— who are ordinarily at the level of executive officers – are sensible individuals but not trained logicians, there is no intelligible way of applying section 115(6) except by a similar process of inquiry and reasoning to that described above. In order to decide whether they are satisfied that the claim is not clearly unfounded, they will need to consider the same questions. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision-maker cannot conclude otherwise. He or she will by definition be satisfied that the claim is not clearly unfounded..."
"23. Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational."
"15. In approaching the question whether to certify a claim as clearly unfounded, the Secretary of State and the court have to have regard to the possibility that, on an appeal to the Asylum and Immigration Tribunal, a different conclusion might be reached upon the merits. In R (AK (Sri Lanka)) v Secretary of State for the Home Department [2009] EWCA Civ 447, the Court of Appeal addressed the relevant threshold for the prospect of success which has to be crossed: see in particular paragraphs [33] to [35]. As emphasised there, a case which is clearly unfounded is one with no prospect of success."
"34. [...] A case which is clearly unfounded is one with no prospect of success. A case which has no realistic prospect of success is not quite in that category; it is a case with no more than a fanciful prospect of success."
"but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not"
(ZL, supra at [56]).
Fresh claim
"Fresh Claims
When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
had not already been considered; and
taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas."
"6. There was broad agreement as to the Secretary of State's task under rule 353. He has to consider the new material together with the old and make two judgments. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered. If the material is not "significantly different" the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source.
7. The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution. If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaycay v. SSHD [1987] AC 514 at p 531F."
"11. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."
"18. […] in borderline cases, particularly where there is doubt about the underlying facts, it would be entirely possible for a court to think that the case was arguable […] but accept nonetheless that it was open to the Secretary of State, having asked himself the right question and applied anxious scrutiny to that question, to think otherwise; or at least the Secretary of State would not be irrational if he then thought otherwise."
"whether an independent tribunal might realistically come down in favour of the applicant's asylum or human rights claim, on considering the new material together with the material previously considered. Only if the Home Secretary is able to exclude that as a realistic possibility can it safely be said that there is no mischief which will result from the denial of the opportunity of an independent tribunal to consider the material."
Determination of credibility issues in certification and fresh claims
"Where an Appellant's case does turn on an issue of credibility, the fact that the interviewer does not believe the Appellant will not, of itself, justify a finding that the claim is clearly unfounded. In many immigration cases findings on credibility have been reversed on appeal. Only where the interviewing officer is satisfied that nobody could believe the Appellant's story will it be appropriate to certify the claim as clearly unfounded on the ground of lack of credibility alone".
"It will be a rare case which will be certified on the basis of credibility alone. In the majority of cases, caseworkers will need to be able to certify on the basis that, even accepting the claimant's account as credible and taking that account at its highest, the claim is bound to fail. The most important thing in approaching credibility/false information issues is that the principle of relying on objective/unarguable information still applies".
"21, Mr Mandalia [Counsel for the Defendant] argued that because the Claimant had given evidence about her husband's conduct and membership of the Basij, the evidence of her son added nothing, and could not make a difference. That approach by Mr Mandalia (which echoes that of the Home Secretary) is one which a moment's reflection will show is unarguable, if advanced as some rule of general application. In cases where credibility is in issue, the fact that a witness' account is corroborated by that of another witness can add to its credibility. Were it otherwise, prosecutors in criminal cases, or parties in personal injury actions, would not seek to call as many eye (or other) witnesses of events as can give relevant evidence, nor would Defendants in criminal cases advancing a defence of alibi be keen to call any supporting witnesses if they can do so. I find it concerning that so straightforward and long standing a concept as one witness giving support to another's credibility should be overlooked by the Home Secretary".
"25, Collins J set out various reasons why both the article and its provenance might be questioned, but then continued, at his 15:
"Having said that, it is accepted that [the article] is not intrinsically incredible. The adverse credibility findings were indeed based upon material which was appropriate and which it was open to the adjudicator to hold against the claimant. On the other hand, if this newspaper article is genuine, it throws into great doubt the correctness of those adverse credibility findings. Hence it is crucial to whether there is, indeed, a prospect of success in any claim" (emphasis added).
I respectfully agree. Here again, if I were making the decision I would hold that there was a realistic prospect of an adjudicator accepting the validity of the article, as a result of which the original decision could hardly stand".
The Certification Decision of 29 November 2013
"Re: Letter of support
Dear Sir/Madam
We are writing to support out step father's (Mr Jude Onykwere) immigration application.
Mr Onykwere, our step father, has been in our life for over seven years now since him and our mother Resti met in 2006- In 2008 we had an addition to our family, our little brother [J] – Since then they have been together growing stronger every day and as of 04 May 2012, they officially married which we whole heartedly supported them to do. We are all happy together as he has been there for us whenever needed, just like a father figure in our lives.
It would be very devastating to every member of this family not to have him around; we have a strong bond and have built an amazing father and child rapport by him.
Over the years he has been very supportive in helping our mother to look after us and bring us up in the best way possible; although now we are much older, we still need him and mostly our little brother [J] will not cope without a male role model in his life, we all believe that bringing up a boy in this country is ideally not a single mothers job thus we wouldn't want our younger brother to be robbed of such a privilege of having his father around to help him grow up in the correct manner, this would only prove detrimental and potentially have a very negative impact on him, which no one would wish on their own sibling.
Mr Onykwere our step father is a good man. He has been generous to us all and we would love to see him completely establish means of working to support all of us, something I am fully aware he wishes to do greatly.
We are appealing to whoever is dealing with his case to put oneself in our situation and consider the effect of splitting a family like ours apart. What happens to us, our little brother and our mother? Not only would it be unjust, it'll inevitably be very hard to deal with. Separating us will be nothing short of emotional torture and so we are appealing that one should reconsider, see that we have done nothing wrong to potentially be treated so harshly, and allow our father to stay with us.
We will be grateful if you look into this case with humanity and grant him his stay and if you need further information please do not hesitate to contact us.
Many thanks and kind regards,
Margaret Katanga, Jessica Katanga and [J] Onykwere"
[the letter bears two signatures said to be those of Margaret and Jessica]
"Whilst it is considered that the decision to remove your client to Cameroon will give rise to interference with his rights under Article 8 (and may not be in the best interests of his child), we are satisfied that the interference is in accordance with the permissible aim of the prevention of crime and disorder."
"Paragraph 399(a) of the Immigration Rules specifies the criteria which must be satisfied in order for a parental relationship with a child to outweigh the public interest in deportation in line with Article 8 of the ECHR. The criteria reflect the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom as interpreted in recent case law, in particular ZH (Tanzania). In view of this, consideration has been given to the criteria in paragraph 399(a), and we have reached the following conclusions."
"(d) it is considered that there is another family member who is able to care for [J] in the UK as he is currently living with his mother. [J]'s mother has provided his day to day welfare and support since he was born, before your client started to live with the family, and this will continue to be the case after your client is deported. Your client will be able to remain in contact with [J] from Cameroon via modern channels of communication, such as e-mail, telephone or letter and [J] could visit your client in Cameroon with his mother subject to financial constraints or once he is old enough to travel independently, should he choose to do so."
"Mr Onykwere has lived with his son nearly 5 year old [J], all his life.
I do think there will be an impact on [J's] welfare if he is separated from his father by his removal from the UK. He is part of [J's] day to day life."
"Having considered the factors in your client's case, it is not accepted that his right to family life outweighs the public interest in seeing him deported and therefore your client's deportation would not be in breach of Article 8 of the ECHR."
"54. The Tribunal was struck by the complete absence of any assertions by the appellant of fatherly feelings towards [J], and the fact that the only express involvement in [J's] upbringing which he described was the sort of care (recently provided, evidently in the period when he was waiting for his appeal to be heard) which could equally be provided by a paid child-minder… The Tribunal also noted that the appellant has expressed no concern that his daughter in Cameroon is being brought up in his absence, and evidently considered that the occasional phone call was all that was required on his part to discharge his paternal duties. There is little evidence of any stronger sense of fatherhood, or a genuine wish to be involved, in the case of [J]."
"55. There is little evidence suggesting any well-established private life in the UK, and in any event the appellant is not a witness whose uncorroborated account should be afforded any weight at all… As for ties with his son, other than generalised assertions, the only evidence relates to the appellant helping out on one occasion when the boy's mother was incapacitated, and assisting with childcare and transport to and from the nursery so that his wife can work. Indeed, the main concern expressed appears to be that if he was not available as an unpaid child-minder, his wife might have to give up work. The Tribunal considers that there is no credible evidence supporting any conclusion that there are strong emotional bonds between father and son."
"It is also considered that, whilst your client claims that he pays an invaluable role within his family unit there is no other evidence to corroborate his statement. The supporting letters submitted state that he has a wife and son that he supports, however they do not expand upon this point to indicate how he provides this support. Perhaps more meaningfully there is no supporting statement from his wife to corroborate his statement that he supports her. Although there is a statement that is supposedly written by his step-daughters and son this is only signed by his two step-daughters. It is also noted that it appears to have been written in a rather professional manner that does not suggest it was composed by his step-children or son. It is considered that due to your client's history of using fraudulent documents in an attempt to make gain for himself he may be doing that on this occasion. It is also queried why, if [J] has such a strong bond with his father, he has not provided a letter or drawings to show how he feels about his father and how he would feel when he is removed to Cameroon. For these reasons, when taken into account with the findings of the family life and private life where it is considered unreasonable for a family and private life to be continued elsewhere."
"It is considered that your client has still provided no further evidence to show that his bond with Ms Kalemera and [J] goes further than him living with the family and undertaking day-to-day tasks around the home, however it is noted that they do have a relationship on some level and that his deportation will interfere with this."
"79. All factors mentioned in your letters dated 15 November 2013 and 27 November 2013 have been fully considered in your client's previous appeals and you have produced no new evidence that would alter the Immigration and Asylum Chamber's decision to dismiss your client's appeal.
80. Therefore, having considered the factors in your client's case it is not accepted that the right to family/private life outweighs the public interest in seeing him deported and therefore your client's deportation would not breach Article 8 of the ECHR.
81. As such it is considered by the Secretary of State that, for your client's family/private life human rights, any interference is proportionate in law and in line with the tests in Razgar."
"It is considered proportionate to interfere with your client's family/private life due to his conviction for 3 counts of forging a document."
At paragraph 86 she stated,
"Your client's case has also been considered on an exceptional basis outside of the Immigration Rules, but in view of the fact that no evidence of any exceptional compelling or compassionate grounds has been submitted, the Secretary of State is not prepared to exercise discretion in your client's favour".
At paragraph 87 she expressed her conclusion that the Claimant's deportation would not breach Article 8 or any other human right established by the ECHR or Human Rights Act 1998.
"After consideration of all the evidence available, it has been decided that your client's claim is clearly unfounded as his deportation to Cameroon would not lead to a breach of the United Kingdom's obligations under Article 8 of the ECHR",
and the SSHD certified the decision to refuse to revoke the Claimant's deportation order under section 94(2) of the 2002 Act (so that the Claimant could only exercise his right of appeal outside the UK).
The Fresh Claim and Certification Decision of 3 June 2014
i) A letter from Dr M S Ayub (Restituta's GP) which identified that she was suffering from stress and low mood since November 2013 following her mother falling ill in Tanzania compounded by her husband's detention, that she had two children aged 5 and 16, and that
"as a consequence of her stress she has found it difficult to deal with social matters."
ii) A letter from Mr D. Hennessey, the Headmaster of J's school, dated 22 January 2014, in which he stated:
"Mr Onykwere is very involved in [J's] schooling, attend parent/teacher meetings and brings [J] to school on a regular basis. It has been noted by his teacher that if [J] does not have regular contact with his father, this affects him and it is more difficult to manage his behaviour".
i) A letter from J's GP. Dr S.F.Ahmad dated 12 March 2014, in relation to J which states:
"He is suffering from behavioural problems such as being hyperactive at school and fighting with other children. His father (Jude Onykwere) has been detained at a detention centre for the past 3 months although a request for judicial review has been filed but in the meantime the child's behaviour has worsened. Additionally, [J] has been referred by myself to CAMHS for help with his problems.
It would be beneficial for the child to have regular contact with his father and I would strongly recommend that his father's case is looked at again."
ii) A witness statement from Restituta, which provided, amongst other matters:
"8. My youngest daughter has become very emotional since Jude has been detained. She has been crying, she is more emotional for me. I have had to go to school on two separate occasions to collect her as she has been too emotional to carry on at school. I have been clashing with her as we are both upset about what has happened.
9. Our son [J] behaviour has changed considerably since Jude has been detained. He has been fighting with other children and he has asked to leave lessons. He has been referred by our family doctor for further mental health treatment. [J] believes Jude is at a workshop. He is too young to understand. He does believe Jude will come back to us. I do not want to think how [J's] mental health would be effected.
10. My daughters have a really close relationship with Jude…
…
15. My biggest fear is for [J]. I fear for the problems that I would have raising my boy alone. He has so much potential to be like his sisters and go on to do great things in the United Kingdom. I worry without Jude here to help me the future that I want for my son will be a pipe dream. It is [J's] life that is at risk."
iii) A detailed Medico-Legal Report from Dr Iona Steen in respect of the Claimant dated 19 March 2014. The report largely concerns the mental health of the Claimant but includes some evidence of the relationship between the Claimant and J. For example:
"47. [The Claimant] expressed frequent thoughts and considerable anxiety about his separation from his wife and children. He spoke about being his son's primary care giver (as his wife works). He spoke at length about the distress he feels when his son leaves him after coming to visit him in Brook House. He described great fear about being permanently separated from them.
...
176. From interviewing Mr Onykwere it is clear that the prospect of separation from his son is a particular stressor to his mental state. From the way Mr Onykwere spoke about his son, it appeared they have a strong emotional bond."
iv) A letter dated 7 April 2014 from Kate Fulton of the Sutton & Merton IAPT (Improving Access to Psychological Therapies), part of South West London and St.George's Mental Health NHS Trust, in relation to Restituta, who had self-referred to them having reported (amongst other matters),
"feeling very low, tearful and struggling to cope with day to day things since the detention of your husband and your mother passing away last November".
v) A letter of support from a Mrs Sylvia Platt dated 2 April 2014, who states that she has known the Claimant since 2005, and which refers, amongst other matters, to the fact that the Claimant,
"has been unusually closely involved with the upbringing of his son [J]. He has been his main carer, looking after him when his wife was at work and taking him to school and football academy."
Further letters of support were also enclosed from other people who had known the Claimant, his wife and/or family, which expressed supportive sentiments about the Claimant, his wife and/or the children, specifically from Fran and Ian Tulett dated 28 November 2013, a Maureen Uzouchukwu dated 5 April 2014, Joanne Walfall dated 6 April 2014, Mr and Mrs Gaspary dated 24 March 2014, Pastor Durosinmi-Etti (undated) and Victoria Malinzi (undated).
"Having made a careful and detailed consideration of your client's claims, it is found that his submissions do not amount to a fresh claim, nor do they create a realistic prospect of success at an appeal."
i) Your client's daughter, Chichi, is no longer residing in Cameroon as she has fled to Belgium as she was going to be subject to female genital mutilation;
ii) Your client's step-daughters cannot relocate to Cameroon due to the risk of female genital mutilation.
iii) Your client's wife's mental health has deteriorated since her mother passed away;
iv) Your client's son's mental health has suffered since your client was detained;
v) Your client faces the risk of being tortured or killed upon his return to Cameroon.
"and detention of her husband" in the third bullet point, omits "Applicant's son, [J], performance in school has been affected due to the detention of the applicant. See letter from SS Peter & Paul Catholic School dated 22 January 2014"
and adds in the second last bullet point about J's mental health having deteriorated. At paragraph 35 the SSHD then accurately identified the documents submitted under cover of the letters of 17 February 2014 and 10 April 2014.
"Whilst it is considered that the decision to remove your client to Cameroon will give rise to interference with his rights under Article 8 (and may not be in the best interest of his child), we are satisfied that the interference is in accordance with the permissible aim of the prevention of crime and disorder",
whilst at paragraph 47 the SSHD again accepted that the Claimant was in "a genuine and subsisting relationship with [J]", and that it "would be unreasonable to expect [J] to leave the UK as he is British and he has lived here all his life". However, applying the last criterion in paragraph 399(a) of the Immigration Rules, the SSHD again concluded that there was another family member who was able to care for J namely his mother (paragraph 47(d) which is identical to paragraph 41(d) of the letter of 10 November 2013). The SSHD again also accepted that the Claimant was in a "genuine and subsisting relationship with Jessica", but concluded that "there is another family member who is able to care for Jessica... as she lives with her mother" and Jessica was also "in contact with her biological father who lives in the UK" (paragraph 49 identical to paragraph 43 of the 10 November letter), leading to the same conclusion at paragraph 52, namely
"Having considered the factors in your client's case, it is not accepted that his right to family life outweighs the public interest in seeing him deported and therefore your client's deportation would not be in breach of Article 8 of the ECHR."
Once again there was no reference to the OCC advice of 10 October 2013.
"Your client has provided evidence to show that he lives with Ms Kalemera as his wife and she has provided further information to show that [the Claimant] has helped to raise their family",
and an additional sub-paragraph was added to sub-paragraph (e), addressing the possibility of the Claimant's wife and step-daughters visiting the Claimant outside the UK, and adding,
"Once they are both adults Ms Kalemera could leave her daughters in the UK if she wished and then relocate to Cameroon with her son J to be with [the Claimant]" (paragraph 54(e)).
"89. It is also noted that your client's wife Restituta Kalemera, and son [J] were referred to their GPs whilst your client was in detention. It is noted that your client's son was suffering from behavioural problems and your client's wife was showing signs of depression. You state that your client's separation from the family has brought this about and as such his deportation ought to be reconsidered.
90. It is considered that Ms Kalemera can decide what is best for the sake of her mental health, whether that be to relocate with [J] to Cameroon in order to keep the family unite together or stay in the United Kingdom and seek further help and support from friends, family members and the NHS. As noted above, medication for depression is available in Cameroon should Ms Kalemera choose to accompany your client there and require further treatment. If she decides to remain in the UK then she already has links to the provisions available to her from her local NHS trust, such as the Mood Management Courses at The Wilson Hospital, Mitcham and she has been provided with the telephone numbers for the Samaritans and Crisisline should she need them. It is also considered that if [J] remains in the UK with his mother then he too will be able to access further support from the NHS and his educational provider for any future behavioural problems. He will be able to retain contact with your client via modern means of communication and will be able to visit him in Cameroon with his mother, subject to financial constraints."
"91. The Secretary of State has taken into consideration all the known facts surrounding your client's case and it is concluded that there is no evidence of any exceptional, compelling or compassionate grounds by which your client's claims may be considered to outweigh the public interest whether that be in line with the Immigration Rules or when considered exceptionally outside the Rules. Therefore the Secretary of State is not prepared to exercise discretion in your client's favour."
"Conclusion
92. In conclusion, the Secretary of State is satisfied that all relevant factors have been taken into account in considering your client's further representations and that maintaining the previously certified decision is justified as your client has failed to demonstrate that his rights under Article 8 of the ECHR would be breached or that the decision to deport him is no longer proportionate.
93. Further, the Secretary of State has considered your client's claims and determined that your client's submissions do not amount to a fresh claim nor do they create a realistic prospect of success at appeal in accordance with the test laid out under paragraph 353 of the Immigration Rules.
94. Having given careful consideration to your client's representations the Secretary of State is satisfied that no further immigration decision is required. Hence your client has no right of appeal until he is removed from the UK."
The Claimant's Submissions
"6. Still less does the Claimant's skeleton argument show that there is a real prospect that the Secretary of State might have come to a materially different decision if the Claimant is correct (and he is not) that certain aspects of the Article 8 ECHR analysis relating to his son and step-daughter should have been reasoned more fully in the decisions. The Secretary of State maintains that it is inconceivable that the Claimant could, on appeal to the First-tier tribunal, succeed in obtaining leave to remain in the United Kingdom on Article 8 grounds by virtue of his relationship with his son and step-daughter when the evidence shows that it is only after the Secretary of State decided to deport him that he showed any appreciable interest in his paternal duties to either of them.
7. The evidence that the Secretary of State considered about the Claimant's involvement with his son and step-daughter was superficial and did not show that either of the children had come to depend on him in such a way that his deportation would be a disproportionate interference with his and/or the children's Article 8 rights. There was no prospect of a Tribunal judge concluding that any interference would be disproportionate given the evidence of the lack of care and devotion that the Claimant had shown towards the children historically."
"The Secretary of State's decisions on this issue are not difficult to understand: she was satisfied that the Claimant had a parental relationship with the two children; she was simply not satisfied that the evidence showed a degree of connection and inter-dependence between them that would render the Claimant's deportation disproportionate. Taking the evidence as its highest, it showed a father who had not shown significant interest in either of the children historically, and who had only started to carry out some child-minding responsibilities once a DO had been made against him. In these circumstances, it was rational to conclude that the evidence relied upon was not of such quality as to give the Claimant a prospect of succeeding in any Article 8 claim on appeal, let alone a realistic prospect."
"71. On the Claimant's account the Defendant's finding with regard to the operation of paragraph 399(a(i)m were irrational and unlawful being fixed in reliance upon a series of errors of law and fact which saw her:
(a) record findings which were internally incompatible and which informed consequently the continued unreasonable reliance upon the earlier decision of the FTT;
(b) fail to properly appraise the evidence adduced by the Claimant adequately or at all, and/or in a manner compatible with authority applicable to certification and fresh claim disposals;
(c) fail to consider, or disclose, material facts and guidance material to a proper assessment of both the best interests of the children effected by her decision making;
(d) adhere to a flawed legal approach when determining to exclude the Claimant from the exceptions to deportation contained within her immigration rules."
i) "Acceptance of a Genuine Subsisting relationship" - essentially that having accepted that there was a genuine and subsisting relationship with J and Jessica in the context of the Rules based assessment (for the purpose of para 399(a)(i)(a)) it was not identified by the SSHD why this same evidence was not capable of impacting upon, and arguably being probative of, the Claimant's case that his separation from his children was by 2014 contrary to their best interests and would be disproportionate in the context of the conclusions reached on Article 8 and proportionality outside the Rules.
ii) "Treatment of the evidence going to the strength and nature of the ties" - that the SSHD failed to address or give any adequate reasons in relation to the evidence that the Claimant and Restituta had been co-habiting for 18 months, there was evidence of a real emotional bond with J, that the headmaster's letter of 22 January 2014 showed both a real involvement in J's schooling on the part of the Claimant and the impact on J of the Claimant's detention, coupled with the GP letter from Dr Ahamad as to J's behavioural problems and referral to CAMHS - which on one proper view of the uncontroverted facts disclosed by that evidence sufficed to confound the Defendant's contentions that the findings of the immigration judge recorded as far back as 2012 retained any currency, that the Claimant was characteriseable as no more than a "child minder", and that it could be excluded as unarguable that the effect on severance of the Claimant's family life with his children could not on any legitimate view of the law and facts be characterised as unreasonable.
iii) "Contested evidence" - an attack on the expressed views of the SSHD as to the evidence of Jessica and Margaret in the letter of 1 July 2013, leading to the submission that,
"Given the absence of a sustainable basis for excepting admission of the Claimant's step-daughters evidence then the decision of the Defendant to exclude the same when assessing eligibility, both within and out with the rules obviously operated so as to flaw the decision to certify further, that evidence having corroborative value, emanating from third parties whose testimony had not previously been heard and whose credibility had no where been impugned."
iv) "A generally flawed approach to evidential assessment" - revealing a lack of "anxious scrutiny" - which focussed on the treatment of the evidence concerning Restituta, the Claimant's wife - which was not addressed in the Rules based assessment but only in the context of the SHD's "exceptional circumstance" review.
v) "The exceptional circumstances review" - the evidence relating to Restituta and J's mental and emotional issues was only considered in the context of the exceptional circumstance review where it was appraised imperfectly, superficially and irrationally - leading on to criticism of the matters set out in paragraph 90 of the Fresh Claim and Decision Letter (based on the Claimant's characterisation of what the SSHD was there saying).
vi) "The duty to investigate and undertake considered appraisal" - the margin between the approach adopted to the evidence by the SSHD to the determination of the best interests of a child(ren), and that required by authority - specifically the approach of the Upper Tribunal in JO, supra.
vii) "Non-disclosure by the Defendant" - this related to the failure to disclose or refer to the advice of 10 October 2013 from the Office of the Children's Champion, or the SSHD's GCID records for 2-3 October which revealed the fact of her engagement with Merton Social Services (Mr Jones indicated orally that this latter point was not pursued).
viii) "Ogundimu and the alternative carer test" - that the whole assessment of the best interests, and appraisal of impact on J and Jessica was profoundly compromised by the Defendant's determined adherence to an immigration rule which fails on authority to deliver proper recognition of the best interests of a child in all events" it being alleged that the SSHD did not undertake a best interests assessment which properly accorded the rights of children with the status of a primary consideration, the separate consideration under Article 8 being substantially flawed. Thus it was submitted at paragraph 137 of the Claimant's Skeleton Argument,
"...the Defendant nowhere reappraised the public interest in deportation in the course of her 2013 and 2014 decision as against the new evidence establishing genuine and subsisting relationships with his children and lack of re-offending."
i) The best interests of the children were assessed by reference to paragraphs 398 and 399 of the Immigration Rules, and in doing an exceptional circumstances review outside of the Rules the SSHD did not identify, or have regard to the fact, that the children's interest were primary, nor did she evaluate the public interest against the changed circumstances concerning the children.
ii) That it was illogical for the SSHD to find that the Claimant had a genuine and subsisting relationship with both the children but then conclude that the Claimant lacked sufficient emotional ties so as to lead to a potentially good Article 8 claim, or at least that on one reasonable and legitimate view of the evidence, another decision maker could conclude that there was a significant relationship with the children, and reach a different outcome in the light of such conclusion.
iii) That the SSHD adopted an unfair or cursory approach to the step-daughters' letter of 1 July 2013.
iv) That the SSHD had not considered the wife's latest statement dated 8 April 2014.
v) That the SSHD failed to contemplate the anticipated deterioration in the wife's mental health or behaviour of J.
vi) That the SSHD should have engaged with the views expressed by the Office of Children's Champion.
vii) That in the context of the new evidence and the best interests of the children (Jessica as well as J) the SSHD should have reappraised the public interest in deportation against the best interests of the children.
viii) That there was an inconsistency in para 90 of the Fresh Claim and Decision Letter in the SSHD advocating that the wife, son and step-daughters relocate to Cameroon given that the SSHD had accepted that it was not reasonable for the son J to do that.
Discussion
"58. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded."
"398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
[…]
(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; […]
[…]
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."
"399. This paragraph applies where paragraph 398(b) or (c) applies if
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British citizen; […]
and […]
(a) it would not be reasonable to expect the child to leave the UK; and
(b) there is no other family member who is able to care for the child in the UK."
"It would be unduly harsh for a child to remain in the United Kingdom without the person who is being deported".
Given that paragraph 399 did not apply, under paragraph 398 it would only be in exceptional circumstances that the public interest in deportation would be outweighed by other factors.
"no further evidence to show that [the Claimant's] bond with Restituta and J goes further than him living with the family and undertaking the day to day tasks around the home"
although it was noted (consistent with the evidence) that
"they do have a relationship on some level and [the Claimant's] deportation will interfere with this." (paragraph 75).
"Mr Onykwere has lived with his son nearly 5 year old, [J] all his life. I do think there will be an impact on [J's] welfare if he is separated from his father by his removal from the UK. He is part of [J's] day to day life."
The SSHD did not disagree with that, and in such circumstances there was no reason or need to refer to it. She recognised that the Claimant had a genuine and subsisting relationship with J (para 41) and had noted that deportation may not be in the best interest of J (para 34). However the role of the SSHD (unlike the OCC), was to undertake a consideration of Article 8 and address the question of proportionality. This was something she did.
"11. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."
i) I agree that in relation to the Fresh Claim and Certification Decision, and when doing an exceptional circumstance review outside the Rules the SSHD did not give any, or any proper, consideration to the new material and how it impacted upon the question of the primary interest of the children, when weighing those interests against the public interest when considering whether the claim was clearly unfounded. In the light of that material, as at 3 June 2014, on at least one legitimate view of the facts or the law, the claim might succeed and the claim was not clearly unfounded.
ii) I do not consider that there any illogicality, in the context of the Certification Decision, in the SSHD finding that the Claimant had a genuine and subsisting relationship with both the children but then concluding that the Claimant lacked sufficient emotional ties so as to lead to a potentially good Article 8 claim. However, on the facts of this particular case, as at the time of the Fresh Claim and Certification Decision, the SSHD failed to have any or any adequate regard to the new material and what it revealed as to the ties between the Claimant and his son and the impact on his son of deportation, such that as at 3 June 2014, on at least one legitimate view of the facts or the law, the claim might succeed and the claim was not clearly unfounded.
iii) I do not consider that the SSHD adopted an unfair or cursory approach to the step-daughters' letter of 1 July 2013 in the Certification Decision. However even if her approach to this letter could be criticised I do not consider that this letter makes any difference, as based on the evidence at the time of the Certification Decision, the claim was clearly unfounded.
iv) I consider that the SSHD did consider the wife's latest statement dated 8 April 2014, but did not follow through the implications of this in terms of the best interests of J and Jessica. This is, however, only one aspect of the new evidence. The more important aspect of the further material was the independent corroborative and substantive evidence of the headmaster and GP when considering the best interests of J.
v) I consider that the SSHD did contemplate the anticipated deterioration in the wife's mental health and behaviour of J (at least in terms of how those matters could be treated in the future), but did not fully address the implications of such matters in terms of the best interests of J and Jessica.
vi) I do not consider that the Claimant has any valid complaint in relation to the SSHD's treatment of the views expressed by the Office of Children's Champion, for the reasons I have given.
vii) I have addressed in my judgment above, the SSHD's failure to consider the impact of the new material on the best interests of the children (which would be weighed against the public interest in deportation).
viii) There was no inconsistency in paragraph 90 of the Fresh Claim and Decision Letter. The Claimant's submission misinterprets paragraph 90. The SSHD was not advocating that the wife, son and step-daughters relocate to Cameroon. She was simply noting that they might elect to do so.
ix)