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IAC-FH-KH-V1

Upper Tribunal(Immigration and Asylum Chamber) Appeal Number: IA/13542/2009

THE IMMIGRATION ACTS

Heard at Manchester Determination

PromulgatedOn 15th November 2010 On 10th December 2010

Before

SENIOR IMMIGRATION JUDGE TAYLORSENIOR IMMIGRATION JUDGE C N LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellant

and

[ ]

Respondent

Representation:

For the Appellant: Mr Barnes, instructed by the Treasury SolicitorFor the Respondent: Ms Vidal of Counsel instructed by Duncan Lewis & Co.Solicitors

DETERMINATION AND REASONS

CROWN COPYRIGHT 2010

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Appeal Number: IA/13542/2009

1. This is the Appellants appeal against the decision of DesignatedImmigration Judge McClure made following a hearing at Manchester on 3rd

November 2009. The Designated Immigration Judge allowed theRespondents appeal against the decision of the Appellant made on 29th

June 2009 to give directions for his removal from the UK.

Background

2. The Respondent is a citizen of Iraq born on 1st January 1978. He arrived inthe UK on 31st January 2001 concealed in the back of a lorry aftertravelling through Turkey and claimed asylum on the same day. His claimwas refused on 18th July 2001 and a subsequent appeal dismissed on 12th

November 2002.

3. The Respondent was detained on immigration matters on 17th October2008. On 22nd October 2008 the Appellant decided to issue removal

directions against him, and on 9th March 2009 permission was granted tothe Respondent to pursue an application for judicial review against thatdecision. The removal directions were cancelled but the Respondentremained in custody on immigration grounds until granted bail on 17th

April 2009. A further decision to remove was made on 24th April 2009.

4. On 11th June 2009 the Respondents appeal came before ImmigrationJudge White. He recorded that both advocates accepted that the decisionof 24th April 2009 was not in accordance with the law because the decisionof 22nd October 2008 was still extant and the judicial review proceedingswere unresolved. Immigration Judge White allowed the Appellants appeal

to the extent that the matter be remitted to the Respondent to make alawful decision.

5. The judicial review proceedings were compromised in a consent orderdated 4th June 2009.

6. The final decision and the subject of the appeal before DesignatedImmigration Judge McClure was made in a Notice of Decision dated of 29th

June 2009. The Respondent had been required to leave the UK by 28th

November 2002 and had no basis of stay here. It was the Appellants casethat the Respondents criminal behaviour justified his removal to Iraq.

7. The Respondent appealed on the grounds that the decision to remove himwas unlawful as a breach of his rights under Article 8 of the ECHR.

The Appellants Criminal History

8. The Respondent has committed a number of criminal offences during histime in the UK. On 4th September 2002 he was cautioned for criminaldamage.

9. On 10th December 2003 he was convicted and sentenced to two

concurrent terms of four months imprisonment for criminal offencesincluding driving a motor vehicle whilst disqualified, driving without

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insurance and failing to stop following a road traffic accident. In thatincident a young girl, [ ], was killed.

10. On 22nd December 2003 the Respondent was convicted of a furtheroffence of driving whilst disqualified, driving whilst uninsured and driving

without a valid test certificate on an occasion other than when theaccident in which [ ] died occurred.

11. On 15th August 2004 he was cautioned for possession of cannabis.

12. On 16th August 2005 he was cautioned for burglary and theft.

13. On 4th August 2006 the Respondent was again convicted for driving whilstdisqualified and whilst uninsured and ordered to serve a two yearCommunity Supervision Order.

14. On 13th

March 2009 he was convicted of offences of harassment, damageto property and theft and was fined.

The Respondents Family Life

15. The Respondent resists removal on the grounds that this would bringabout an infringement of Article 8. He says that he commenced arelationship with a British national, [ ], in or about June 2003 and theystarted living together from September 2003. [ ] has two children byher previous marriage, now aged 11 and 12 and they have not had anycontact with their biological father since 2002. The Respondent and [

] have two children of their own, [ ] and [ ], who are now aged 4and 3. The Respondent says that he lives with [ ] and the four children,and that he enjoys a close and loving relationship with them which wouldbe severed if he was removed to Iraq.

The Designated Immigration Judges Determination

16. The Designated Immigration Judge recorded the evidence concerning therelationship between the Respondent and [ ]. It was the Appellantscontention as set out in her letter of 29th June 2009 that the Respondentdoes not enjoy family life in the UK. It was accepted that he was the

biological father of [ ] and [ ] but it was noted that the birthcertificate for [ ], who was born on 11th May 2006, showed [ ]sresidence as being different to [ ]s. This undermined her statementthat she started cohabiting with him around September 2003. Whilst [ ]sbirth certificate (she was born on 14th September 2007) gives the sameaddress for both parties, the Appellant doubted the Respondents claimconcerning the length of cohabitation and the level of emotional andfinancial support which the Respondent provides for [ ] and thechildren.

17. It was not accepted by the Appellant that the Respondent had shown that

there was a subsisting relationship with [ ]s children from a previousrelationship although it was recorded at the time he was taken into

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custody by Immigration Officers all four children were present at [ ]saddress. The Appellant noted that the only documentary evidence whichhad been provided in support of the claimed cohabitation was the [ ]Estates tenancy agreement which both parties signed for a fixed term sixmonth agreement on 15th July 2008. The first payment for rent was six

months after the date when [ ] alleged that she had begun residingwith the Respondent at that address. The supplementary unsigned letterfrom [ ] Estate Agents implied that the family were living together for sixmonths prior to the tenancy agreement being signed but in any eventeven if the couple were living at that address from 14th January 2008 giventhat [ ] was detained in October 2008 he could only have resided atthe property for a maximum of six months.

18. The Appellant noted that the Respondent had failed to providedocumentary evidence such as utility bills, joint bank statements, counciltax statements and tenancy or mortgage agreements dating back to when

cohabitation was said to have begun.

19. The Appellant recorded the Respondents claim to marriage with [ ] inaccordance with Islamic law on 15th July 2004 but he had failed to providean Islamic marriage certificate to prove that the marriage had taken place.In any event even if he had entered into such a marriage it was not a civilmarriage ceremony recognised by immigration laws governing the UK.

20. The Designated Immigration Judge had some concerns over theRespondents and [ ]s evidence. He noted that there werediscrepancies in the oral evidence in relation to the claimed religiousceremony of July 2004. During the course of the hearing a religiouscertificate of marriage was produced by the Respondents representativerelating to a ceremony taking place in Nelson, Lancashire, on 2nd October2009. The Designated Immigration Judge said that he took account of thewitnesss failure to mention any of the details of the marriage in Nelson,Lancashire, and concluded that there was much about the evidence whichwas unsatisfactory and contradictory. For example he said that thesuggestion that the Respondent helped the older children with homeworkwas clearly not credible because he admitted that he had very limitedability in English. He therefore approached the evidence with great

care.

21. He found however that, having considered all of the circumstances, thecouple had had a relationship which had lasted over a number of years,they had lived together over a number of years apart from periods whenthe Respondent has had to live elsewhere, in part to protect [ ] and thechildren from harassment, and concluded that the Respondent had provedthat he had established a private and family life in the UK.

22. The Designated Immigration Judge took account of the criminalconvictions of the Respondent, the most material being the tragic incident

in which the young girl died. He said that had steps been taken to removethe Respondent shortly after that incident there would have been limited

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prospects of him succeeding. He recorded that the circumstances inwhich the Respondent left a young girl trapped under a car were serious.At that time there was little by way of private and family life that couldhave been set against his criminality and his immigration status for thepurposes of striking the balance under Article 8. However, several years

had passed since that incident in which the Appellant took no steps toremove him. During that time the Respondent developed a family life with[ ]. He said that the interests of all four children were of greatsignificance. They are British citizens settled in the UK and their wholelives have been here. He recorded that he had to take account of the bestinterests of the children in assessing the proportionality issue andaccepted they could not be expected to leave the UK to move and live inIraq. He concluded as follows,

I find that the Appellant has developed a significant and substantial relationshipwith those children and that the Appellant is acting as a father within the family

unit. I do find that the relationship between the Appellant and [ ] is a substantialand significant relationship akin to marriage. I do not find that they have provedthat they went through any religious ceremony in Birmingham. However I amsatisfied that the relationship is of such significance that can genuinely becharacterised as family life and that the best interests of the children is such thatthe Appellant should not be removed from the UK. Were it not for the children myview with regard to the matter may be [sic] different. However I find that thedisruption and interference in the family lives of the children and therefore of theAppellant and [ ] would be of such significance that it is not proportionallyjustified to remove the Appellant from the UK.

23. On that basis he allowed the appeal on human rights grounds.

The Grounds of Application

24. The Appellant sought permission to appeal on three grounds.

25. Firstly the Designated Immigration Judge had failed to provide adequatereasons for finding that the Respondent enjoyed family life with [ ] andthe children. Secondly, that the Immigration Judge failed to have fullregard to the evidence of criminality as part of the proportionalityassessment and thirdly he applied an incorrect test thereby creating anartificially high threshold for the Secretary of State to make out his case.

26. Permission to appeal was granted by Senior Immigration Judge Warr on 4th

March 2010 for the reasons stated in the grounds.

27. On 12th November 2010 the Respondents representatives served a Replycontending that there was no error of law in the decision, in particulararguing that there was no misdirection in law and that the DesignatedImmigration Judges determination was in line with the leading jurisprudence, specifically the recent decision of LD (Article 8 - bestinterests of child) Zimbabwe [2010] UKUT 00278.

Submissions

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28. Mr Barnes relied upon his grounds and the skeleton argument which hehad produced for the hearing and on the case of Chikwamba v SSHD[2008] UKHL 40.

29. With respect to Ground one Mr Barnes acknowledged that the hurdle

which he had to cross in order to challenge the Designated ImmigrationJudges findings of fact was a high one, namely that his conclusions wereones simply not open to him on the evidence. However, he submitted thatthis could be established in the present case. He noted the findings (asset out in paragraphs 102 and 111 of the determination) that theRespondent enjoyed a subsisting relationship with [ ] and the childrenover a long period of time. However, Mr Barnes submitted that there wereonly two facts which the Designated Immigration Judge could draw on inorder to support this conclusion, namely that there were two children whowere biologically his and that at the time of his arrest he was living with [] and her family. Against that the Immigration Judge recorded that the

Respondent did not refer to his relationship with [ ] until after hisarrest in October 2008 and there was no documentary evidence in supportof his claim. The birth certificate for [ ] showed that at that time thecouple were living at different addresses. Furthermore Mr Barnessubmitted that the couple had produced misleading evidence concerningtwo religious marriage ceremonies. The Immigration Judge had not saidwhy he had concluded at paragraph 111 that there was a significant andsubstantial relationship with the children of [ ]s first marriage. Indeedthe only observation he had made in relation to that claimed relationshipwas his rejection of the Respondents evidence that he helps them with

their homework. Any reasonable Immigration Judge, Mr Barnes submitted,would be driven to observe that there was an evidential lacuna in theevidence and in these circumstances it was not open to him to reach theconclusion which he did on the basis of the evidence which he hadaccepted. The only reasonable conclusion, Mr Barnes submitted, whichcould have been reached was that the Respondent had two children, oneof whom had been born when he was living apart from [ ] and thatthey were together at the time of the arrest.

30. With respect to Ground two, Mr Barnes reminded the Tribunal of theRespondents criminal history which demonstrated a persistent pattern of

offending over a wide range of offences, namely driving, drugs, propertyand public order offences. Central of course to the Appellants case wasthe incident in 2003 in which [ ] died. The Designated ImmigrationJudge, in Mr Barnes submission, appeared to have been taken with the factthat the Respondents driving was not criticised but he had failed toappreciate that the Respondent simply should not have been driving at all.He was disqualified. He had no insurance. Neither did he learn his lessonsince he was convicted again of the same offence in 2006. Mr Barnesacknowledged that the Designated Immigration Judge did say that theRespondents behaviour was abhorrent and it was not argued that he hadfailed to appreciate the gravity of his offence. However it was submitted

that he had not properly taken into account the breadth and pattern of theRespondents offending behaviour. In this case, Mr Barnes submitted,

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there was a pressing public interest in the Respondents removal to whichthe Designated Immigration Judge had given insufficient weight.

31. Finally Mr Barnes argued that the Designated Immigration Judge had failedto appreciate the Appellants position. It was not that it would be

reasonable for [ ] and the children to relocate to Iraq with theRespondent. The Appellants case was simply that the Respondent shouldreturn alone to Iraq in order to apply for entry clearance to return to theUK. In the decision letter of 29th June 2009 the Appellant made clear thatit was her position that it was proportionate to require the Respondent toreturn to make an application for entry clearance if he wished to return tothe UK. The Appellants view was that the effect of separation betweenthe Respondent on the one hand and [ ] and the children on the other,whilst the Respondent applied for entry clearance at the consulate sectionin Amman, was not a sufficiently compelling reason to allow him to remainin the UK. Because the Judge appeared to be of the erroneous view that

the Appellant expected [ ] and the children to relocate to Iraq hefailed to direct himself to the actual proportionality assessment that wasnecessary in this case.

32. Mr Barnes relied on Chikwamba which had to be properly considered andanalysed and the Designated Immigration Judge, he said, manifestly didnot do so. Chikwamba had held that there were exceptional cases in whichan Article 8 appeal be dismissed on the basis that it would beproportionate and more appropriate for the Respondent to apply for leavefrom abroad. This was one such case. The point was plainly material. Had

he properly directed himself, the appeal, Mr Barnes submitted, would havebeen dismissed since the evidence of family life was notably weak, therewas no good explanation for the lack of supportive evidence and theRespondents account was riddled with inconsistencies. Whilst there weresome elements of family life his starting point should have been that itwas limited.

33. The disruption involved to that family life would, Mr Barnes submitted, befor a limited period. The Respondent had a very poor immigration historyand at no time had attempted to regularise his status. The fact that theAppellant had not sought to remove him was not an argument in his

favour. The Respondent had spent his time in the United Kingdomrepeatedly committing criminal offences some of which might well giverise to the risk of imprisonment and he had thereby put his family life atrisk by his own conduct.

34. Following a question from the Tribunal Mr Barnes acknowledged that theRespondent might face a refusal of entry clearance under paragraph 320(19) of HC 395 of the Statement of Changes in the Immigration Ruleswhich provides that entry clearance should normally be refused wherefrom information available to the immigration officer it seems right torefuse leave to enter on the ground that exclusion from the UK is

conducive to the public good; if, for example, in the light of the characterconduct or associations of the person seeking leave to enter it is

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undesirable to give him leave to enter. However he submitted that no suchrefusal could be assumed and in any event it was appropriate that theRespondent go through the proper procedures.

35. Ms Vidal submitted that there was significant evidence before the

Designated Immigration Judge to support his conclusions that there wasfamily life in this case. He had summarised the issues which concernedhim and stated that he had considered the evidence with great care. Heknew exactly what he was dealing with and addressed the issues whichcaused him concern. The birth certificate for the youngest child had givenhim and his partner as living at the same address in 2007 which was priorto the arrest in 2008. Ms Vidal pointed out that before the DesignatedImmigration Judge there was substantially more evidence than Mr Barnesssubmission suggested. He had witness statements from the Respondent,from his partner and from his mother-in-law. [ ]s older children spoke inglowing terms of the Respondent as a father. He had also produced

numerous photographs of himself with them as a family. There were alsoletters from other family members and friends in support. Moreover hispartner and the children had been in court at the hearing before theImmigration Judge in June, at the hearing before the DesignatedImmigration Judge in November and were here again today.

36. The Appellant, she said, was fixed on the idea that there had been nodocumentary evidence to show where the family was living at any giventime. Firstly cohabitation was not necessary to establish family life, butmore importantly the Appellant had not recognised the difficulties of

establishing the trappings of residence where an Respondent has nostatus. It was not, for example, possible to set up a bank account or toprovide wage slips since he was not entitled to work. Given hisimmigration status it was not surprising that there were no utility accountsin his name.

37. With respect to grounds two and three she submitted that theRespondents criminal convictions were uppermost in the DesignatedImmigration Judges mind and formed a significant part of his analysis. Hewas well aware of the pattern of reoffending and condemned his conduct.He was entitled to observe, however, that there was no allegation of

dangerous or careless driving in relation to the central incident, namelythe accident in which [ ] died, described by Counsel as an awfultragedy and one of which the Designated Immigration Judge was wellaware.

38. Ms Vidal submitted that there was no misdirection in law with respect tohis reference to the best interests of the children, an approach which hadbeen endorsed in a number of decisions of the House of Lords and mostrecently by the President in LD. The interests of the children were at thecentre of this appeal. She submitted that the Designated ImmigrationJudge had said that if it was not for them the appeal would have been

dismissed and this was the correct approach. She acknowledged thatthere was no reference in the determination to the possibility of the

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Respondent returning to apply for entry clearance but submitted it was notmaterial. Overall this was a fully sustainable decision.

The Hearing

39. Following submissions we retired briefly and during that period wereinformed by the Clerk that [ ]s father wished the Tribunal to consider aletter which he had prepared.

40. Following the resumption of the hearing Mr Barnes told the Tribunal thathe had advised [ ]s father that his letter would not be relevant to theTribunals considerations and indeed that if the Tribunal made reference toit that might be a ground of appeal should the Appellants challenge to theDesignated Immigration Judges decision be successful. Nevertheless hesubmitted that it would be lawful for the Tribunal to look at it.

41. Ms Vidal submitted that it would be wholly inappropriate for the Tribunal tolook at the letter which had not been before the Designated ImmigrationJudge on the day.

42. We have great sympathy for [ ]s family; we recognise that theseproceedings are uniquely painful to them. Nevertheless our sole task inthis appeal is to decide whether the Designated Immigration Judgesdecision contains a material error of law, that is whether he was entitled toreach the decision which he did for the reasons which he gave. The letterwas not part of the evidence before him, was not referred to in thegrounds and was therefore unlikely to be relevant to the issue we must

address. It appeared to us, however, that we should read it and we did so.It emphasised the strong feelings of [ ]'s family but raised no relevantissues of which we had not already been made aware. We observe thatthe full text of the letter appeared in a number of national newspapers onthe day after the hearing.

43. At the resumed hearing we advised the parties that we found no materialerror in the Designated Immigration Judges factual findings on theexistence and extent of the Respondents family life but we reserved ourdecision in respect of Grounds two and three. We invited furthersubmissions.

44. Mr Barnes relied on his previous submissions.

45. Ms Vidal reminded the Tribunal that the Appellant had made no attempt toremove the Respondent until October 2008 and whilst the Respondent hadstayed on after his appeal rights had been exhausted, he had not soughtto use any other identity nor made a fresh asylum claim and there were noadditional offences other than those before the Tribunal.

Findings and Conclusions

(1) Family life

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46. Mr Barnes reminded the Tribunal that the birth certificate for one of thechildren indicated that they were not living together around the time of hisbirth, that there were discrepancies in the claimed length of therelationship, that the claim was unsupported by documentary evidenceand that the Designated Immigration Judge had rejected key elements of

the Respondents claim. The Judge had reached a conclusion not open tohim on the evidence. Indeed it was said that the only reasonableconclusion of the Designated Immigration Judge was that the Respondentwas the biological father of two children and that at the time of his arrestin October 2008 he was living together with them and [ ].

47. The evidence before the Designated Immigration Judge was as follows. There were witness statements from the Respondent, from [ ] andfrom her brother, [ ], all of whom gave oral evidence. There were alsoletters in support from the two older children [ ] and [ ] and from hismother-in-law. There was also evidence from other friends and family

members, and evidence from Housing Association in respect of the jointtenancy. All confirmed that the family lived together.

48. The Appellant argued that it was very difficult to understand why theRespondent had developed a significant relationship with the olderchildren given that the evidence that he helped them with theirhomework was rejected. However those children had both written to thecourt stating that they first met the Respondent in 2003 and that theylived together as a family. The Designated Immigration Judge found thatthe Respondent had exaggerated the extent to which he helped the older

children with their homework but given that there is no evidence that [ ]has ever lived apart from her two older children and that the couple wereliving together, even on the Appellants case, at least since 2007 it isdifficult to see how the conclusion that the Respondent enjoyed asubstantial relationship with the older children can be impugned.

49. The Designated Immigration Judge recorded the Appellants concerns andin particular the lack of documentary evidence supporting the claimedcohabitation. There may well be good reason why it is difficult forsomeone in the Respondents position to provide documentary evidence ofcohabitation. He noted the fact that the Respondents address was given

as different from that of [ ] in [ ]s birth certificate but it was alsoapparent from the determination that there had been a high level of publicanger in relation to this case and that the Respondent has sought toprotect [ ] and the children from the effects of that anger. Indeed, giventhat a year before his arrest the Respondent was shown as living at thesame address on the birth certificate of his second child and that he is thefather of a child born in 2006 it is hard to understand how it can properlybe said that the Designated Immigration Judges conclusion that there wasfamily life in the UK was not properly open to him.

50. It seems to be the Appellants position that the Designated Immigration

Judge should have found that family life exists but is limited. Family life isassumed between the Respondent and his two biological children. If it is

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limited in the sense that the couple are not married then that is no bar tothe existence of family life. If it is said that family life is limited to theextent that there is a lack of commitment between the Respondent and [], that is an argument which is difficult to sustain since [ ] has shownunwavering loyalty to the Respondent in extremely difficult circumstances.

51. The Designated Immigration Judge correctly reminded himself that, havingfound the Respondent not to be credible in all material respects, he shouldapproach the evidence of the relationship with great care. He hadconcerns over some elements of the evidence in particular in relation totwo religious ceremonies said to have taken place in 2004 and 2009.Indeed, he concluded that they had not shown that they went through anyreligious ceremony in Birmingham. He said that the fact that theRespondent and [ ] had not told him the truth in certain respects may beseen as a deliberate attempt to mislead the Tribunal and give substanceto a relationship which has none. Alternatively it could be viewed as a

desperate attempt to give greater substance to a real relationship byindividuals who misguidedly believed that it will enhance the Respondentsprospects of remaining in the UK. There is no error in that approach. It issimply a statement of the obvious, namely that it could be concludedeither that the Respondent was being wholly untruthful or that he hadsought to enhance a claim which nevertheless had substance. He wassimply outlining the task of a fact finding Tribunal, namely to reach adecision on the evidence as to where the truth lies. There is no error inrespect of ground one.

(ii) Striking the balance

52. With respect to ground two, our decision is that the Appellant has notmade out her grounds. Mr Barnes made it clear that he accepted that theDesignated Immigration Judge very properly acknowledged the force ofthe central issue in this case, namely the Respondents involvement in andthe extent of his responsibility for the accident in which [ ] died. He saidthat the Designated Immigration Judge failed to appreciate theAppellants concern that the Respondent simply should not have beendriving at all. However that is not right. He stated in terms at paragraph30 that the Respondent clearly should not have been driving.

53. The Respondent received a four month prison sentence for driving whilstdisqualified and for leaving the scene of the incident. That was theprosecution's response to the offences which had been committed. Wecannot and do not seek to go behind the prosecution decisions which weremade at that time. At that time it was clear that no other charge waspreferred.

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54. The Respondent should not have been driving the car at all and it was hiscriminal conduct in disregarding the disqualification from driving, apenalty imposed both to punish previous offending and to protect thepublic, which resulted in the death of the child. It follows therefore that hewas responsible for [ ]'s death. However when assessing the weight of

that fact in the context of this appeal it is essential to remember thatthose responsible for taking decisions relating to prosecutions in the publicinterest concluded that he bore no criminal responsibility in terms of themanner of his driving. Whilst the Respondent was clearly culpable in thesense that he was driving when he should not have been, that culpabilitymust be seen in this context.

55. The sentence reflects the crimes which were committed. It does not and ofcourse cannot reflect the fact that [ ] was killed. We ourselves have theutmost sympathy with her family and cannot begin to understand the painwhich they continue to suffer. However it is the task of law enforcement

officers and the criminal courts, and not members of the public, howeverclose they may be, to decide on whether an offence has been committedand if so which offence and what the relevant punishment should be. TheDesignated Immigration Judge was entitled to place weight on the factthat had the Respondent been culpable in terms of having drivencarelessly or dangerously then he would have been charged and ifconvicted punished for those offences.

56. The Appellants present complaint is that the determination did not payproper regard to the persistence and extent of the Respondents

offending. It is right to say that the Respondents record is poor. He hascommitted a number of different offences over a broad spectrum for anumber of years and as a result has been imprisoned, cautioned, beenplaced on a two year Community Supervision Order and been fined. Butthe Designated Immigration Judge was clearly fully aware of the pattern ofthe Respondents behaviour. Indeed he specifically stated that theRespondent continued to commit criminal offences including drivingoffences after [ ]s death and the claim that he altered his behaviourthereafter rang hollow. The Respondents persistence in his offendingbehaviour after [ ]s death gives rise to deep-seated andunderstandable anger not only from her grieving parents but also the

public more generally. His conduct is indefensible and his presence herecontinues to give pain to [ ]s family. However the Judge was fullycognisant of that fact.

57. It was argued in the original grounds, although not at the hearing, that theDesignated Immigration Judge erred in stating that he had to take intoaccount the best interests of the children in assessing proportionality andthat the required test was a balance between the rights of the family unit,including the children, and the duty of the government to enforceimmigration control. The Upper Tribunal in the case of LD made it clearthat the best interests of the children are always a relevant consideration

in an Article 8 case, and that is all that the Judge said. He did not say that

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the best interests of the children would always be decisive and wouldthereby always take precedence over the public interest in removal.

58. Essentially ground two amounts to a disagreement with the decision butdoes not establish an error in law. It was for the Designated Immigration

Judge to strike the balance and nothing put before us shows that he wasnot entitled to reach the conclusion that he did

59. Ground three is that the Designated Immigration Judge did not properlyconsider the case on the basis that it was put, namely that it would beproportionate for the Respondent to return to Iraq to make an applicationfor entry clearance in the proper manner and that in the light of hisoffending behaviour any temporary separation from [ ] and thechildren would be proportionate. It was clear from the letter of 29th June2009 that it is the Appellants position not that it was reasonable to expect[ ] and the children to relocate to Iraq but that the Respondent should

be expected to return there alone to make his application for entryclearance and that any temporary separation would be proportionate.This was not considered in the determination at all.

60. In Chikwamba the House of Lords stated that the objective of maintainingand enforcing immigration control was undoubtedly a legitimate aim andthat the real rationale for the policy of requiring persons in the UK toreturn to their home country in order to apply for entry clearance was saidto be justified by deterring people from coming to this country in the firstplace without having obtained entry clearance and to do so by subjectingthose who do come to the very substantial disruption of their livesinvolved by returning the abroad.

61. Lord Brown stated at paragraph 42 that

Now I would certainly not say that such an objective is in itself objectionable.Sometimes I accept that it will be reasonable and proportionate to take that course.Indeed Ekinci still seems to me just such a case. The Appellants immigrationhistory was appalling and he was being required to travel no further than toGermany and to wait for no longer than a month for a decision on his application.Other obvious relevant considerations will be whether for example the applicant hasarrived in this country illegally (say concealed in the back of a lorry) for good reasonor ill. To advance a genuine asylum claim would of course be good reason. To

enrol as a student would not. Also relevant would be for how long the Secretary ofState has delayed in dealing with the case see in this regard EB (Kosovo) v SSHD[2008] UKHL 41. In an Article 8 family case the prospective length and degree offamily disruption involved in going abroad for an entry clearance certificate willalways be highly relevant. And there may be good reason to apply the policy if theECO abroad is better placed than the immigration authorities here to investigate theclaim, perhaps as to the genuineness of a marriage or a relationship claimedbetween family members, less good reason if the policy may ultimately result in asecond Section 65 appeal here with the Appellant abroad and unable, therefore, togive live evidence.

62. Lord Brown stated that it seemed to him that only comparatively rarely,

certainly in family cases involving children, should an Article 8 appeal bedismissed on the basis that it would be more proportionate and more

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appropriate for the appellantin that case to apply for leave from abroad.This point was not considered by the Designated Immigration Judge andwe therefore consider it for ourselves.

63. [ ] came to the UK in 2001 to seek asylum. His claim was found not to

be credible and that he would not be at risk on return. The Respondenttherefore did not come to the UK for a good reason. On the other handmany Article 8 appeals involve persons who have been found not to be inneed of international protection and that factor in itself would not take theRespondent into the category of cases involving families where removal toapply for entry clearance would be proportionate.

64. There is no good reason why the Entry Clearance Officer Amman would bein any better position to assess the merits of the Respondents case thanthe Tribunal.

65. Moreover there has been a substantive delay in this case. In EB (Kosovo)[2008] UKHL 41 the House of Lords considered in what ways delay mightbe relevant. Firstly, Lord Bingham stated that the Respondent mightdevelop closer personal and social ties than he could have shown earlierand the longer the period of the stay the likelier this is to be true.Secondly, any relationship which he enters into is likely to develop fromthe shadow of severance by administrative order into an expectation thatif the authorities had intended to remove the Respondent they would havetaken steps to do so. Thirdly delay might be seen as evidence of theresult of a dysfunctional system which leads to unpredictable inconsistentand unfair outcomes. All of these factors have relevance to theRespondent's case and go to his favour

66. The Appellant argued in the grounds that in Chikwamba the personbenefiting from the proportionality assessment was a passive person towhom things had happened and in this case the Respondent had adoptedan active role in wilfully repeating criminal offences. It is right that so faras the Respondent himself is concerned he has brought his misfortunesupon himself. However this submission misses the essential point that it isnot only the Respondent's rights which have to be considered here butalso those of [ ] and the children.

67. If the Respondent did return to Iraq and applied for entry clearance fromAmman it is said that he may be faced with a refusal under paragraph320(19). This is an argument in favour of his removal. The Respondentcannot rely upon his own criminality as an argument for remaining in theUK and not being subject to the normal rules governing entry clearance.

68. On the other hand the Court of Appeal held in MA (Nigeria) v SSHD [2009]EWCA that in assessing whether the removal of an illegal immigrant wouldbreach his rights to family life regard must be had to the length of timerequired to elapse by paragraph 320 (7B) of the Immigration Rules before

he would be allowed to return. Paragraph 320 (7B) is of course a

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mandatory refusal and any potential refusal under paragraph 320 (19) isdiscretionary.

69. It is not for us to try to second guess whether the Respondent would infact be refused entry clearance on return and therefore we make no

observations about the length of time which the children would beseparated from their father save to say that it must be at the very leastuncertain.

70. The position in this case, however, is that the Respondent has establishedthat he has a right under Article 8 to be in the UK because of the family lifedeveloped between him, [ ] and the four children. It follows that, quiteregardless of the Immigration Rules, refusing him entry clearance, in orderto exercise that right would be unlawful as a breach of the Article 8 rightsof all of them. In those circumstances it is difficult to see what relevancethere can be in discussions about the exclusionary provisions of the

Immigration Rules. It is also difficult to see what useful purpose could beserved by requiring the Respondent to return to Iraq in order to apply in Jordan for an entry clearance to which he has become entitled underArticle 8. That is particularly so given that the reason he has becomeentitled is the Secretary of State for the Home Department's delay inmaking a lawful decision in relation to his removal.

71. This indeed is a family case involving children, in a sense both [ ] andthe Respondents children. We recognise and to try understand the depthand nature of the feelings these proceedings must generate amongstmembers of [ ]s family. Her father's letter is expressed in very strongterms. It describes the harrowing circumstances of her death. It asks thata balance be drawn between the Respondent's right as a father and hisright as a father. The letter states that [ ]'s right to life ought to beconsidered and asks for a balance be drawn under the Human Rights Act.

72. However that is a misunderstanding of the task before this Tribunal. It isnot a balancing of one person's human rights against those of another. Itis an assessmentofthe public interest arguments justifying removal andthe response to the offences which were committed balanced against theconsequences of removal not only on the Respondent but on his partner

and his children.

73. The Respondent was driving when he should not have been and left thescene of an accident when he should nothave done and thereafter hascontinued to offend over a number of years. He served a sentence of fourmonths in 2003 and the criminal offences which he has committed sinceare all reprehensible but none have resulted in terms of imprisonment.The Respondent clearly should not have been driving and certainly shouldnot have left the scene of the accident but the sentence which he receivedas a result of those offences was relatively short and reflective both of thecircumstances as they were on that day and of the public response to his

blameworthiness. Mr Barnes does not represent [ ]'s family and nor dowe. The interest to be balanced against that of the Respondent is that of

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the general public, not of individual members of it. Those are the factsupon which our decision must be based. That is of no comfort to [ ]sparents. The court punished the Respondent for the offences which hecommitted and not the tragic consequences. But in the circumstances ofthis case, that must be the proper application of the law. It must also be

the principle which guides us in this appeal.

74. We have found there to be no material error of law in DesignatedImmigration Judge McClures conclusions in respect of the existence of hisfamily life with [ ] and the children of the family including theRespondents own two biological children. The findings are clear. This is afamily unit, indeed a strong family unit, which has been subjected to anumber of stresses over the years and has withstood them. Neither havewe found that he did not take into account all relevant matters in hisassessment of the proportionality of removal. The Appellant accepts that itwould not be reasonable for the family to relocate together to Iraq for

either a permanent or temporary period. Had the Designated ImmigrationJudge considered the point he would have found that if the Respondentwere to return to Iraq to make an application for entry clearance thatapplication would have been successful because to refuse would be abreach of the U.K.'s obligations under the ECHR. Accordingly it would notbe more appropriate to require the Respondent to apply for leave fromabroad.

75. We rely on the guidance of the House of Lords in Chikwamba, who inallowing the appeal of the Appellant in that case, where it was also

conceded by the Secretary of State that the family as a whole could notrelocate to the Appellant's country of origin, held that in most cases thearticle 8 claim should be decided once and for all at the initial stage and, ifit is well founded, leave should be granted. The House of Lordsdistinguished Ekinci v SSHD [2005] EWCA Civ 1482 where the Appellant inthat case was being expected to return to Germany for something under amonth.

76. This is not a case where the relatively minor inconvenience of returning toa nearby country where administrative processes can be expected to runsmoothly in order to apply for entry clearance can be regarded as a

justifiable or sensible requirement. Given the findings and conclusions inrespect of the article 8 claim it is hard to see what would be achieved byrequiring the Respondent to return to Iraq since the entry clearance officerwould be bound to conclude that a refusal of entry clearance would bringabout an infringement of article 8 considered in the context of the familyas a whole.

Summary

77. Drawing all of this together we can summarise the position as follows. Thequestion facing the Designated Immigration Judge was not the same one

now to be confronted by the Upper Tribunal. The task facing him in thisappeal, where the issue was whether the Respondent's removal from the

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UK would bring about an infringement of article 8 of the ECHR, was tostrike a balance between the competing interests in play. Provided headopted a legally correct approach to that task, which we are satisfied thathe did, that was essentially a fact-based assessment for the DesignatedImmigration Judge to carry out. Our task is a different one. It is not for us

to reconsider the appeal its merits but to decide whether the conclusionwhich he reached was one that was open to him on the evidence that theparties chose to put before him.

78. In our view it is entirely clear that the Designated Immigration Judge didreach conclusions that were legally open to him. The Appellant has raisedthree challenges but in our judgement none is made out.

79. Firstly, the Designated Immigration Judge was plainly entitled to find thatfamily life had been established between the Respondent, his partner andthe children of the family.

80. Secondly, the complaint that he failed to have proper regard to the extentof the Respondent's criminality is misconceived, because it is entirely clearfrom the determination that he had in mind that this was at the very heartof the case being advanced by the Appellant. There can be no doubt thathe did give appropriate weight to that factor when carrying out thebalancing exercise required of him. He made clear that he was concernednot simply with the rights of the Respondent himself, but with the familyas a whole, and he said that the outcome might well have been different ifthe process of removing the Respondent had begun before his family lifehad become so firmly established.

81. Thirdly although the Designated Immigration Judge should have addresseddirectly the submission that the Respondent should be required to returnto Iraq to make an application for entry clearance to return, for thereasons we have set out in this determination, that cannot be regarded tobe a material error in the circumstances of this appeal. We rely on theguidance of the House of Lords in Chikwamba, who in allowing the appealof the Appellant in that case, where it was also conceded by the Secretaryof State that the family as a whole could not relocate to the Appellant'scountry of origin, held that in most cases the article 8 claim should be

decided once and for all at the initial stage and, if it is well founded, leaveshould be granted. The House of Lords distinguished Ekinci v SSHD [2005]EWCA Civ 1482 where the Appellant in that case was being expected toreturn to Germany for something under a month.

82. This is not a case where the relatively minor inconvenience of returning toa nearby country where administrative processes can be expected to runsmoothly in order to apply for entry clearance can be regarded as ajustifiable or sensible requirement. Given the findings and conclusions inrespect of the article 8 claim it is hard to see what would be achieved byrequiring the Respondent to return to Iraq since the entry clearance officer

would be bound to conclude that a refusal of entry clearance would bring

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about an infringement of article 8 considered in the context of the familyas a whole.

Decision

83. There is no material error in the determination and the decision stands.The Appellants appeal is dismissed.

Signed Date

Senior Immigration Judge Taylor(Judge of the Upper Tribunal)

IA135422009

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