Unduly harsh test is met: FTT Judge allows appeal of a potential deportee he describes as a “ persistent, prolific offender, an unreformed offender”

The First Tier Tribunal Judge had two options in this appeal– to allow the Appellant’s appeal despite his criminal record and high likelihood of further offending or his family (and essentially his children) having to remain in the UK without their father.

A history of offending spanning over nearly 20years:

ZY entered the UK in 2002 from Zimbabwe on a visit visa valid for 6months. He remained in the UK without leave to remain however over the yeas sought unsuccessfully to advance an application for asylum including several human rights claims.

As regards ZY’s lengthy history  of offending, in summary, the following applies:

Between 2003 and 2011, ZY amassed several convictions for almost each year(bar 2005 and 2006).The convictions related to mostly driving offences but including convictions for assault and fraud.

Excluding the years 2015, 2016 and 2018, between 2012 and 2019, ZY continued to accrue criminal convictions.

Whilst an application to revoke the deportation order submitted in 2019 was pending to be decided and then with the period between 2020 and 2022 relating to the waiting period during which his appeal against the refusal of the human right application was pending to be heard, he had been in and out of prison twice.

At the time of his human rights appeal hearing in January 2022, ZY was on bail for an offence of driving while disqualified alleged to have been committed  in 2021. He was next due to appear at a Magistrates’ Court in March 2022.

Despite there being no conviction related to the alleged offence of 2021, at the time his appeal was heard in 2022, I encouraged ZY to prepare a supplementary statement so as to clarify the position to the Tribunal. Had he not done so, the Home Office Presenting Officer would almost certainly have brought up the issues on the day of the hearing.

Qualifying children:

ZY lives in the UK with his three British children  were born between 2007 and 2016 in the UK. He lives with the mother of his children, a Zimbabwean national who holds refugee status on a permanent basis.

A summary of the basis of the refusal decision:

The core parts of the refusal decision of 2020 included the following:

  • It was accepted ZY had a genuine and subsisting parental relationship with his children
  • The children’s best interests were however outweighed by the desirability of deporting foreign criminals. The children’s mother could provide suitable care for the children in ZY’s absence
  • It would not be ‘unduly harsh’ for his children if ZY was deported
  • The children would continue to have the advantage of the education, health and support services provided in the UK
  • ZY had extended family in the UK, who can help support the children
  • None of the children are financially reliant on ZY
  • Contact with the children would be maintained by modern means of communication
  • ZY did not meet the requirements for the exception to deportation on the basis of family life with his children
  • In relation to whether there were very compelling circumstances, there was a significant public interest in ZY’s deportation, given his criminal history and a deportation order was signed in 2011.

What was argued on behalf of ZY:

Submissions were as follows before the Tribunal Judge:

  • It was recognised the high degree of public interest in ZY’s deportation.
  • It was acknowledged that little reliance could be placed on ZY’s evidence.
  • It was only the effect that his deportation might have on others that could be weighed in the balance. In a case with two bad outcomes, the balance might just be in ZY’s favour.
  • Pointed out were the difficulties that ZY’s partner had in managing the children during ZY’s absence.
  • However imperfect he might be, ZY was part of the structure that kept the family together.
  • That was the background, against which the Independent Social Worker’s report must be viewed. That report had identified the negative impact of his incarceration on the family. Although the appellant may not merit any sympathy, his children do.
  • It was acknowledged that the risk of the appellant reoffending was high, but prayed in aid was the effect ZY’s deportation would have on his children as the only realistic ground he could have for avoiding deportation.

The Judge ‘s views in relation to ZY’s offending:

The Judge made the following stinging observations regarding ZY’s offending:

  • It was important to analyse ZY’s behaviour to identify the strength of the public interest in his deportation. It was apparent from the recitation of his criminal history, that he falls within the definition of ‘foreign criminal’ (section 117D(2) of the 2002 Act) because he is not a British citizen; has been convicted in the UK of an offence; and has been sentenced to a term of imprisonment of at least 12 months. That he is a ‘persistent offender’ is also plain.
  • ZY’s offending history largely speaks for itself, but in assessing the level of public interest in the appellant’s deportation, ZY was not just a persistent offender, he was prolific.
  • Not only did his offending continue, it escalated to serious sophisticated frauds.
  • Despite continuing to offend, ZY made the current application to revoke the deportation order in 2019.
  • The appellant’s attitude to offending and public safety is apparent from the criminal record. He is a prolific offender. He has serious offences involving sophisticated frauds, committed over many years; he has countless offences of driving while disqualified and with excess alcohol; he has an offence of assault. He has been sentenced to terms of imprisonment, immediate and suspended, community sentences, and an alcohol rehabilitation course. Nothing within the criminal justice setting has stopped him offending and re-offending.
  • It might be expected that involvement in immigration proceedings would encourage ZY to cease offending, knowing how continuing to offend was likely to be viewed by the Secretary of State and the Tribunals. It has not.
  • He has for many years been involved in immigration appeals while simultaneously profusely offending.
  • Factors that would very often end offending behaviour, such as an enduring relationship and family commitments have left the rate of offending unabated.
  • He has committed serious, sophisticated offences of fraud. He has not addressed those at all.
  • He totally disregards road traffic legislation, committing serious offences with the potential for great harm.
  • The 2020 OASYS report puts the risk of re-offending as high, and the risk of serious harm as medium. The report was accurate in its assessment of the likelihood of further offending, in that he again drove while disqualified in 2020.
  • Nothing about ZY’s circumstances or evidence suggested that he will not re-offend.
  • His criminal history, serious and persistent offending and high likelihood of further offending, made the public interest in his removal high.

Consideration of the Independent Social Worker’s Report:

An independent social worker’s report was obtained in 2020 following the refusal of the claim based on application to revoke the deportation order of 2011. In light of the Covid-19 pandemic, the appeal went unheard for nearly 2years. In January 2022, just before his appeal was heard, a second independent social worker report was commissioned, updating on the current circumstances in relation to the children.

The Judge noted the following:

  • There were significant events in the family’s life during the course of the proceedings, however the Judge had his starting point a Report of 2020 by an independent social worker.
  • The children were achieving milestones, enjoying school and performing well academically. The Report described a household in which all relationships were strong, appropriate and loving. Because at that time his Partner was working night shifts, ZY took the major caring role for their children during the day, including attending school events.
  • The Report confirmed that if ZY were permanently removed, his Partner would have to take on the caring role for the children and could not work. The Report also described the negative impacts reported on the children when ZY was absent for relatively short periods of time when serving a prison sentence. The Report identified that the children have no contact or familiarity with life in Zimbabwe, and it would not be practical for them to relocate there. The Report concluded that the best interests of the children were to remain together with both parents in the UK, and that ‘these children’s wellbeing will be negatively affected by their father’s long-term absence’.
  • The Judge noted that the Independent Social Worker is not required to address the issue whether it would be ‘unduly harsh’ for the family were ZY to be deported in light of his criminal record.
  • The Independent Social Worker was noted to have completed an updated independent report in January 2022. She again determined that the children’s best interests were to remain with both parents in the UK. The report was not required to address whether deportation is ‘unduly harsh’.

Why ZY’s appeal was allowed:

In allowing ZY’s appeal the Judge considered and found as follows:

  • Whether the decision to deport ZY would have unduly harsh consequences in terms of exception 2 depended in large part on the likely effect of removal. In making his findings on that aspect of the case, the noted that ZY was an unreliable witness: he presented himself in what he believed to be the best light at any point.
  • No reliance at all was placed on his evidence of reform or intention to give up a criminal lifestyle.
  • In assessing the effect of ZY’s removal on his children, the Judge took account of the most recent report by the Independent Social Worker Report( aspects of her report were quoted at length).
  • The Judge noted that he had identified the high degree of public interest in ZY’s deportation. He is a persistent, prolific offender; an unreformed offender; an offender who has been sentenced to between one and four years imprisonment.
  • That public interest in ZY’s deportation can be outweighed if he could show, on the balance of probabilities, that his removal would have unduly harsh consequences for his partner and/or children with whom he has a genuine and subsisting relationship: section 1175C of the 2002 Act.
  • Were he to be deported, that would effectively end the relationship with his children.
  • The Judge considered the effect of ZY’s deportation on his partner’s ability to care for the children, and for that reason alone took account of the effect of his deportation on her.
  • The issue was whether it would be ‘unduly harsh’ on the appellant’s children to remain in the United Kingdom if he were to be deported. The Judge took account of the best interests of the children, as required by section 55 of the Borders, Citizenship and Immigration Act 2009. All the children were British nationals, and that carried weight.
  • The refusal decision acknowledged that the children would not return to Zimbabwe with the appellant, so that were he to be deported his ties with his children would be, at best, by electronic means and occasional visits.
  • The Independent Social Worker identified that it is in the best interests of the children for ZY to remain in the United Kingdom. That was undoubtedly true, and the refusal decision acknowledged that, but that is a common feature of deportation of foreign criminals with children. However, from the report and other evidence, the Judge noted that he had to consider whether it would be ‘unduly harsh’ on them.

In setting out further considerations leading him to allowing the appeal:

  • The Judge noted that all the reports to which he access, including reports that were prepared because there had been concerns about ZY and his Partner’s ability to parent the children appropriately, had concluded that they are competent, loving parents, providing a safe home environment for the children.
  • ZY’s partner had by and large been the breadwinner, and worked at night, ZY had taken on most of the domestic responsibilities for the care of his children, a role that he has undertaken successfully, despite his criminal proclivities.
  • Were ZY to be deported, neither his Partner nor the children would accompany him. They would be left in the UK in the care of their mother. While the Judge found that there was significant practical and financial support from within the UK for the family, that would not be the same as the constant support of their father.
  • There was no doubt that the children would find ZY’s deportation very difficult. They were close to him. They would miss him. They may not understand what has happened.
  • It was apparent that ZY’s partner had more recently had difficulties in caring for the children. While the effect of ZY’s deportation would not be unduly harsh on his partner personally, her ability to care for the children, and the likely effect on their wellbeing, was an important feature.
  • As set out in the Independent Social Worker’s report, if ZY were not be present and should his partner feel under greater strain, it was not inconceivable that this addition pressure may present a greater risk of her physical chastisement of the children.
  • As imperfect a role model as he is, ZY was a vital part of the children’s lives, and his deportation would cause them (who are not responsible for his criminality) undue hardship.
  • The Judge did not accept that ZY was ‘reformed’. He found it likely he will reoffend, and there will be consequences of such offending on his liberty, relationship with his family, and ability to avoid deportation. However, the Judge found that currently his deportation would cause ‘undue hardship’ for his children, and therefore that he had satisfied the statutory exception 1 to deportation.

Secretary of State’s application for permission to appeal to the Upper Tribunal fails:

ZY’ appeal was allowed nearly four months after his appeal was heard.

A decision allowing the appeal was notified in April 2022.

In April 2022, the Secretary of State applied to the First Tier Tribunal for permission to appeal to the Upper Tribunal.

In the first week of June 2022, the First Tier Tribunal refused the application for permission to appeal.

Nearly four weeks later, the Secretary of State has not applied to the Upper Tribunal for permission to appal the April 2022 decision.

Current position:

ZY was convicted of a driving offence in March 2022 following his hearing in the Tribunal. His appeal in the Tribunal was allowed in April 2022 whilst he was serving a sentence related to driving offences.

Following a successful application for immigration bail after completion of his sentence,  he now awaits the grant of his leave to remain whilst he continues to support his partner with their children.



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