“32. Automatic deportation (1) In this section “foreign criminal” means a person— (a) who is not a British citizen, (b) who is convicted in the United Kingdom of an offence, and (c) to whom Condition 1 or 2 applies. (2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. ... (4) For the purpose ofsection 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good. (5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). ...' 33. Exceptions (1) Section 32(4) and (5)— (a) do not apply where an exception in this section applies (subject to subsection (7) below), and (b) are subject to sections 7 and 8 of theImmigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions). (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach— (a) a person's Convention rights, or (b) the United Kingdom's obligations under the Refugee Convention.” (1) In this section “foreign criminal” means a person— (a) who is not a British citizen, (b) who is convicted in the United Kingdom of an offence, and (c) to whom Condition 1 or 2 applies. (2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. ... (4) For the purpose ofsection 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good. (5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). ...' (1) Section 32(4) and (5)— (a) do not apply where an exception in this section applies (subject to subsection (7) below), and (b) are subject to sections 7 and 8 of theImmigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions). (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach— (a) a person's Convention rights, or (b) the United Kingdom's obligations under the Refugee Convention.”
“The current offence suggests that Mr Akpinar has substantive cognitive deficits in terms of his decision making and he has been unwilling to take full responsibility for his actions. His previous response to supervision is not encouraging and I am uncertain about his level of motivation to address his offending behaviour. Based on OASys Mr Akpinar is assessed as posing a high risk of reconviction and as posing a medium risk of harm to the public.”
“Mr Akpinar, again, I am afraid there is no mitigation in this case, bearing in mind your plea, and I have already set out what the aggravating features were. It was outrageous, the behaviour, and sadly again you have been before the courts on previous occasions, and it is a sadness that you obviously were with Mr Kilinc on 7 August, when you must have been on bail for this offence, and committed an offence then for which you received a detention and training order, and now having had this case rehearsed in the Crown Court, you have to be dealt with it for this offence of violent disorder, and it is unfortunate that you have a previous affray when, of course, you were a very young man. I have read everything that is said in the pre-sentence report, and put forcefully on your behalf, and you said you cannot remember why or how you breached the supervision order, and it is very sad that you are before the courts as a young man, yet again, having really already had antisocial behaviour orders which you have breached, and here you are revealed as acting as we see in the CCTV footage.” … “I have to think about the aggravating features, in case anyone wants to review the case and the Court of Appeal could not think of them. It is a group attack. There was no justification for what happened. It was cowardly. It occasioned on one sole person who happened to be with somebody you did not think he should be with, or showing any form of affection – I doubt he even was – because in some ways you felt it was a province for you. Well how outrageous is that. So those are all the aggravating features, and you show absolutely no remorse. None of you have any remorse about this, in my judgment. You fought it tooth and nail till the end, despite what was plain on the CCTV footage.”
“60. We have had the opportunity to see the appellant and we regret to say that we did not find him to be a credible witness at all. The appellant did not appear to show any remorse whatsoever. We are mindful that the Pre Sentence Report states that the appellant was unwilling to take responsibility for his actions and the only explanation that the appellant offered at the hearing was that he was at the wrong place at the wrong time. He played down his connection with Turkey. He stated that he lived with his grandparents from the age of 5 or 6 and that he did not connect with his mother. He last went to Turkey in 2007. 61. The appellant stated at the hearing that he went with an uncle (father’s brother) on the occasion of his grandfather’s death. He visited his mother for seven to ten days. He did not know where she lived but was given information of her whereabouts by his uncle. However, in the Pre Sentence Report it stated clearly that he went to Turkey when he was 14 years old (2007/2008) and that he stayed with his mother for three months. His claim now is that he does not know where his mother lives and that he has had no connection with her. We do not believe that he is telling us the truth. 62. The appellant’s father and brother also played down the connection that the appellant has with his mother. The appellant’s father did not know that he had visited his mother when he went to Turkey in 2007. I appreciate that his father may not have any relationship with his wife but to claim that the appellant did not know that he had visited his own mother is in our view simply not credible. The appellant’s brother initially denied that he had any relatives although he like the appellant claimed that he lived with his grandparents before he came here. He has been to Turkey a number of times – the last visit was as recent as August 2013. He then stated that he had in fact visited his grandmother when he previously stated that he did not have any relatives in Turkey and when asked to explain he stated that he had mentioned that because he did not see them regularly. 63. It is clear to us that the appellant has a number of relatives in Turkey. He has his mother with whom we believe he is in touch. He has his grandmother and a number of uncles and aunts from his father’s side and his evidence and that of his father that he is no longer in touch with his mother is in our view simply not credible.”
“68. The appellant is under 25 years of age. He arrived in the UK on15 August 2003 . He was granted indefinite leave to enter. He has had a number of convictions and his last conviction was on6 April 2012 when he was sentenced to twelve months’ imprisonment in a young offender institution. 69. In our balancing exercise we have to consider the seriousness of the appellant’s last offence. On the one side the appellant had been in the UK since the age of 7 and we accept that this is significant having regard to the Maslov principles. However, we also have to consider the criteria in the case of an appellant who is a young adult and who has not founded a family on his own. We have regard to and consider significant the nature and the seriousness of the various offences committed by the appellant. We appreciate the length of the appellant’s stay in this country. The appellant’s offences in this country have been continuous since 2009 and notwithstanding his claim that he has very little contact with his family in Turkey we find that there is ample evidence of social, cultural and family ties with Turkey. 70. We find that the facts of this case can be distinguished from Maslov particularly when we consider the nature and the seriousness of the appellant’s offences and his continuing ties with Turkey. 71. We have given a careful consideration to the totality of the evidence before us. The respondent made a deportation order against the appellant underSection 32(5) of the UK Borders Act 2007 . The appellant does not fall within any of the exceptions from automatic deportation. The appellant has failed to discharge the burden upon him that his deportation will breach his rights underArticle 8 of the ECHR . It follows therefore that his appeal must be dismissed.”
“They properly applied the relevant case aw and were entitled to distinguish this appeal from that of Maslov. They reached a decision open to them and again it is simply unarguable to state, as the ground do, that the decision is perverse. The appellant has a long history of offending, he remains a continuing risk of harm to others, and retains contact with his country of origin. The panel may have used a loose phrase in paragraph 69 but that does not detract from their conclusion as a whole.”
“The First Tier Tribunal was directed to the decision of the European Court of Human Rights in Maslov v Austria. Although the Claimant disagreed with the way that the FTT had applied the decision, Judge Robertson in the FTT and Judge Taylor in the UT gave detailed and sustainable reasons as to why there was no arguable error of law in the Panel’s decision.”
“9. There can be no question that the offence committed by the Appellant in 2011 was one of utmost seriousness. He was sent to custody for a period of three and a half years for offences of aggravated burglary and possession of a firearm. It is apposite to quote the learned judge in his sentencing remarks when he said as follows:- “This was a well organised offence with professional hallmarks. The three of you obviously planned the offence together before it was committed. You targeted the house where you expected there to be valuable items for taking. You expected the house to be occupied otherwise you would not have taken the knife, the imitation firearm and worn the balaclavas. You had obviously obtained the knife and the imitation firearm with the purpose of committing this offence. You wore masks and/or balaclavas. You wore gloves plainly to avoid leaving fingerprints. …..You, Kuvonu had the imitation firearm…Whilst you took turns to guard the victims for about twenty minutes the house was comprehensively ransacked by those who were not keeping guard”
“40. As indicated above, the appellant wrote a letter on26 February 2012 . This is where he said that “I understand that my conviction may seem serious”
“I am aware that the UK Border Agency presumed that I pose a danger to the public because of my conviction and the length of my sentence. I would like to rebut that presumption and give evidence to why I believe that I do not pose any danger to the public. I understand that my conviction may seem serious and I am surely (sic) sorry for the victims and regretful of my actions. I have never been involved in crimes before, this is my first and only conviction, it was a big mistake and I regret it every day. I had just returned 17 at the time of the offence and I was under a lot of peer pressure from the other people involved. I am no longer in contact with the other people involved and I have kept myself distant from the troublemakers and bad company.” 41. Thus it is plain that the appellant began by apologising for his actions, which is clearly a reference to his criminal activities, and “the effect it may have had on the victims”
“The conclusion in the letter of22 February 2013 that the appellant was “assessed as a medium risk of harm to the public from robbery” and a “medium risk of reconviction” seems to arise from a weighting system that acknowledges the previous offences and weaknesses in the appellant’s character. It has to be read with the document dated20 March 2013 from Mr Rhys-Thomas assigning the appellant firmly to the “low” band of risk for likely re-offending.”
“100. Having regard to the foregoing considerations, in particular the – with one exception – non-violent nature of the offences committed when a minor and the State’s duty to facilitate his reintegration into society, the length of the applicant’s lawful residence in Austria, his family, social and linguistic ties with Austria and the lack of proven ties with his country of origin, the Court finds that the imposition of an exclusion order, even of a limited duration, was disproportionate to the legitimate aim pursued, “the prevention of disorder or crime”
“55. Although the majority of the applicant’s criminal convictions were at the less serious end of the spectrum of criminal activity and were non-violent in nature, the Court cannot ignore the more serious convictions for burglary and robbery. The conviction for robbery was particularly serious: in sentencing the applicant to four and a half years’ imprisonment the judge noted that the applicant was one of the ringleaders of the operation and that the use of weapons made it a terrifying ordeal for the victims. Moreover, although the applicant submits that the majority of his offences were committed when he was between seventeen and eighteen years old, he was in fact nineteen years old when he was last convicted of burglary and twenty-two years old when he was convicted of robbery. The present case is therefore readily distinguishable from Maslov v. Austria [GC], no. 1638/03, § 81,23 June 2008 , where the Court found a violation of Article 8. In Maslov, the (mostly non-violent) offences were committed by the applicant when he was between fourteen and fifteen years old and could therefore be regarded as acts of juvenile delinquency.”
“50. In light of the above, having particular regard to the length of time that the applicant has been in the United Kingdom and his very young age at the time of his entry, the lack of any continuing ties to Pakistan, the strength of his ties with the United Kingdom, and the fact that the applicant has not reoffended following his release from prison in 2006, the Court finds that the applicant’s deportation from the United Kingdom would not be proportionate to the legitimate aim pursued and would therefore not be necessary in a democratic society.”
“41. Finally, the Court turns to the question of the respective solidity of the applicant’s ties to the United Kingdom and to Pakistan. The Court notes that, unlike his younger brother, the applicant returned to Pakistan for visits following his arrival in the United Kingdom and also married there. In the absence of any evidence to the contrary, the Court assumes that this marriage is still, legally at least, subsisting. The applicant therefore maintained some level of connection to his country of origin and was not deported as a stranger to the country. As regards his ties to the United Kingdom, the Court has addressed the question of his family life, both with his parents and siblings and with his various partners and children, above, and found it to be limited in its extent. Furthermore, the applicant’s private life in the United Kingdom, as observed by the Tribunal, has been constrained by his convictions and spells in prison. Whilst he was mainly educated in the United Kingdom and has worked, he does not appear to have established a lengthy or consistent employment history. In short, and despite the length of his stay, the applicant did not achieve a significant level of integration into British society. The Court is aware that, as a settled migrant who spent much of his childhood in the United Kingdom, serious reasons would be required to render the applicant’s deportation proportionate (see Maslov, cited above, §75). However, having regard to his substantial offending history, including offences of violence and recidivism following the commencement of deportation proceedings against him, the Court is of the view that such serious reasons are present in the applicant’s case. His private and family life in the United Kingdom were not such as to outweigh the risk he presented of future offending and harm to the public and his deportation was therefore proportionate to the legitimate aim of preventing crime. As such, the applicant’s deportation to Pakistan did not amount to a violation of Article 8.”
“90. … Against this background and having regard to the applicant’s age, the length of the period of his criminal behaviour as well as the seriousness of the offences, the Court is unable to conclude that the acts committed by the applicant can be regarded as “acts of juvenile delinquency” (see, by contrast, Maslov, cited above, § 81; see also Joseph Grant v. the United Kingdom, no. 10606/07, §§ 39-40,8 January 2009 ). The Court reiterates, in this context, that an absolute right not to be expelled cannot be derived fromArticle 8 of the Convention regardless of whether an alien entered the host country as an adult or at a very young age, or indeed whether he or she was born there (see Üner, cited above, § 55). …”
“45. … Mr Moustaquim himself was less than two years old when he arrived in Belgium. From that time on he had lived there for about twenty years with his family or not far away from them. He had returned to Morocco only twice, for holidays. He had received all his schooling in French. His family life was thus seriously disrupted by the measure taken against him, …". 46. Having regard to these various circumstances, it appears that, as far as respect for the applicant's family life is concerned, a proper balance was not achieved between the interests involved, and that the means employed was therefore disproportionate to the legitimate aim pursued. Accordingly, there was a violation of Article 8.”
“40. Despite the obvious care with which the AIT considered whether the deportation of the appellant would be a disproportionate interference with his right to respect for his private life, in my opinion their determination of this issue was flawed. The appellant had lawfully entered the UK when he was 12 years of age. He spent his adolescence and the whole of adult life here. Much of his offending was committed when he was under the age of 21. In these circumstances, very serious reasons were required to justify his deportation: see Maslov at [75]. 41. Miss Grey does not dispute this. She points out that the AIT set out all the relevant facts, including the appellant’s age when he entered the UK, the fact that he has ties with this country and that most of his offending was committed when he was young. She submits that, in substance, at paras 66, 84 and 85, the AIT did provide the “very serious reasons” that were necessary to justify the deportation. 42. I do not agree. What the AIT did was to balance the appellant’s right to respect for his private life against the rights of others to be protected from the risk of his re-offending and to conclude that the former was outweighed by the latter. In performing the balancing exercise, which they found “very difficult”, they undoubtedly took into account the fact that the appellant had resided in the UK for a lengthy period and arrived here as an adolescent: see para 66. But there is nothing to indicate that they appreciated that the fact that (i) the appellant had lived in the UK since he was 12 years of age, (ii) most of his offending had been committed when he was under the age of 21 and (iii) he had no links with Angola meant that very serious reasons were required to justify the decision to deport him. I should add that the AIT are not to be criticised for not appreciating that very serious reasons were required. They did not have the benefit of [75] of Maslov: the Grand Chamber had not published their decision at the time of the AIT’s determination.”
“24. I do not accept Mr. Hall's submission that, notwithstanding Maslov , the Respondent may lawfully deport a settled migrant such as this Appellant even in the absence of any very serious reasons to justify deportation. Whether the reference to “very serious reasons” in paragraph 75 of Maslov is described as a “rule”, “test” or “threshold”, or simply as the inevitable consequence of the proper application of the Üner criteria to the case of a settled migrant who has spent all or the major part of his childhood and youth in the host country, Maslov does pull the threads together and in so doing makes it clear in paragraph 75 that very serious reasons are required to justify expulsion in such a case. In the absence of very serious reasons the deportation of a settled migrant will not be proportionate under Article 8.”
“12. I am aware that the ECHR in Maslov concluded (paragraph 84) that, “The Court sees little room for justifying an expulsion of a settled migrant on account of mostly non-violent offences committed when a minor”
“4. The previous law was stated in a number of decisions of the ECtHR including Boultif v Switzerland[2003] 33 EHRR 1179 , Uner v Netherlands [2006] 3 FCR 229 and Maslov v Austria [2008] GC ECHR 1638/03. The essence of the approach required by that law was summarised by the House of Lords in Huang v Secretary of State for the Home Department[2007] UKHL 11 ,[2007] 2 AC 167 .”
“39. Ms Giovannetti has made it clear on behalf of the Secretary of State that the new rules do not herald a restoration of the exceptionality test. We agree. It is true that, as the UT pointed out at para 38 of their determination, the new rules are not a perfect mirror of the Strasbourg jurisprudence. But Ms Giovannetti concedes that they should be interpreted consistently with it. Mr Husain correctly points out that the rules do not expressly provide for consideration of all questions relevant to article 8 claims, such as what is in the best interests of the child; the age of the offender at the date of entry into the UK and at the date of the offending; the length of time since the offence; the offender’s subsequent conduct and so on. But the rules expressly contemplate a weighing of the public interest in deportation against “other factors”
“50. Although we have disagreed with the UT on the question whether the new rules provide a complete code, the differences between our approach and theirs is one of form and not substance. They conducted a meticulous assessment of the factors weighing in favour of deportation and those weighing against. As they said, the factors in favour of deportation were substantial. They properly gave significant weight to the serious view taken by the Secretary of State of MF’s criminality and his poor immigration history. On the other hand, they attached considerable importance to the interests of F. The decision was finely balanced and a contrary decision would have been difficult for the appellant to challenge. But they did not take into account any irrelevant factors and they did not fail to take into account any relevant factors. In these circumstances, the UT were entitled to strike the balance in favour of MF. We can find no basis for interfering with their decision.”