Mwesezi v The Secretary of State for the Home Department [2018] EWCA Civ 1104

Case No C5/2016/0132[2018] EWCA Civ 1104
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM)
DA017432014
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/05/2018
Before
LORD JUSTICE McFARLANELORD JUSTICE FLOYDLORD JUSTICE SALES
Between
Kennedy MweseziAppellantThe Secretary of State for the Home DepartmentRespondent
Duran Seddon and Ali Bandegani (instructed by Wilson Solicitors LLP) for AppellantLisa Giovannetti QC and Neil Sheldon (instructed by the Government Legal Department) for RespondentHearing Hearing date: 2 May 2018
Judgment
[1]This appeal relates to the deportation of an individual who is a foreign criminal for the purposes of the United Kingdom’s immigration regime. The appellant came to the United Kingdom as a child of two. His father, brother and half-sister are here. He committed serious offences when aged 23, for which the Secretary of State wishes to deport him. The critical question in this case is whether there are “very compelling circumstances” such as to prevent the deportation of the appellant by reason of his rights under Article 8 of the European Convention on Human Rights (respect for family and private life): see section 117C(6) of the Nationality, Immigration and Asylum Act 2002. This is a second appeal which has been outstanding for some time. In the meantime, the relevant principles of law have been clarified in other cases. The court is now required to apply the principles laid down in those cases.[2]Part 5A of the 2002 Act was inserted by amendment in July 2014, at the same time as corresponding new Immigration Rules were promulgated, including at paras. 398 to 399A so far as relevant to foreign criminals. Part 5A and the new Rules are designed to structure consideration by the Secretary of State, tribunals and courts of claims based on Article 8 in cases concerning entry into or removal from the United Kingdom. Part 5A provides in relevant part as follows:
“PART 5A ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS 117A Application of this Part (1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts— (a) breaches a person’s right to respect for private and family life under Article 8, and (b) as a result would be unlawful under section 6 of the Human Rights Act 1998. (2) In considering the public interest question, the court or tribunal must (in particular) have regard— (a) in all cases, to the considerations listed in section 117B, and (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C. (3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2). 117B Article 8: public interest considerations applicable in all cases (1)The maintenance of effective immigration controls is in the public interest. (2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English— (a) are less of a burden on taxpayers, and (b) are better able to integrate into society. (3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons— (a) are not a burden on taxpayers, and ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS (b). are better able to integrate into society. (4). Little weight should be given to— (a). a private life, or (b). a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully. (5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious. (6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where— (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b) it would not be reasonable to expect the child to leave the United Kingdom. 117C Article 8: additional considerations in cases involving foreign criminals (1) The deportation of foreign criminals is in the public interest. (2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. (3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies. (4) Exception 1 applies where— (a) C has been lawfully resident in the United Kingdom for most of C’s life, (b) C is socially and culturally integrated in the United Kingdom, and (c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported. (5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh. (6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. (7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted. 117D Interpretation of this Part (1) In this Part— “Article 8” means Article 8 of the European Convention on Human Rights; “qualifying child” means a person who is under the age of 18 and who— (a) is a British citizen, or (b) has lived in the United Kingdom for a continuous period of seven years or more; “qualifying partner” means a partner who— (a) is a British citizen, or (b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33(2A) of that Act). (2) In this Part, “foreign criminal” means a person— (a) who is not a British citizen, (b) who has been convicted in the United Kingdom of an offence, and (c) who— (i) has been sentenced to a period of imprisonment of at least 12 months, (ii) has been convicted of an offence that has caused serious harm, or (iii) is a persistent offender. …”

Factual background and the tribunal decisions

[3]The appellant is a national of Uganda, born on 9 November 1987. His father came to this country from Uganda and was granted exceptional leave to remain and subsequently granted indefinite leave to remain here. The appellant followed here with his mother and a brother, when the appellant was aged two. His mother was granted exceptional leave to enter. The appellant’s parents later separated. His mother had a daughter, who is the appellant’s half-sister. His mother died in 1994 and the children were then brought up by their grandmother, who was also from Uganda. The appellant was granted indefinite leave to remain in 2001. The appellant’s father, brother and half-sister are now all British citizens.[4]In the period 2003 to 2011, the appellant committed nine offences, including driving offences, failure to surrender to bail and making a false statement to obtain insurance. His sentences did not involve imprisonment.[5]In September 2011 the appellant was charged with possession of a prohibited weapon (a disguised firearm) and live ammunition held without a certificate. While held on remand he was diagnosed as suffering from bi-polar affective disorder and was put on a course of medication which he continues to take. On 9 February 2012, after a trial, the appellant was convicted of the offences charged and was sentenced to imprisonment for six years on the first offence and for a concurrent period of two years on the second. Plainly this was very serious offending. Mr Seddon, for the appellant, accepted that the judge in the First-tier Tribunal (“FTT”) was right to characterise this offending as “of extreme seriousness”.[6]By a decision dated 5 September 2014 the Secretary of State indicated that she proposed to make a deportation order in respect of the appellant by virtue of section 32(5) of the UK Borders Act 2007. In the Secretary of State’s view, there was no impediment to the deportation of the appellant to Uganda by reason of his Convention rights under the Human Rights Act 1998. Although he had spent almost all his life in the United Kingdom, spoke only English and had only been to Uganda a couple of times on family holidays, he had been brought up in a Ugandan household and hence had absorbed some understanding of Ugandan culture. He was a fit young man with a university education who could be expected to make a new life for himself in Uganda. He would go on receiving appropriate medical treatment in Uganda for his bi-polar disorder. The appellant had not shown that there were very compelling circumstances within section 117C(6) to prevent his removal.[7]The appellant appealed to the FTT. The FTT heard evidence from him and his relations. It made careful and even-handed findings of fact. It found that the appellant does not have any significant family relationships in Uganda. It accepted that he suffers from bi-polar affective disorder. The FTT found that, despite the appellant’s protestations to the contrary, he did not truly or genuinely feel remorse for his firearm and ammunition offences. It also found that he lied about his motivation for the offences, when he claimed that he had simply looked after the firearm and ammunition for others in return for payment. It found that he had a family life with his father, his father’s current partner and his half-sister, going beyond ordinary feelings of love and affection, in that he had lived in the same household with them since his release on bail in September 2014 and received practical support from them in the form of accommodation and maintenance. The FTT found that the appellant had been well-behaved in prison and accepted the assessment made in an expert report adduced by him from a psychologist that the risk of him reoffending was only low to medium, with a low risk of committing violent offences.[8]For the purposes of Part 5A of the 2002 Act and the corresponding Rules the appellant is in the serious offender category identified by this court in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662; [2017] 1 WLR 207, since he has been sentenced to a term of imprisonment exceeding four years. Nonetheless, for the purposes of considering whether there are “very compelling circumstances, over and above those described in Exceptions 1 and 2” (section 117C(6)), the FTT considered whether the appellant could show that he satisfied Exception 1 (see section 117C(4)). Exception 2 is not relevant in this case. The FTT in fact framed its analysis by reference to the corresponding provisions in the Rules, but for present purposes it is convenient to refer to the primary legislation, which is to the same effect.[9]At para. [29] of its decision, the FTT found that, although the appellant is socially and culturally integrated in the United Kingdom, he did not discharge the burden of showing on the balance of probabilities that there would be very significant obstacles to his integration into Uganda. In the assessment of the FTT, he is young, in good health (save for his bi-polar disorder, which the FTT did not suggest would impede his integration in Uganda), intelligent and resourceful; he would be capable of restarting his life in his country of origin.[10]However, despite this, the FTT found that there were “very compelling circumstances over and above [those described in Exception 1]” which meant that the deportation of the appellant would be disproportionate and in violation of Article 8, and hence unlawful: i) The FTT correctly directed itself regarding the seriousness of the appellant’s offending and the significance of this in terms of the framework set out in Part 5A of the 2002 Act (para. [32]); ii) At paras. [34]-[35] the FTT placed particular emphasis upon the guidance given by the Grand Chamber of the European Court of Human Rights at para. [71] in its judgment in Maslov v Austria [2009] INLR 47, see below. The FTT emphasised that the appellant had lived in the United Kingdom for practically all his life and had no significant links to Uganda. In this part of its decision, the FTT did not refer back to its finding that the appellant would not face very significant obstacles in relocating to Uganda; iii) At para. [36] the FTT took into account evidence regarding the risk of re-offending, which was that it was only low to medium, and a positive appraisal from the appellant’s probation officer; and iv) At para. [37] the FTT accorded some weight to the appellant’s satisfactory behaviour during his imprisonment and some weight to his mental ill-health.[11]In its judgment in Maslov,the Grand Chamber set out its guidance regarding general principles in relation to the deportation of foreign criminals at paras. [68]-[76]. The case concerned a young man from Bulgaria who faced deportation there by reason of a series of offences, principally in the nature of gang-related burglaries, committed when he was a child aged between about 15 and 17. The relevant decisions to deport him were taken when he was still a minor, and they became final when the applicant had just turned 18, and was still living with his parents, upon the decision of the Austrian Constitutional Court not to intervene. At para. [71] the Grand Chamber said:
“In a case like the present one, where the person to be expelled is a young adult who has not yet founded a family of his own, the relevant criteria are: - the nature and seriousness of the offence committed by the applicant; - the length of the applicant’s stay in the country from which he or she is to be expelled; - the time elapsed since the offence was committed and the applicant’s conduct during that period; - the solidity of social, cultural and family ties with the host country and with the country of destination.”
[12]Although these factors will also be relevant in relation to an older adult, like the appellant, who has come to the host country as a young child, it is relevant to observe that the Grand Chamber here had a particular focus on the circumstances of the specific case before it. As I have noted, that case concerned an applicant who was a child when the relevant offences were committed and had only just turned 18 by the time of the final relevant decision in his case. Unlike in the present case, there was no suggestion that the applicant was of an age and maturity to be able to start a new life for himself in Bulgaria without family support there. Accordingly, it is not surprising that the Grand Chamber did not refer to this as a potentially relevant factor in that case.[13]At para. [35] of its decision, the FTT in this case paid close attention to the four factors identified in the Maslov judgment at para. [71] and made its assessment in relation to each of them. It did not, however, refer back to its findings at para. [29] that the appellant did not face very significant obstacles to integration in Uganda and was capable of successfully starting a new life there. However, these are relevant factors in the context of the Article 8 assessment which is required in this case.[14]The Secretary of State appealed to the Upper Tribunal. The Upper Tribunal allowed the appeal. It held that the FTT had committed errors of law in its assessment and then proceeded to remake the decision itself. It held that it would be proportionate and lawful to deport the appellant.[15]There are some passages in the Upper Tribunal’s reasoning on the application of the test in section 117C(6), and the concept of “very compelling circumstances over and above those described in Exceptions 1 and 2”, which are, with respect, rather opaque. However, the central thrust of the Upper Tribunal’s reasoning is clear enough. It accepted at paras. [26]-[27] and [39] that spending almost all of one’s life lawfully resident in the United Kingdom is capable of being a very compelling circumstance over and above being resident here for most of one’s life (as required by section 117C(4)(a)), but would not necessarily be so. The Upper Tribunal, like the FTT, in assessing whether “very compelling circumstances” exist gave weight to aspects of the case covered by Exception 1, where those aspects had a significance for the Article 8 analysis which was greater than a case of bare satisfaction of the requirements of section 117C(4). Accordingly it is clear that the Upper Tribunal, like the FTT, adopted an approach to section 117C(6) which has since been confirmed to be correct by this court in NA (Pakistan) at [28]-[32] and [37].[16]It is also clear from their decisions that both the FTT and the Upper Tribunal had regard to other factors, not referred to in section 117C(4), but which bear upon the question of proportionality of removal under Article 8, including the gravity of the crimes committed, the risk of re-offending, the appellant’s health and the guidance in Maslov. Again, reference to other factors of this character when examining whether “very compelling circumstances” exist within the meaning of section 117C(6) has been confirmed to be correct by this court in NA (Pakistan), at [29], [37]-[38] and [61].[17]The critical part of the Upper Tribunal’s reasoning for finding that the FTT had committed an error of law is at paras. [25]-[30]. At [30] the Upper Tribunal accepted that there was evidence before the FTT that medication for bi-polar affective disorder is not available in Uganda, and that the FTT was entitled to give some weight to the appellant’s medical condition, but this was not so severe that it merited being given great weight. As mentioned above, at [26]-[27] the Upper Tribunal accepted that the fact that the appellant had spent almost all his life in the United Kingdom was relevant, but it correctly noted that “Each case must be considered on its particular facts including the seriousness of the criminality and the claimant’s particular circumstances.” At para. [28] the Upper Tribunal referred to the FTT’s finding that the appellant can re-establish himself in Uganda. In the Upper Tribunal’s view, this was important. At [29]-[30] it found that the FTT had erred in finding that there were “very compelling circumstances” for the purposes of section 117C(6) and the corresponding Rules in this case, in light of the facts found by the FTT, including the extremely serious nature of the appellant’s offences and, in particular, the finding that there were no very significant obstacles to his integration in Uganda, where he was capable of re-establishing himself. In the view of the Upper Tribunal, the FTT’s conclusion regarding “very compelling circumstances” was not one which was reasonably open to it on the facts as found by it.[18]At para. [31] the Upper Tribunal also upheld the Secretary of State’s appeal on a distinct ground, that the FTT gave “inappropriate regard” to the guidance in Maslov because the FTT did not set it in the context of observations by this court in its decision in R (Akpinar) v Upper Tribunal [2014] EWCA Civ 937. This reflected a discussion of Maslov and Akpinar in an earlier part of the Upper Tribunal’s decision at paras. [10]-[12], concluding with the observation that it would be wrong to apply Maslov as if it created a specific additional immigration rule outside the Immigration Rules themselves. That is no doubt correct, but again it is, with respect, unclear why the Upper Tribunal criticised the FTT for making an error of this kind, as the FTT did not apply Maslov in this way, but only as setting out guidance relevant to application of the “very compelling circumstances” test in section 117C(6). That is the correct approach: see NA (Pakistan), [38] and [61], and El Gazzaz v Secretary of State for the Home Department [2018] EWCA Civ 532, [40]-[45]. On this appeal, Ms Giovanetti QC for the Secretary of State did not seek to support the decision of the Upper Tribunal on the basis of this part of its reasoning.[19]The Upper Tribunal’s own re-making of the decision reflected its reasoning in relation to the main ground of appeal which it had upheld in respect of the FTT’s decision. The Upper Tribunal proceeded on the basis of the facts as found by the FTT, as it was entitled to do. The Upper Tribunal correctly emphasised the significance of the appellant’s offending ([38]). It also gave particular weight to the fact that the appellant had spent almost all his life in the United Kingdom; but it observed nonetheless that “He is a single, childless young man” ([39]). The Upper Tribunal noted, as it was entitled to do, that the appellant’s lack of candour about his offending (as found by the FTT) made it hard to have confidence in his protestations about his future behaviour ([40]). It then summarised the position: “He cannot show very compelling circumstances because he cannot show that he cannot establish himself in Uganda and he has not identified any other circumstance or group of circumstances capable of supporting a finding that would satisfy the rules [sc and section 117C(6)]” ([40]).[20]The appellant appeals to this court on three grounds:(1) the Upper Tribunal was wrong to set aside the decision of the FTT for error of law on the main ground of appeal determined by it;(2) the Upper Tribunal erred in setting aside the decision of the FTT on the basis that it gave “inappropriate regard” to the judgment in Maslov; and(3) the Upper Tribunal erred when re-making the decision by proceeding on the basis that the appellant would not face very significant obstacles to integrating in Uganda.

Discussion

[21]In my judgment, this appeal should be dismissed. I take the grounds of appeal relied upon in turn.[22]As to Ground (1), I consider that the Upper Tribunal was right to hold that the conclusion of the FTT that the appellant had made out “very compelling circumstances …” falling within section 117C(6) was not one reasonably open to the FTT on the facts as found by it: i) The appellant had committed very serious offences when he was well into adulthood (compare and contrast the facts in Maslov and the references in the judgment indicating the potential relevance of the age at which the offending takes place, at [72] and [75]). He showed no remorse in relation to his offending. The risk of re-offending was assessed as medium to low, but it was not negligible; ii) The appellant is a single man, with no compelling family ties. There is ordinary love and affection between him and his family in the United Kingdom, but this is well below anything which could amount to compelling circumstances for the purposes of section 117C(6): cf NA (Pakistan), [33]-[34]. The FTT found that, although the appellant is an adult, family life exists with the adult family members with whom he has been living, because of an element of dependency (see Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31; [2003] INLR 170). However, the element of dependency identified by the FTT is purely economic in nature, as part of an arrangement of which the appellant (not the other family members) is the beneficiary. In light of the FTT’s finding that the appellant could start afresh in Uganda, the fact that he is the beneficiary of economic support from his family in the United Kingdom is not of any great weight; iii) Although the appellant has lived almost all his life in the United Kingdom, he is intelligent, educated, resourceful and in reasonable good health. He could cope with his bi-polar disorder. He does not face very significant obstacles to his integration into Uganda and could make a new start for himself there; iv) In my view, the Upper Tribunal was right to emphasise this last point to the extent that it did. The statutory regime and authority make it clear that a foreign criminal in the serious category has to put forward very strong grounds indeed under Article 8 to support a finding that his deportation is disproportionate. In the circumstances of this case, as found by the FTT, I consider that the appellant fell a long way short of being able to do that.[23]As explained above, Ms Giovanetti does not seek to support that part of the Upper Tribunal’s decision to which Ground (2) is directed. That part of the decision is distinct from the part of the reasoning on the basis of which the Upper Tribunal upheld the primary ground of appeal put forward by the Secretary of State. The error by the Upper Tribunal to which Ground (2) is directed is not a material error. The Upper Tribunal was right to set aside the FTT’s decision for the other reasons it gave.[24]I would add here that it seems to me well arguable that the FTT did err in another way in para. [35] of its decision, in a manner not highlighted by the Upper Tribunal, by treating the framework suggested by para. [71] in the Maslov judgment as a straitjacket for its Article 8 analysis in this case (see para. [13] above), and by failing to bring expressly into account in its discussion of “very compelling circumstances” its previous finding at para. [29] that the appellant did not face very significant obstacles to integrating into Uganda. However, it is not necessary to develop this point any further for the purposes of determining this appeal.[25]Ground (3) is not a sustainable ground of appeal. It only arises in relation to the appellant’s criticism of the reasoning of the Upper Tribunal in re-making the decision on his appeal. So far as that is concerned, for the hearing before the Upper Tribunal the appellant did not seek to put in issue the FTT’s finding at para. [29] regarding his ability to make a new start in Uganda. He put in no respondent’s notice on that point and his representative (who was different from counsel appearing for the appellant on this appeal) did not seek to go behind that finding in the submissions made to the Upper Tribunal. In those circumstances, it was plainly legitimate for the Upper Tribunal to proceed with its own assessment in light of that unchallenged finding of fact by the FTT, taking it into account alongside all the other findings of fact made by the FTT. There was nothing obviously wrong with the finding, such that the Upper Tribunal should have discounted it of its own motion even though the appellant’s representative did not seek to argue that it should be set aside.[26]In any event, I think this was clearly a finding which the FTT was entitled to make, and one which the Upper Tribunal was entitled to rely on. The FTT had seen the appellant give evidence and was in a position to make this assessment about him. Mr Seddon says that it is inconsistent with what I said in Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813; [2016] EWCA Civ 813, at [14], about integration in the country to which a foreign criminal is to be deported. I do not agree. The circumstances in Kamara were different, and there were particular reasons why the individual could not be expected to integrate if removed to Sierra Leone, as the tribunal had been entitled to conclude on the evidence before it in that case: see [12]. As I said in Kamara at [14], “… it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use”. That is what the FTT did in the present case. It reached a finding on this issue which cannot be said to be perverse or unlawful in any way.

Conclusion

[27]For the reasons given above, I would dismiss this appeal.[28]I agree.[29]I also agree.

Cited in 1 later judgment