“as a matter of the ordinary use of language it seems to me unnatural to describe a person’s presence in the UK as ‘unlawful’ (which is not necessarily the same as not being ‘lawful’) when there is no specific legal obligation of which they are in breach by being here and no legal right to remove them …”
“The reason why it is reasonable to place little weight on private life established while a person’s presence in the country has been ‘unlawful’ is surely that he or she has no legitimate expectation of their continuing presence in the country and may be removed at any time. It is similar, but a fortiori, to that underlying section 117B(5), relating to private life developed while a person’s immigration status is ‘precarious’. It is hard to see how that policy can apply to the situation of a person born in the United Kingdom to parents who were lawfully present and who in due course became settled, who is legally irremovable and who is entitled to acquire British nationality: such a person’s expectation that they will continue to live indefinitely in the UK is entirely legitimate.”
“residence which is continuous residence pursuant to: (i) existing leave to enter or remain; or (ii) temporary admission withinsection 11 of the Immigration Act 1971 (as previously in force), or immigration bail withinsection 11 of the 1971 Act , where leave to enter or remain is subsequently granted; or (iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.”
“(2) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom … … (5) A person liable to be detained under sub-paragraph (2) or (3) above shall, while not so detained, be subject to such restrictions as to residence and as to reporting to the police as may from time to time be notified to him in writing by the Secretary of State.”
“A person is a refugee within the meaning of the [Refugee] Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognised because he is a refugee.”
“51. Whether the applicant is in the UK unlawfully, or is entitled to remain in the UK only temporarily, however, the significance of this consideration depends on what the outcome of immigration control might otherwise be. For example, if an applicant would otherwise be automatically deported as a foreign criminal, then the weight of the public interest in his or her removal will generally be very considerable. If, on the other hand, an applicant – even if residing in the UK unlawfully – was otherwise certain to be granted leave to enter, at least if an application were made from outside the UK, then there might be no public interest in his or her removal. … 52. It is also necessary to bear in mind that the cogency of the public interest in the removal of a person living in the UK unlawfully is liable to diminish – or, looking at the matter from the opposite perspective, the weight to be given to precarious family life is liable to increase – if there is a protracted delay in the enforcement of immigration control. …”
“… when assessing the length of the applicant's stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it evidently makes a difference whether the person concerned had already come to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult.”
“If the person has been resident in the UK from a very early age it is unlikely that offending alone would mean a person is not socially and culturally integrated.”
“lawfully resident”: s.5(1))[2018] UKUT 00199 (IAC) , para 15, which reasoned that, as criminal offending and imprisonment are already part of the definition of a “foreign criminal”, it could not “have been intended that, in any general sense, the commission of an offence would demonstrate a lack of integration.”
“In my judgment, the effect of the claimant’s pattern of offending over a period of some 3 years and 7 months and his periods in detention was to break the social and cultural integration he had acquired during his childhood. The question therefore is whether since February 2017 he has reacquired the status of someone who is socially and culturally integrated.”
“The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.”
“That was so not merely because of his conviction for a serious offence and the time which he had spent in prison as a result, but also because of the long period of anti-social criminal behaviour leading up to that conviction, the complete absence of any family life in this country for what was at the time of the hearing before the First-tier Tribunal the last 14 years, and the absence of any evidence of social or other connections here other than the mere fact of his lawful presence in this country. This was no doubt an unhappy life, particularly as there are some indications that AM wanted to reform, but it cannot be described as a life of social or cultural integration in this country.”
“Nigeria is as foreign to us as China. We don’t know it and we don’t know anyone there.”
“It is my view that, if returned, he will therefore not access any treatment programme and will revert to a life of violence and crime being how he knows how to survive.”
“… if all he could advance in support of his article 8 claim was a ‘near miss’ case in which he fell short of bringing himself within either Exception 1 or Exception 2, it would not be possible to say that he had shown that there were ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’. He would need to have a far stronger case than that by reference to the interests protected by article 8 to bring himself within that fall back protection. But again, in principle there may be cases in which such an offender can say that features of his case of a kind described in Exceptions 1 and 2 have such great force for article 8 purposes that they do constitute such very compelling circumstances, whether taken by themselves or in conjunction with other factors relevant to article 8 but not falling within the factors described in Exceptions 1 and 2. The decision maker, be it the Secretary of State or a tribunal, must look at all the matters relied upon collectively, in order to determine whether they are sufficiently compelling to outweigh the high public interest in deportation.”
“If a Gurkha can show that, but for the historic injustice, he would have settled in the United Kingdom at a time when his dependent (now) adult child would have been able to accompany him as a dependent child under the age of 18, that is a strong reason for holding that it is proportionate to permit the adult child to join his family now.”
“In short, the court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion.”
“As the factual and legal situation of a settled migrant and that of an alien seeking admission to a host country – albeit in the applicant’s case after numerous applications for a residence permit and many years of actual residence – are not the same, the criteria developed in the court’s case-law for assessing whether a withdrawal of a residence permit of a settled migrant is compatible with article 8 cannot be transposed automatically to the situation of the applicant. Rather, the question to be examined in the present case is whether, having regard to the circumstances as a whole, the Netherlands authorities were under a duty pursuant to article 8 to grant her a residence permit …”
“… in distinguishing Maslov on the simple basis that JT's presence in this country had not been shown to be lawful, the tribunal seems to have regarded Maslov as being entirely irrelevant to JT's case. Whilst the point of distinction was correct as far as it went, it was not a proper basis for disregarding what was said in Maslov about the position of those who have been in the host country since early childhood or about the significance of the age at which criminal offences were committed ...”
“For my part, having looked carefully at the extract from JO and JT to which reference has been made, I cannot see any room for manoeuvre that would allow the very specific facts of the case to alter what is a strict and plainly expressed legal structure. Either an individual's presence is ‘lawful’ or ‘unlawful’ in immigration terms. The determination of that status then in turn indicates whether or not the need for ‘very special reasons’ applies to his case. ED cannot claim ‘lawful’ status. Therefore, as a matter of law, Maslov does not apply to his case and the judge was entirely correct in the approach that she took.”
“I accept that paragraphs 71 to 74 of Maslov set out factors which are relevant considerations in deportation cases, but the weight attached to those factors is diminished if the deportee is unlawfully present in the host country. I do not accept that paragraph 75 sets out principles of law which apply to criminal offenders who are unlawfully present in a country.”
“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’. …”