Gibson Bennett Ackom (aka Bonsu) v Secretary of State for the Home Department [2025] EWCA Civ 537

[2025] EWCA Civ 537Case No CA-2024-001259
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Stephen Smith
UI-2023-005536
ON APPEAL FROM THE FIRST-TIER TRIBUNAL
First Tier Tribunal Judge Rodger
HU/01847/2022
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/04/2025
Before
LORD JUSTICE NEWEYLADY JUSTICE ANDREWSLORD JUSTICE NUGEE
Between
GIBSON BENNETT ACKOM (aka BONSU)Claimant/SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent/Appellant
Zane Malik KC (instructed by the Government Legal Department) for AppellantAryan Stedman and Kim Pullinger (instructed by direct access) for RespondentHearing Hearing date: 8 April 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 30 th April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

INTRODUCTION

[1]This is a second appeal brought by the Secretary of State for the Home Department (“the Secretary of State”) against the decision of the First-tier Tribunal (“FtT”) to allow the respondent’s human rights appeal against his deportation to Germany as a “foreign criminal”.[2]The respondent is a national of Germany of Ghanaian heritage, who was born in Dusseldorf on 24 January 1998. He is therefore now 27 years old. He came to the UK with his father in 2005, when he was 7 years old, and has lived here continuously ever since. He has never been back to Germany. Despite living in the UK for over 10 years, he did not apply for permanent residence prior to the UK’s exit from the European Union, and he made no application for leave under the EU Settlement Scheme. Having completed his secondary education with 8 GCSEs and 2 A-levels, he was employed until around 5 months before his imprisonment for the offences described below. He also played professional football in Cambridge and Northampton, and was good at other sports. He appears to have led an entirely blameless life until the age of 23.[3]In May 2021, the respondent was sentenced to a 12-month community order for possession of cannabis and dangerous driving. No separate penalty was imposed for driving without insurance and without a licence. He completed the unpaid work requirements and attendance centre requirements of the community order. However, on 10 September 2021 he was apprehended by the police in a car with some 40 wraps of cocaine, an unspecified quantity of cannabis and a large hunting knife. He pleaded guilty in the Magistrates’ Court to possession of the knife. Shortly before trial in the Crown Court, he pleaded guilty to possession of the cocaine with intent to supply and to simple possession of the cannabis on a basis which the Crown accepted, namely, that he had borrowed money from a drug dealer to pay off a gambling debt and that he was street dealing in order to pay back the drug dealer, who had threatened both the respondent and his mother. His mother had reported those threats to the police, but the respondent had refused to co-operate with them in taking any action against the dealer.[4]The respondent was released on bail, and a pre-sentence report was prepared which assessed him as being at a low risk of committing further offences. However, only a week after that report was written on 15 February 2022, he was apprehended by the police, again in a car, this time with a far larger quantity of cocaine, two “burner” phones (one of which was concealed in his underwear, and contained marketing messages), scales, and a large amount of cash, as well as an unspecified quantity of cannabis. He pleaded guilty to possession of Class A drugs with intent to supply and to simple possession of the cannabis at the plea and trial preparation hearing.[5]On 28 April 2022, he was sentenced to a total of 49 months’ imprisonment for the two offences of possession of cocaine with intent to supply, 35 months on the first offence and 45 months concurrently on the second offence which, as the sentencing judge acknowledged, marked a significant increase in the seriousness of his offending behaviour. No separate penalty was imposed for the possession of the cannabis on either occasion, or for the breaches of the community order. However, the sentencing judge passed a consecutive sentence of 4 months for the offence of having a bladed article in a public place. Although the total sentence exceeded 4 years, the individual elements of it did not.[6]On 6 August 2022, whilst he was serving the custodial term of the sentence, the Secretary of State served notice on the respondent of a decision to make a deportation order against him. His subsequent human rights claim was refused by the Secretary of State on 15 November 2022, and he appealed.[7]Both parties were legally represented at the hearing before the FtT, but the respondent did not appear on the CVP link and therefore could not be cross-examined on his short witness statement. He had been moved to a different prison a week before the hearing, and a CVP slot had not been booked for him. The judge, FtT Judge Rodger, refused to adjourn the hearing, as it had already been adjourned twice for reasons that were not the fault of the respondent, and he had agreed to the hearing proceeding in his absence. She heard evidence from the respondent’s mother (who had separated from his father in 2018) and his two brothers. His appeal was allowed in a decision promulgated on 6 September 2023 on the basis that he met all three of the requirements of Exception 1 under s.117C(4) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).[8]No issue is taken with the judge’s finding that the respondent met the first two requirements of Exception 1, but the Secretary of State challenges her finding that he met the third, namely, that there would be very significant obstacles to his integration into the country to which it is proposed he should be deported, namely, Germany. Permission to appeal to the Upper Tribunal (“UT”) was granted by UT Judge Sheridan on 20 January 2024.[9]In a decision promulgated on 27 March 2024, UT Judge Stephen Smith found no error of law in the FtT judge’s decision, though he described her findings as “generous” and acknowledged that they were unlikely to have been reached by some other judges. The issue for this court is whether there was such an error of law, and therefore the focus of our consideration must be on the FtT decision, rather than the UT’s views about it.[10]We were told by Mr Malik KC, representing the Secretary of State, that this is the first case since the withdrawal of the UK from the EU in which the court has been required to consider the proper approach to section 117C(4)(c) of the 2002 Act as it applies to an EU national, where the proposed state of return is an EU state. This is because whilst the UK was a member of the EU, a person in the respondent’s position, with the highest level of protection under EU law, almost certainly could not have been removed from the UK in these particular circumstances (by virtue of the application of the Immigration (European Economic Area) Regulations 2016.) In simple terms, his criminal behaviour, serious though it was, was not serious enough.[11]Bearing in mind that the FtT is a specialist Tribunal and that the judge had the advantage of hearing and seeing the evidence, (though not of seeing and hearing the respondent himself) an appellate tribunal or court should be slow to interfere with its broad evaluative assessment. As the UT judge recognised, it is important in cases such as this for an appellate tribunal or court to be alive to the danger of substituting their own views for those of the judge. If the finding of “very serious obstacles to integration” was within the range of decisions that were rationally open to the FtT, it cannot be disturbed unless there is some identifiable flaw in the judge’s treatment of the question to be decided, such as a gap in logic, a lack of consistency, a failure to take into account one or more material factors, or an inadequacy of reasons.[12]Whilst I was initially inclined to agree with the UT judge that there was no material error of law in the decision, I have been persuaded by Mr Malik that the FtT judge either failed to give adequate reasons for reaching the conclusion that this limb of the test was satisfied, or in substance she did not properly apply the test.

THE LEGAL FRAMEWORK

[13]Section 32 of the UK Borders Act 2007 (“the 2007 Act”) concerns automatic deportation of certain “foreign criminals” and, so far as relevant, provides: “(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 purposes of section 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).” (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.[14]Section 33 of the 2007 Act provides that section 32(4) and (5) do not apply where an exception in that section applies. Those exceptions include the situation where “removal of a foreign criminal in pursuance of the deportation order would breach a person’s Convention rights” – which include the rights protected under Article 8 ECHR. In this case, the facet of Article 8 which is engaged is the respondent’s right to respect for his private life.[15]Section 117A (2) of the 2002 Act requires judicial decision makers to have regard, in all cases, to the considerations listed in section 117B, and “in cases concerning the deportation of foreign criminals” to the considerations listed in section 117C “in considering the public interest question”.[16]Section 117C is entitled “Article 8: additional considerations in cases involving foreign criminals”. A “foreign criminal” is defined in section 117D (2) as a person who is not a British citizen, who has been convicted in the UK of an offence, and who(i) has been sentenced to a period of imprisonment of at least 12 months, or(ii) has been convicted of an offence that has caused serious harm or(iii) is a persistent offender. The respondent qualifies because each of the drug offences of which he was convicted resulted in a sentence of more than 12 months’ but less than 4 years’ imprisonment.[17]In cases such as the present, in which the decision to deport is based upon the offence or offences for which the individual concerned has been convicted, section 117C provides, so far as relevant, as follows:
“(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…”
It is common ground that the respondent did not meet Exception 2. (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.[18]Thus the issue as to whether there would be very significant obstacles to a foreign criminal’s integration into the country of destination country will only arise if they have been lawfully resident in the UK for at least half their life, and are socially and culturally integrated into the UK. In other words, they will always have established strong private life ties to the UK. Those ties, in themselves, are not enough to outweigh the public interest in their deportation.[19]It is not unusual for such a person to be unfamiliar with the destination country (having left it to settle in the UK many years previously), to have no friends or relatives there, and to be unable to speak the language of that country. They will also have all the problems of finding work that necessarily flow from having served a custodial sentence for at least one serious criminal offence.[20]The two exceptions were designed to reflect the body of pre-existing case law on Article 8 in this context, and to give effect to the policy of Parliament as to where the balance should be struck between the public interest in deportation of foreign criminals and a person’s right to private life, or family life, respectively. Thus, if all three limbs of Exception 1 are satisfied, deportation will be deemed to be a disproportionate interference with the individual’s right to pursue their private life in the UK. In other words, in those circumstances, the public interest in the deportation of foreign criminals would be outweighed in the Article 8 balancing exercise. If they are not satisfied, it would only be in very compelling circumstances that the individual concerned would be able to rely on Article 8 to resist deportation.[21]In Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813; [2016] 4 WLR 152, the Court of Appeal addressed the meaning of “integration” in the phrase “very significant obstacles to integration”. Sales LJ, with whom Moore-Bick LJ agreed, said this at [14]:
“…the concept of a foreign criminal’s “integration” into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) … is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. 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.”
Those dicta were quoted with approval by Sir Declan Morgan (with whom the other members of the Supreme Court agreed) in Sanambar v Secretary of State for the Home Department [2021] UKSC 30; [2021] 4 All ER 873, at [55].[22]In AS (Iran) v Secretary of State for the Home Department [2017] EWCA Civ 1284; [2018] Imm AR 169, the Court of Appeal rejected the submission that whether someone could become “enough of an insider” in the Kamara sense is to be determined (solely) by reference to their ties or links to the country of destination. The Court said it was clear that generic factors (such as good health, the ability to work, intelligence, academic abilities, ability to adapt to the local culture, and robustness of character) could be of significance and form part of the broad evaluative judgment of whether or not someone would encounter very significant obstacles to integration.[23]Both Kamara and the subsequent case of Parveen v Secretary of State for the Home Department [2016] EWCA Civ 932 (which concerned the meaning of the phrase “very significant obstacles to integration” in the different context of Paragraph 276ADE(i)(vi) of the Immigration Rules) acknowledged that the threshold is an elevated one, as the word “very” connotes. In Parveen Underhill LJ referred at [9] to Kamara and rightly noted that the passage in Sales LJ’s judgment at [14] focused more on the concept of integration than on what is meant by “very significant obstacles”. He then considered the observations made on that subject by a Presidential Panel of the UT in Treebhawon v Secretary of State for the Home Department [2017] UKUT 13 (IAC) and said:
“It is fair enough to observe that the words “very significant” connote an “elevated” threshold, and I have no difficulty with the observation that the test will not be met by “mere inconvenience or upheaval”
. But I am not sure that saying that mere “hardship or difficulty or hurdles, even if multiplied, will not ʽgenerallyʼ suffice” adds anything of substance. The task of the Secretary of State or the Tribunal in any given case is simply to assess the obstacles to integration relied on, whether characterised as hardship or difficulty or anything else, and to decide whether they regard them as ʽvery significantʼ.”

THE FTT DECISION

[24]After addressing the first and second limbs of Exception 1, and finding that they were satisfied, the FtT judge turned to the question of whether there were very significant obstacles to integration. She dealt with this issue at [28] to [31], setting out her conclusion at the outset, and stating at [31] that she had been assisted in reaching it by paragraph [14] of Kamara. The obstacles that she identified were as follows: i) The respondent has no family in Germany and the family did not retain any connections with Germany since residing in the UK. If he returns to Germany, he will have no support on return. His father has not returned to live in Germany since his parents separated, his mother is not in a position to return to Germany to be with the respondent and assist him in reintegrating, and both his brothers are established in the UK and are not likely to be able to go to Germany with him. ii) The family did not continue the culture of Germany in the family home whilst in the UK, as they are Ghanaian; the respondent is isolated from German culture, knowing nothing about it since he left Germany at the age of 7. iii) He does not speak, read or write German. iv) Whilst there may be many people who speak English in Germany, the respondent’s criminal conviction and his inability to speak German were likely to affect his ability to look for and obtain paid employment in Germany and the judge was not satisfied that he would be in a position to be able to support himself.

The judge said at [29]:

“I have of course taken into account that Germany is a European country and that he would be entitled to benefits on return to Germany if he were not able to find employment but overall I am satisfied that he would face very significant obstacles on reintegrating into a country which he has had no ongoing connection with for a very significant period of time and has not returned to since 2005.”
[26]The judge then went on to find that even if the respondent would not be likely to experience very significant obstacles to reintegrating into Germany she was satisfied that there were “very compelling circumstances” over and above the factors within Exception 1, which outweighed the public interest in his deportation: [32] to [34]. The supposedly “compelling” circumstances that she identified were the length of time that he had spent in the UK, the fact that his formative childhood years and early adult years had been spent here, his lack of ongoing connections with his home country, and what she described as “the close-knit family unit”.[27]The “very compelling circumstances” test under s.117C(6) applies to foreign criminals whose sentences exceed 4 years – which was not this case - and the factors identified by the judge would not cumulatively amount to justifiable reasons, let alone compelling reasons, to outweigh the public interest in the deportation of such a person. Nor would they be enough, in and of themselves, to justify allowing the appeal on Art 8 grounds outside the Immigration Rules in a case of a foreign criminal whose sentence was less than 4 years, where neither Exception 1 nor Exception 2 was satisfied.[28]That “fallback” aspect of the decision was understandably challenged by the Secretary of State in Ground 2 of her appeal. The UT did not deal with that ground because it upheld the FtT judge’s decision that there were “very significant obstacles to integration”. Before us, Mr Malik and Mr Stedman, who appeared with Mr Pullinger for the respondent, sensibly agreed that there was no need for this court to consider Ground 2. We were told that the respondent did not contend that his human rights claim could succeed outside the Immigration Rules, and he was not relying on s.117C(6). The appeal turned on Ground 1. If Ground 1 succeeded, then the Court of Appeal should either remit the matter for a fresh hearing in the FtT, or re-make the decision itself under s.117C(4).[29]In rejecting the Secretary of State’s argument in Kamara that the tribunal had failed to have proper regard to all relevant matters because no express mention was made of the fact that the appellant in that case was a young man in good health and capable of working, Sales LJ made these observations at [18]:
“There is no special rule regarding the reasons to be given by a tribunal deciding an immigration appeal. The conventional approach applies. The UT’s decision is to be read looking at the substance of its reasoning and not with a fine tooth-comb or like a statute in an effort to identify errors. In giving its reasons, a tribunal is entitled to focus on the principal issues in dispute between the parties, whilst also making it clear that it has considered other matters set out in the legislative regime being applied.”
[30]However, the conventional approach does not require an appellate tribunal or court to ignore obvious errors in the decision, taken as a whole. The fact that the FtT judge approached the question of what the position would be if Exception 1 was not satisfied in such an obviously flawed manner, by treating matters which, by themselves, could not satisfy the requirements of Exception 1, as very compelling circumstances which would justify allowing an Art 8 private life appeal, is something which has caused me considerable concern. When a fundamental error of that type is made, it seems to me that there will be less reason to assume, despite scant reasoning, that the judge has applied the legal test correctly when determining that Exception 1 applied.[31]Mr Malik submitted that even making allowances for the fact that the FtT does not have to address every single argument in its decision, and even assuming that all the fact-findings made in the earlier part of the decision were taken into account, (including, for example, the findings that the respondent had behaved well in prison and attended courses on bricklaying and construction) the FtT judge did not apply the test in the way that Parveen and Kamara required. She failed in substance to address the question whether the obstacles she had identified would prevent or seriously inhibit the respondent’s integration in terms of understanding how life in German society is carried on, and his 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 his private life.[32]Whilst the judge’s reasons did not need to be detailed, Mr Malik argued that they still needed to be sufficient to explain why it was that she had concluded that the elevated threshold was met. None of the generic factors that could have a bearing on the assessment was specifically addressed in the decision. Mr Malik submitted that it is possible for someone to have no immediate links with another country and to be unable to speak the language on arrival, but yet to have enough understanding of how life in that country is carried out to be able to integrate into its society, particularly if they are intelligent, resourceful and have a certain robustness of character (as demonstrated by the fact that within the space of a year the respondent had moved from low-level street dealing for fear of reprisals from a drug dealer, to becoming that person’s “trusted lieutenant,” in the words of the sentencing judge).[33]In this case, the country of destination is Germany, which is a highly developed country. Mr Malik submitted that although German is the language which is normally spoken there, societal and cultural norms in Germany, as in many other EU countries, are not substantially different from those in England. The respondent would not be going into a completely alien environment, and it would not take very long for anyone brought up in England to understand how life is carried on in Germany.[34]Mr Malik submitted that the respondent had the intelligence and application to be able to learn German and that there are apps which he could download which would help him to do so. The respondent lived in Germany up to the age of 7; he would have heard the German language spoken outside his home during his formative years, and even if he had since forgotten it, that previous exposure to it might help to speed up his understanding of and ability to communicate in German sufficiently to engage with others on a day to day basis. Mr Malik pointed out that despite the points made in the original decision letter, the respondent had chosen to say nothing in his brief witness statement to suggest that he would be unable to find work in Germany or to indicate that he could not learn German within a reasonable time.[35]However, even if due to his inability to speak German the respondent would encounter difficulties in finding work in a shop or on a building site, in the letter conveying the Secretary of State’s decision to refuse the human rights claim, the decision maker had drawn attention to information about the benefits available in Germany, including social integration income and unemployment benefits, and to a 55-page booklet produced by the European Commission explaining each of the available benefits and how to apply for them. That booklet was in evidence before the FtT, and the judge had accepted that he could claim such benefits.[36]In Binbuga v Secretary of State for the Home Department [2019] EWCA Civ 551, [2019] Imm AR 1026, when considering the concept of “social integration” the Court of Appeal referred at [56] to “various incidents of society, such as clubs, societies, workplaces or places of study”. Mr Malik submitted that the Germans, like the English, have a great liking for football, a sport in which the respondent is proficient and which he had the ambition to play professionally. He could no doubt play football in Germany, at least as a social/leisure activity.[37]Likewise, when considering “cultural” integration the Court referred at [57] to “core values, ideas, customs and social behaviour”. The UK and Germany have a shared culture of democracy, and the same core values, respect for the rule of law and respect for human rights and civil liberties. The FtT judge made no mention of these shared values and societal norms. In considering deportations to member states of the European Union, Mr Malik submitted it is incumbent on the fact-finding tribunal to direct itself to these shared considerations and make its assessment in that context, but that was not the approach taken by the FtT judge, or at least she said nothing to indicate that it was.[38]As for getting by on a day to day basis, on the evidence before the FtT some 60% of the population speak English, and the Germans now begin studying English in primary school. Proficiency is greater amongst the younger population (including the respondent’s demographic) and in popular tourist areas. Proficiency in English is much higher in Germany than in other European countries such as France and Spain. The judge accepted that many people in Germany speak English. Whilst she considered the respondent’s inability to speak German coupled with his criminal record made it “unlikely” that he would be able to get a job, she did not expressly address whether he would be able to learn the language within a reasonable time. Nor did she directly address the question whether his inability to speak German would prevent him from being accepted in German society or otherwise cause serious impediments to his ability to make and form relationships. Had she done so, in the light of the evidence it is unlikely that she could have rationally concluded that it would.[39]Alternatively, Mr Malik submitted that if, contrary to his primary submission, the judge did address the substance of the elevated test by reference to the considerations articulated by Sales LJ in Kamara, she gave insufficient reasons for her conclusion that it was met. Although she accepted that as a German national, if the respondent had difficulty in getting a job he would be entitled to benefits, and she said that she had taken into account the fact that Germany is a European country, she did not explain why, having taken those matters into account, she had still reached the conclusion “overall” that he would be prevented from or substantially inhibited from integrating into German society, forming relationships and developing a private life there, by the fact that he had no ties there, was not familiar with Germany, could not (yet) speak the language and had lived in England for most of his life.[40]Mr Malik contrasted the approach taken by the tribunal in Kamara, where the Court of Appeal declined to interfere with the decision that there were “very significant obstacles” to integration. It was proposed that the appellant in that case, who was young and able-bodied, be deported to Sierra Leone. Paragraph [12] of the judgment shows that the tribunal found that he had no family, familial links or friends in Sierra Leone, that there were no social or cultural ties of a nature which would provide him with the basis for establishing a private life and thus integration in that country; that English is an officially recognised language in Sierra Leone but is primarily used only for business, government or media purposes, rather than normal day-to-day life, and that the appellant did not speak any of the 23 local languages.[41]Yet Sierra Leone is not like an EU country. The tribunal found that Sierra Leone “is a highly contextualised society, many things in the language are not expressed, instead interpreted through non-verbal cues or cultural norms” with which the appellant would have no familiarity. There was no evidence that he would be able to integrate in Sierra Leone within that kind of cultural context. Moreover, the continuing hardships experienced by the population in Sierra Leone at that time in relation to the country’s fight against Ebola would make it even more difficult for an outsider with no social, cultural or familial links with that country to integrate there. That, Mr Malik contended, provided a clear and cogent explanation of why the obstacles identified by the tribunal in that case, which were common to many cases of this nature, were in practice going to be significant impediments to Mr Kamara being accepted as enough of an insider in Sierra Leone to be able to establish and develop his private life there.[42]In response, Mr Stedman accepted that each case requires careful fact-specific analysis and that this must be done within the context of the particular receiving state. It is incumbent on the tribunal to make a realistic assessment of the “on the ground” practical realities. Regard must be had to the likely consequences of the obstacles to integration which have been identified. However, there is nothing to stop the tribunal from looking at the identified obstacles cumulatively. The test is an objective one and requires consideration of any reasonable step that could be taken to avoid or mitigate the obstacles identified: see NC v Secretary of State for the Home Department [2023] EWCA Civ 1379 at [25] and [26]. Mr Stedman also accepted that the tribunal should look at generic factors, but the weight to be attributed to them is a matter for the tribunal.[43]Although Mr Stedman conceded that the respondent had enough acumen to be able to learn to speak German, he submitted that it could be inferred from the decision that the judge had concluded that he could not do so within a reasonable time. Mr Stedman also submitted that integration is more multi-dimensional than simply being able to find a job and to subsist without becoming destitute. He accepted that the Germans have a shared love of football, and that the respondent would be able to participate in this and other sporting activities in Germany. However, he submitted that there was nothing to equip the respondent to cope with the challenges that he would face when seeking to establish and develop a private life in Germany. It was important not to place undue reliance on robustness of character, particularly when that “robustness” was inferred from the nature of the criminal offence(s) of which the individual had been convicted. It was easy to fall into the trap of being unduly swayed by abhorrence at the nature of a person’s particular criminal offending.[44]Mr Stedman acknowledged that the FtT decision was not perfect; in particular, the reasoning in this section of it was repetitive. However, he said that the court should bear in mind that judges of the First-tier Tribunal work under extreme pressures in terms of time constraints and caseload. This decision was well-structured and adequately reasoned. The judge set out the test in terms more than once; she referred to the key passage in Kamara in which the test is explained, and she followed it. She reached a conclusion which she was entitled to reach, even though other judges might have taken a different view. Therefore, like the UT, this Court should find there was no reason to interfere with her broad evaluative judgment.

DISCUSSION

[45]Where a relevant point or piece of evidence is not mentioned in a decision of this nature, it does not mean that it has been disregarded. Nor should an appellate court readily assume that a judge – particularly a specialist immigration judge – has erred in law simply because every step in their reasoning has not been fully set out. The factors which this judge identified – a lack of ties with the country of destination, no familiarity with that country, no friends or family there to help with integration, and an inability to speak the language – might well suffice in an appropriate case to demonstrate “very serious” obstacles to integration in that country, as they did on the facts of Kamara.[46]However, as I have already noted at [19] above, those factors are not unusual in cases of this nature. They are not inevitably determinative. As this Court recognised in AS(Iran) it is possible for migrants with no ties to the country of destination, and no contacts there, and who cannot speak the language on arrival, to integrate and develop a private life there within a reasonable time; much will depend on the country and on the nature and character of the individual concerned. Here one must assume that the judge had in mind everything she knew or had found about the respondent and his character, even though she did not set it out again in this part of her decision. However, the country concerned is Germany, and because life in Germany is not so different from life in the UK, one might have expected something more to have been said about that in this context than simply: “I have taken into account that Germany is a European country”.[47]Every individual to whom these statutory provisions apply will have a criminal record and will have served a prison sentence of at least 12 months. Whilst of course the judge was entitled to take account of those matters, the problems which those two specific factors might present in obtaining employment in another country, even another European country, cannot in themselves suffice to amount to very serious obstacles to integration, otherwise no person in this category would ever be deported. In the present case, the judge identified that these factors coupled with the respondent’s current inability to speak German would be likely to prevent him from getting a job, but then she went on to accept that he would be entitled to benefits in Germany if he was unable to find employment. It was not found that he would have any serious problem in claiming those benefits. Thus, there was no question of his being destitute.[48]What does not emerge clearly from the decision is why the FtT judge reached the conclusion that a fit, reasonably intelligent young man in his twenties, who had good educational qualifications and had been employed, and who was willing to undergo courses in prison to equip him with new skills, even if he were forced to live on benefits for a time, would be precluded from integration, in the sense explained in Kamara, by the current lack of any friends or family in Germany, the fact that he had not been back to Germany since he left at the age of 7, and the fact that he did not yet speak German. I do not accept that it is to be inferred that the judge considered the respondent’s ability to learn German, let alone that she must have concluded that he would have been unable to do so within a reasonable time. Yet if she was going to place as much weight as she did on the impact of his inability to speak the language, that was plainly a material consideration in terms of mitigating the immediate disadvantage.[49]Ultimately, having considered the arguments advanced by both counsel, I have concluded that Mr Stedman did not have an answer to the points that Mr Malik made. In particular, he failed to demonstrate by reference to any specific passages in the decision that the judge had, in substance, addressed whether the obstacles she identified would prevent or seriously inhibit this respondent from integrating into Germany (as opposed to making integration difficult or challenging). He showed us nothing to demonstrate that she must have turned her mind to the question whether the respondent had the capacity to participate in German society, or to operate on a day to day basis, or asked herself whether he would have a reasonable opportunity to be accepted there, or whether he would be inhibited from building relationships in that country. I agree with Mr Malik that if the FtT judge did properly apply the test in Kamara, her reasoning is not sufficiently expressed.

CONCLUSION

[50]For those reasons, I would allow this appeal on the basis that the judge erred in law in not properly applying the Kamara test to the facts as found, or that if she did, she gave insufficient reasons for reaching the conclusion that the test was satisfied in the circumstances of this case, particularly given that the proposed country of return is Germany, and life in Germany is not significantly different from life in the UK. In those circumstances, it is unnecessary to consider Mr Malik’s alternative argument that the decision was irrational. I agree with Mr Malik that the fairest course would be to send the matter back to the specialist tribunal, the FtT, for a fresh hearing before a different judge, rather than to re-make the decision ourselves.[51]I agree.[52]I also agree.

Cited in 1 later judgment