Secretary of State for the Home Department v Yan Bossade [2015] UKUT 415 (IAC)

[2015] UKUT 00415 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 20 April 2015
THE IMMIGRATION ACTS
Before
UPPER TRIBUNAL JUDGE STOREYUPPER TRIBUNAL JUDGE DAWSON
Between
Secretary of State for the Home DepartmentAppellantMR YAN BOSSADERespondent(ANONYMITY DIRECTION not made)RespondentMr I Jarvis, Home Office Presenting Officer for AppellantMr K Mak, Solicitor, instructed by MKM Solicitors for Respondent1. For courts and tribunals, the coming into force of Part 5A of the Nationality, Immigration and Asylum Act 2002 (ss.117A-D) has not altered the need for a two-stage approach to Article 8 claims.2. Ordinarily a court or tribunal will, as a first stage, consider an appellant’s Article 8 claim by reference to the Immigration Rules that set out substantive conditions, without any direct reference to Part 5A considerations. Such considerations have no direct application to rules of this kind. Part 5A considerations only have direct application at the second stage of the Article 8 analysis. This method of approach does not amount to according priority to the Rules over primary legislation but rather of recognising their different functions.3. In the context of foreign criminal cases (because the provisions found in Part 13 of the Rules are a complete code encompassing both stages of the Article 8 assessment), this means that Part 5A considerations have no direct role at the first stage when a court or tribunal is deciding whether an applicant meets the substantive conditions of paragraphs 399 or 399A of the Immigration Rules. They only have direct application at the second-stage, viz. assessment under the rules that involve a proportionality assessment: viz. paragraph 398 and (in revocation cases) paragraph 390A. In cases other than those concerning deportation of foreign criminals, where the Rules are not a complete code, it may still be necessary to conduct this second stage outside the Rules: see Secretary of State for Home Department v AJ (Angola)[2014] EWCA Civ 1636 at [39].4. Whilst Part 5A considerations may have indirect application to the Immigration Rules, including those setting out substantive conditions such as paragraphs 399 and 339A, this is limited to their role as statements of principles that can be used where appropriate to inform the meaning of key terms set out in such paragraphs.5. New paragraph 399A of the Immigration Rules remains similar to the old in considering the foreign criminal deportee’s situation both in the UK and in the country of return. However, so far as concerns focus on a person’s situation in the UK, time in the UK is no longer relevant as such except in the context of lawful residence (399A(a)) and paragraph 399A(b) introduces new criteria that relate to social and cultural integration in the UK. So far as concerns focus on the situation in the country of return, paragraph 399A no longer looks at ‘ties’ per se but at the more inclusive notion of integration and obstacles thereto. By requiring focus on integration both in relation to a person’s circumstances in the UK as well as in the country of return, the new Rules achieve a much more holistic assessment of an appellant’s circumstances. Thereby they bring themselves closer to Strasbourg jurisprudence on Article 8 in expulsion cases which has always seen consideration of both dimensions as requiring a wide-ranging assessment: see e.g.Jeunesse v Netherlands (GC) App.No. 12738/10, 31 October 2014, paragraphs 106-109.DECISION AND REASONS
[1]The respondent (hereinafter “the claimant”) is a national of the Democratic Republic of Congo (DRC) aged 29. On 23 July 2013 the appellant (hereinafter “the SSHD”) decided to make a deportation order against him on the ground that he was a foreign criminal sentenced to a period of imprisonment of at least twelve months.[2]In a determination of 24 June 2014, a First-tier Tribunal (FtT) panel comprising Judge Abebrese and N.L.M. Richardson allowed the claimant’s appeal under Articles 3 and 8 of the ECHR and paragraph 276ADE of the Immigration Rules. On 28 January 2015 we set aside the decision of the First-tier Tribunal for error of law (the principal errors found were inadequate treatment of Article 3; failure to recognise that the claimant was shut out from paragraph 276ADE of the Immigration Rules by suitability requirements; and failure to assess objectively the issue of ties in the country to which he would be deported). In our decision we observed that whilst ideally the further hearing would not take place before the Upper Tribunal had issued new country guidance on the Democratic Republic of Congo, we might find it necessary, if that were delayed, to proceed with the case nonetheless. We made this observation in light of the fact that the Upper Tribunal had taken steps to convene a new country guidance case to address the issue of whether there was a risk on return to criminal deportees, which Phillips J had had to engage withP (DRC) R (on the application of) v Secretary of State for the Home Department[2013] EWHC 3879 (Admin).[3]At the hearing before us we explained to the parties that rather than adjourn to await the pending country guidance case, which was then imminent, we would hear their submissions and then give them a specified period in which to make written submissions dealing with the implications for our decision of the new country guidance once reported.Following the reporting of that decision, BM and Others (returnees - criminal and non-criminal) Democratic Republic of Congo (CG) [2015] UKUT 293 (IAC), on 2 June 2015, we duly received submissions. It is convenient to say at this stage that in light of the BM decision we are entirely satisfied that the claimant would not face risk on return to the DRC by virtue of the fact that he is a foreign national offender (FNO). He has never asserted that he falls into any of the risk categories identified in BMorother country guidance cases on the DRC. Mr Mak’s further written submission that we should find that the claimant would face a real risk of being detained for more than a day because he had been away from the DRC so long was unsupported by any evidence and can be rejected as purely speculative. Our conclusion is that his case cannot succeed on asylum-related grounds; it hinges entirely on Article 8 ECHR.[4]The claimant who was born in 1986 came to the UK when aged 4. He was granted indefinite leave to remain (ILR) in 1998. He began committing offences from 2002, with a history of convictions in 2002, 2004, 2005, 2006, 2008, 2009, 2010 and 2011, culminating in a conviction at Croydon Crown Court for robbery and related offences for which he received a sentence of 42 months’ imprisonment. On 2 August 2006 the claimant was issued with a “warning letter” about his criminal behaviour (whilst imprisoned in HMP Glen Parva).[5]At the hearing before the FtT the claimant gave evidence as did his mother. The claimant stated that he had two brothers born in the UK. They had different fathers. The claimant had a difficult relationship with his stepfather. He entered a life of crime which spiralled and eventually he was sentenced to a term of imprisonment. In his statement of May 2014 he said his most recent spell in prison and the deportation decision had made him realise he had to change. He now accepted full responsibility for his crimes and his behaviour. He had learnt and developed the right skills to equip himself better for life outside. He had no memory of life in the DRC and had always considered himself British. He had never met his own father. He had never been outside the UK. He did not speak Lingala or French. In the DRC he would have no friends, family, home or knowledge of the language or culture. He was not aware he had uncles in the DRC.[6]The FtT also heard from the claimant’s mother. She explained that when he was a teenager he refused to listen to instructions or be disciplined. She believed it was possible for her son to have changed.[7]Before the FtT there was also an OASys Report indicating that there was still an element of risk in respect of the claimant and that his licence was due to expire in October 2015. The claimant had had a number of opportunities to stop re-offending which he had not taken advantage of.[8]Shortly after we set aside the FtT decision, the parties were sent directions putting both on notice that it was their responsibility to file any documentary evidence upon which reliance was placed. No further evidence was produced in response to that direction nor was there any application for the claimant or any other witness to give oral evidence. In such circumstances we indicated to the parties that the hearing before us would be confined to submissions.

Submissions

[9]At the outset both parties said that we should decide the claimant’s appeal, not under the version of the Immigration Rules in force at the date of decision but as at the date before us. That meant looking at the Rules as they had been amended on 28 July 2014. Both parties also reminded us of the need to apply Part 5A of the 2002 Act, inserted by s.19 of the Immigration Act 2014. Before going further, it is convenient to set out in full paragraphs 398 and 399A of the Rules(as amended on 28 July 2014) and Part 5A of the Act: Paragraphs 398 and 399A provide:
“398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and (a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; (b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or (c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A. … 399A. This paragraph applies where paragraph 398(b) or (c) applies if – (a) the person has been lawfully resident in the UK for most of his life; and (b) he is socially and culturally integrated in the UK; and (c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”
Headed “Article 8 of the ECHR: Public Interest Considerations”, Part 5A provides: 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). 117BArticle 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 (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. 117CArticle 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. (3) For the purposes of subsection (2)(b), a person subject to an order under—(a) section 5 of the Criminal Procedure (Insanity) Act 1964 (insanity etc), (b) section 57 of the Criminal Procedure (Scotland) Act 1995 (insanity etc), or (c) Article 50A of the Mental Health (Northern Ireland) Order 1986 (insanity etc), has not been convicted of an offence. (4) In this Part, references to a person who has been sentenced to a period of imprisonment of a certain length of time— (a) do not include a person who has received a suspended sentence (unless a court subsequently orders that the sentence or any part of it (of whatever length) is to take effect); (b) do not include a person who has been sentenced to a period of imprisonment of that length of time only by virtue of being sentenced to consecutive sentences amounting in aggregate to that length of time; (c) include a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders) for that length of time; and (d) include a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period, provided that it may last for at least that length of time. (5) If any question arises for the purposes of this Part as to whether a person is a British citizen, it is for the person asserting that fact to prove it."

Paragraphs 398 and 399A provide:

[10]Mr Jarvis for the SSHD contended that because the claimant had been sentenced to less than 4 years (3 years, 9 months) he fell under paragraph 399A(a)-(c). As regards paragraph 399A(a), Mr Jarvis accepted the claimant met this condition as he had been lawfully resident in the UK for most of his life: he was granted ILR on 24 September 1998, which meant he had over 16½ years’ lawful residence.[11]As regards paragraph 399A(b), however, Mr Jarvis argued that notwithstanding he had received all his schooling in the UK and had a mother and two half-brothers who were British citizens, he was not socially and culturally integrated in the UK. He had spent significant periods of his residence in prison and excluded from society. Even when not in prison his pattern of offending showed his lifestyle was anti-social. He had also failed to show he was financially independent to any significant degree whilst he was not in prison. His offending, namely repeated robbery, showed an obvious disregardfor the safety and wellbeing of fellow citizens.[12]In any event, even leaving paragraph399A(b) aside, according to Mr Jarvis the claimant could still not meet the conditions set out in paragraph399A(c), which required him to show that there would be very significant obstacles to his integration into the country to which it is proposed he is deported. It would be open to the claimant to rebuild his private life in the DRC and integrate into that country’s society. It was not accepted he was not conversant in French, bearing in mind his upbringing with a mother from the DRC. He could use whatever skills he had accrued in the UK to help him get by in the DRC. He had not produced any evidence of mental or physical disability. The wording of paragraph399A no longer referred anywhere to “ties” as such, but clearly the matter of family connections was just as relevant under the new wording. The claimant had not shown he could not look to support from family in the DRC whether that be financial, emotional etc. Long residence was not enough.[13]Mr Jarvis said that the claimant could not benefit from paragraph 398 as he could not meet the very high threshold of “very compelling circumstances over and above those described in paragraphs 399 and 399A”.[14]Turning to Part 5A of the 2002 Act, Mr Jarvis said that the Upper Tribunal was obliged to take account of its provisions, including when making the proportionality assessment under paragraph 398. Section 117C(3) applied to the claimant and as such significant weight should be given to the public interest in deporting him. The claimant was a serious recidivist criminal with an appalling criminal history and as such the public interest in deportation was particularly strong in terms of the historical impact of his offences; the risk of re-offending in the future; and the importance of general deterrence. The claimant’s extensive involvement with the criminal justice system has also caused a substantial cost to the public purse.[15]Mr Mak began his submission by taking issue with the Upper Tribunal’s statement in its error of law decision that the claimant had four uncles in the DRC. That was not the case and not what the claimant had said in his witness statement in May 2014. He had two uncles in Congo, Brazzaville and two whom he had lost touch with – hence none in the DRC. The claimant’s evidence about this was not challenged by the respondent before the FtT.[16]As regards the relevant Immigration Rules, Mr Mak said he did not seek to argue that the claimant could show “very compelling circumstances” under paragraph 398, but he did not need to as he met paragraph 399A. Mr Mak noted that in that regard the SSHD agreed the claimant met paragraph 399A(a), so there was only dispute over the two other conditions set out in paragraph399A(b)-(c). He asked us to find that the claimant clearly did meet paragraph399A(b) by virtue of the fact that the UK was effectively the only country in which he had ever lived, all his schooling had been here, he only spoke English, his mother and half-brothers were British and he had shared his upbringing with them. The fact that he had been lawfully resident in the UK over half his life also fed into the paragraph399A(b) assessment. It was dangerous and wrong to read paragraph399A(b) as requiring (social and cultural) integrative behaviour free of criminality because the provision was predicated on someone being a foreign criminal with less than four years’ sentence. In respect of paragraph 399A(c), the claimant could show that there would be very significant obstacles to his integration in the DRC. He had only lived there as a baby. He had no ties in the DRC. He did not speak Lingala. If the claimant could not satisfy paragraph399A(b) or (c), then who could? The provision was not intended to allow only a small minority to satisfy its requirements. 1 7. Mr Jarvis enunciated as a general proposition that the new version of the Rules dealing with foreign criminals was not intended to effect any drastic changes but rather to ensure there was closer alignment with higher court decisions. That was true, he said, both of the Rules in general and paragraphs 399, 399A and 398 in particular. The main focus of this appeal was paragraph 399A. Mr Mak did not seek to advance any general argument regarding the new Rules but was in agreement with Mr Jarvis that, together with Part 5A, paragraph 399A was at the heart of the claimant’s appeal.

Cited in 5 later judgments