(Immigration and Asylum Chamber)
Green (Article 8 – new rules)  UKUT 254 (IAC)
THE IMMIGRATION ACTS
Heard at: Columbus House, Newport
On: 15 April 2013
THE PRESIDENT, THE HON MR JUSTICE BLAKE
DEPUTY UPPER TRIBUNAL JUDGE PHILLIPS
For the Appellant: Mr K Hibbs, Home Office Presenting Officer
For the Respondent: Mr C McCarthy, Counsel instructed by Owen Stevens Solicitors
1. In Nagre v SSHD  EWHC 720 (Admin) the Administrative Court approved the guidance of the Upper Tribunal in Izuazu  UKUT 45 (IAC) in turn endorsing the two stage approach recommended by the Upper Tribunal in MF (Article 8 – new rules) Nigeria  UKUT 393 (IAC). Sales J added the proviso that it would not always be necessary to move on to the second stage and consider Article 8 proportionality apart from the provisions of the Immigration Rules. Where the rules and the learning on Article 8 were in harmony the answer given by the rules might render further inquiry unnecessary, unless there were exceptional circumstances. In that case the difference between the rules and the Strasbourg principles was marginal.
2. It follows from that case, and the decisions of the UT in Ogundimu (Article 8 – new rules) Nigeria  UKUT 60 (IAC) that judges hearing appeals against decisions made after 9 July 2012 should consider how the Immigration Rules would apply, and make any relevant findings in that context before considering the wider application of Article 8 and the jurisprudence of the Upper Tribunal, and the higher courts, either to decide whether there are exceptional factors not contemplated by the Rules or that the decision is an unlawful one and disproportionate to the legitimate aim. Pending any further guidance from the Court of Appeal, judges of both chambers should apply the principles set out in Izuazu.
3. Paragraph 398 of the Immigration Rules makes no reference to persons who commit crimes as juveniles. By contrast the decision of the Grand Chamber in Maslov v Austria  ECHR 546 is clear that “when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult”.
4. As the Upper Tribunal has explained in Izuazu and Ogundimu, where the Immigration Rules do not reflect the established principles under human rights law it is the law as laid down in primary legislation that must be followed.
5. Adding to what the Tribunal said in Masih (deportation – public interest – basic principles) Paksitan  UKUT 46 (IAC), where the course of conduct relied on in the deportation decision includes conduct that has not resulted in a criminal charge or conviction, the Tribunal will need to take that conduct into account despite the absence of sentencing remarks (see Bah (EO (Turkey) – liability to deport)  UKUT 196 (IAC)).
DETERMINATION AND REASONS
1. This is the Secretary of State’s appeal against a decision of a panel of the First-tier Tribunal (Judge Britton and Dr T Okitipi) dated 17 October 2012. In that decision the panel allowed the respondent’s appeal against a decision on 22 August 2012 to make a deportation order against him. We shall refer to the respondent as the claimant, although he was the appellant in the proceedings below.
2. The claimant is a citizen of Jamaica born on 20 June 1994. He arrived in the United Kingdom as a visitor on 11 August 2001 when he was 7 years old and he was eventually granted indefinite leave to remain on 5 March 2007 as the dependent of his maternal grandmother who had been granted leave to remain in the United Kingdom in September 2003. The claimant’s application for an extension of stay was refused on the 17 October 2003 and was allowed following an appeal to the Asylum and Immigration Tribunal decided in his favour on 8 January 2007.
3. On the 26 January 2012, following his pleas of guilty, the claimant was sentenced by HHJ Hillen at the Blackfriars Crown Court to a detention and training order of two years duration for seven offences consisting of four occasions between 2 April 2011 and 2 June 2011 when he was involved as a runner in supplying heroin and crack cocaine. The term of his detention order was subsequently reduced to 18 months. He was aged 16 when he committed these offences and 17½ when he was sentenced by the judge.
4. This was not his first appearance before a criminal court. He had been sentenced on two occasions in 2008 for offences of possession of a bladed instrument and theft; one occasion in 2009 for possession of a bladed instrument; and three occasions in 2010 for possession of an offensive weapon, theft, robbery, and attempted robbery and failing to comply with the requirements of a detention and training order. He made one appearance in 2011 for failing to comply with the requirements of a youth rehabilitation order. Only one of these previous appearances had resulted in a custodial sentence and that was a six month detention and training order in 2010.
5. As a result of these convictions, on the 18 August 2012 the Secretary of State decided to make a deportation order on conducive grounds. It was a significant factor in the Secretary of State’s decision that the claimant was a persistent offender whose offending was strongly influenced by his membership of a criminal gang operating in North London. There was both before the judge at Blackfriars Crown Court and the panel of the First-tier Tribunal, intelligence information supplementing the criminal record indicating his conduct as a gang member. The Secretary of State’s case was that the claimant’s offending was persistent and becoming more serious; that his membership of a gang both posed a danger to the community and made it more likely that he would re- offend.
6. The decision to deport was made after 9 July 2012 when amendments to the Immigration Rules had come into force. The Secretary of State contended that those amendments properly applied the criteria of Article 8 to the different scenarios set out in those Rules and that it was only in exceptional circumstances that a person who could not comply with the criteria set by the Immigration Rules could succeed under Article 8. The decision letter contended that:
i. The claimant was liable to deportation under paragraph 398 (c) of the Immigration Rules because he was a persistent offender;
ii. The claimant fell outside the protection of paragraph 399A because although he had lived in the United Kingdom for 10 ½ of his 17 ½ years before his custodial sentence he could not meet the requirement to have “no ties (including social, cultural or family) with the country to which he would have to go if required to leave the United Kingdom.”
iii. The reason why it was not accepted that he the claimant had no ties with Jamaica, was because he and his family came from there and would be familiar with the culture and his estranged father lived there with whom he could re-establish a relationship, despite very limited previous contact.
7. The claimant appealed to the First-tier Tribunal and contended that deportation would be a disproportionate interference with the family and private life he enjoyed in the United Kingdom; that he was only a foot soldier in the gang; had done well during his sentence and despite some adjudications for fighting had gold status and with the help of prison staff had taken training courses to prepare himself for lawful employment; he intended to avoid gang life and criminality on release.
8. After hearing evidence from the claimant, his grandmother and girlfriend the panel allowed his appeal finding that deportation was not proportionate. In its conclusions the panel directed itself in accordance with the UT decision of Masih (deportation - public interest - basic principles) Pakistan  UKUT 46 (IAC) setting out and applying the guidance of the Strasbourg Court in Maslov v Austria  ECHR 546. The panel had careful regard to the judge’s sentencing remarks, the claimant’s age at the time of offending, the evidence of his progress in prison including his gold status and educational certificates. It noted that he had no readily available support in Jamaica. If he returned to gang membership or committed further offences he would be deported, but on the current information deportation would be disproportionate.
The Secretary of State’s appeal
9. In her grounds of appeal to the Upper Tribunal the appellant asserts that the panel failed to consider “the Article 8 provisions of the Immigration Rules” and in so doing failed to have regard to the presumption to deport and failed to apply the correct test by considering what exceptional circumstances applied to prevent deportation.
10. The grounds further assert that although the panel said that it had taken into account the serious nature of the claimant’s gang involvement and his previous convictions their conclusion shows that they cannot have done so. The findings do not reflect the evidence.
11. At the hearing before us Mr Hibbs, representing the appellant, made written and oral submissions. He contended that the panel did not give due attention to the Immigration Rules or grapple with the claimant’s gang membership or risk of re-offending. This was glossed over with the panel giving the claimant the benefit of the doubt rather than making an assessment of the evidence that was before them. He further suggested that the panel failed to take into account the claimant’s period of irregular stay and instead treated him as a settled migrant. The claimant’s gang membership does not, he submitted, form an integral part of the panel’s deliberation.
12. For the claimant Mr McCarthy put forward a written skeleton argument. He said that the intelligence evidence of gang membership was before the panel and referred to in the Trial Judge’s sentencing remarks. This gang membership must be taken in context. The claimant is described as ‘a foot soldier’, he held a low position in the gang and he was the youngest of those convicted.
13. We were referred to paragraphs 53, 54 and 56 of the determination. The intelligence report is referred to specifically at paragraph 26 – 28 as is the sentencing court’s view of the seriousness of the offence. Mr McCarthy agreed that the claimant was involved with a serious criminal gang and had a significant criminal history and pointed out that the panel recognised this at paragraph 51 of the determination. In considering the public interest the panel make frequent reference to the claimant’s gang activities.
14. Mr McCarthy referred us to Maslov v Austria  ECHR 546 and Masih (deportation – public interest – basic principles) Pakistan  UKUT 46 (IAC) and added that the claimant had made progress in prison, had now been released on licence and stood the best chance of rehabilitation in this country.
15. We reserved our decision and in doing so said that if we found that the panel had erred and the decision needed to be re-made everything currently known would need to be considered by the Upper Tribunal.
16. The appellant’s grounds are essentially three complaints. Firstly, that the panel failed to consider the family and private life provisions of the Immigration Rules. Secondly, that the panel failed to give due weight to the claimant’s gang membership and therefore that the panel’s reasoning was inadequate. Thirdly, Mr Hibbs suggested that the claimant’s irregular stay and lack of settled status should be taken into account.
17. So far as the first issue is concerned it is clear from the determination that the panel were alive to the relevant provisions of the Immigration Rules. These are referred to at paragraphs 29, 31, 32 and 33 of the determination. The Immigration Rules provisions come with the panel’s summary of the Secretary of State’s case and the ECHR provisions with their summary of the claimant’s case.
18. However in their findings at paragraphs 51 to 56 the panel do not refer specifically to either the Immigration Rules or the ECHR; but the terms under which the appeal is allowed “it would not be proportionate to deport” make it clear that it is the ECHR provisions that formed the basis of the panel’s decision. They were plainly aware of the relevant learning of the UK courts on Article 8 claims.
19. Mr Hibbs’ written submissions rely on the recent decision of Sales J in Nagre v SSHD  EWHC 720 (Admin) as authority for the proposition that the Immigration Rules together with consideration of exceptional circumstances outside the Rules under the SSHD’s guidance provides “full coverage of an individual’s rights under Article 8”.
20. In Nagre the Administrative Court (see paragraph ) approved the guidance of the Upper Tribunal in Izuazu (Article 8 – new rules)  UKUT 45 (IAC), in turn endorsing the two stage approach recommended by the Upper Tribunal in MF (Article 8 – new rules) Nigeria  UKUT 393 (IAC). Sales J added the proviso that it would not always be necessary to move on to the second stage and consider Article 8 proportionality apart from the provisions of the Immigration Rules where the rules and the learning on Article 8 were in harmony the answer given by the rules might render further inquiry unnecessary, unless there were exceptional circumstances. In that case the difference between the rules and the Strasbourg principles was marginal (see paragraph ). The facts and issues in Nagre were far removed from the issues that arise in this appeal and further detailed consideration of that decision is not necessary or appropriate.
21. It follows from the cases referred to above, and the decision of the UT in Ogundimu (Article 8 – new rules) Nigeria  UKUT 60 (IAC) that a panel considering a decision made after 9 July 2012 should consider how the Immigration Rules would apply to the case, and make any relevant findings in that context, before considering the wider application of Article 8 and the jurisprudence of the Upper Tribunal, and the higher courts, either to decide whether there are exceptional factors not contemplated by the rules or that the decision is an unlawful one and disproportionate to the legitimate aim. Pending any further guidance from the Court of Appeal, judges of both chambers should apply the principles set out in Izuazu.
22. Applying this approach, we accept that although the panel were well aware of the provisions of the Rules it did not in terms give its decision reflecting the issues under the Rules namely whether the claimant had ‘no ties’ with Jamaica and if he had some ties what the overall Article 8 consequence would be.
23. However, assuming that this failure amounted to an error of law in the making of the determination, it is not an error that would require the re-making of the decision unless we considered that it was a material failure and one that could effect the overall decision in the case. Any error by the panel could not have that result if:-
iv. On their primary findings the claimant had no ties with Jamaica,
v. The provisions of the Immigration Rules failed to reflect the criteria of the case law as to Article 8,
vi. In any event there were relevant factors not reflected in the Rules that amounted to exceptional circumstances.
24. We are satisfied that any error would not be material on this point for all three reasons.
25. As to the first, the panel found (at paragraph 54) that the claimant has no readily available support in Jamaica. That finding has to be seen in the context of the conclusions of the earlier panel in January 2007 who was satisfied that there were ‘serious and compelling family or other considerations’ making the claimant’s exclusion undesirable. In reaching this conclusion the panel found that his mother lived in the United States and had little involvement in his life, that his father has had little to do with him since his birth and that his maternal grandmother with whom he still lives in this country had taken over parental responsibility.
26. The issue of ties was considered by this Tribunal in Ogundimu where it said:
“123. The natural and ordinary meaning of the word ‘ties’ imports, we think, a concept involving something more than merely remote and abstract links to the country of proposed deportation or removal. It involves there being a continued connection to life in that country; something that ties a claimant to his or her country of origin. If this were not the case then it would appear that a person’s nationality of the country of proposed deportation could of itself lead to a failure to meet the requirements of the rule. This would render the application of the rule, given the context within which it operates, entirely meaningless. “
27. The only difference between the claimant’s ties to Jamaica at the time of the decisions in 2006 and 2012 is the passage of time and a consequent diminution of any residual ties that the claimant may have had to Jamaica. There is nothing in the decision now under appeal, or the evidence that was presented to the First-tier Tribunal that would have been likely to lead the panel to the conclusion that this 18 year old man who had been in the United Kingdom since the age of 7 had any ties in Jamaica. Ignoring his nationality and residence in Jamaica as a child, the decision letter only suggests that he could re-establish ties with his estranged father if removed there, but that is not the same as having the ties at present, even if the possibility of resuming the ties was realistic a fact that neither panel who heard the evidence in 2007 or 2012 seemed to think.
28. As to the second, we observe that paragraph 398 of the Immigration Rules makes no reference to persons who commit crimes as juveniles. Although paragraph 398 (a) and (b) refer to ’imprisonment’ of 12 months or four years and imprisonment is a sentence only available for offenders who are over 21 at the date of conviction (see s.89 Powers of Criminal Courts (Sentencing) Act 2000), s.38 (1)(c) and 38 (2)(b) treats a term of detention of a young offender as a period of imprisonment. However, s. 33 (3) exempts from automatic deportation a person who was under the age of 18 at the date of conviction. This was doubtless the reason the Secretary of State based the decision on paragraph 398 (c): ‘persistent offender who shows a particular disregard for the law’ but no reference is made to the age of the offender at the time of the offence or the conduct.
29. By contrast the decision of the Grand Chamber in Maslov is clear:
70. ‘The Court would stress that while the criteria which emerge from its case-law and are spelled out in the Boultif and Üner judgments are meant to facilitate the application of Article 8 in expulsion cases by domestic courts, the weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case. Moreover, it has to be borne in mind that where, as in the present case, the interference with the applicant's rights under Article 8 pursues, as a legitimate aim, the “prevention of disorder or crime” (see paragraph 67 above), the above criteria ultimately are designed to help evaluate the extent to which the applicant can be expected to cause disorder or to engage in criminal activities.
71. 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.
72. The Court would also clarify that the age of the person concerned can play a role when applying some of the above criteria. For instance, when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult (see, for instance, Moustaquim v. Belgium, judgment of 18 February 1991, Series A no. 193, p. 19, § 44, and Radovanovic v. Austria, no. 42703/98, § 35, 22 April 2004).’
30. The importance of this for deportation appeals was re-affirmed by the decision of the Court of Appeal in JO (Ugandaat paragraph 21:
“Where the person to be deported is a young adult who has not yet founded a family life of his own, the subset of criteria identified in para 71 of the Maslov judgment will be the relevant ones. Further, paras 72-75 of that judgment underline the importance of age in the analysis, including the age at which the offending occurred and the age at which the person came to the host country. This is pulled together in para 75: 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; and this is all the more so where the person concerned committed the relevant offences as a juvenile.”
31. This learning was summarised by the Upper Tribunal in the decision in Masih (above) and it would have been an error of law for the FtT not to have considered such issues and applied the principles set out, whatever the Immigration Rules provide. As the Upper Tribunal has explained in Iguazu (above) and Ogundimu (above), where the Immigration Rules do not reflect the law it is the law as laid down in primary legislation that must be followed. There are two respects relevant to the present appeal where the Rules do not reflect the law: the failure to take into account the age of the offender at the date of the offence and the failure to direct the attention of decision makers to the solidity of the ties as opposed to their mere existence. As a consequence the panel was entitled to attach weight to the claimant’s youth at the time of the offending, and even if the presence of his estranged father was a tie at all (contrary to our observations above) it was manifestly not a solid one.
32. As regards the third point, with the rules making no provision for age this must in our view be a paradigm for the consideration of exceptionality under paragraph 397 of the Immigration Rules. Nagre holds that the consideration of exceptionality involves an examination of Article 8 ECHR and its established principles. The panel undertook this exercise and was entitled to reach the conclusions on this issue that it did.
33. So far as the consideration of the claimant’s gang membership is concerned, it is very clear from the determination that the panel not only took full account of this factor in reaching their decision but also that they found this to be a matter of considerable concern. In paragraph 54 the panel mention the claimant’s membership of the QC gang, referring to the earlier part of the determination where the claimant’s involvement is recited in detail.
34. In Masih the UT directed FtT judges to assess the seriousness of the conduct relied on in the deportation decision by reference to the trial judge’s sentencing remarks. The panel applied this guidance. The trial judge said this (Home Office Bundle G3):
‘Such gangs are not to be confused with groups of criminals who commit serious organised crime. These gangs such as the QC gang, as opposed to the so-called professional criminal gangs, consist of persons who individually are sad and pathetic and only find meaning in their lives in group behaviour, often of an antisocial kind. Notwithstanding the fact that gangs such as the QC consist of the miserably inadequate, they are however, a cause for great concern to the public because of the impact they have on the ordinary community life in the inner city areas of London.’
A little later he added:
‘There is an aspect of gang culture which gives rise to a mitigating feature, namely that the younger members or associates of the gang must be regarded as being vulnerable and potentially victims themselves. Similarly, those who are older and ought to know better can be seen as leaders if not in a formal sense in the gang’
Addressing the claimant, who was one of five defendants he was sentencing, he said, after describing him as a runner:
‘I bear in mind your youth and that you were 16 at the time of the commission of offences. But you have a terrible record for one so young and you are destined for a miserable life unless you get a grip on yourself. I have to bear in mind the principles guiding the sentencing of young offenders. In particular I have to bear in mind that you are a young man in need of discipline.’
We do not have a copy of the Court of Appeal’s remarks when it reduced the length of the detention by six months but in the circumstances we are confident that they did not take a more severe view of the claimant’s criminality and prospects.
35. The panel also refer to the claimant’s criminality and note that his recent good behaviour has not been faultless. The seriousness that the panel place on the claimant’s gang membership is reflected in their agreement that if the claimant returns to gang membership and commits further offences there is no question that he would be deported.
36. We would add to what the Tribunal said in Masih, that where the course of conduct relied on the deportation decision includes conduct that has not resulted in a criminal charge or conviction, the panel will need to take that conduct into account despite the absence of sentencing remarks (see Bah (EO (Turkey) – liability to deport)  UKUT 196 (IAC)).
37. Here the sentencing judge was aware of the intelligence material relating to gang membership but in so far as that material disclosed conduct that was not before the criminal court, he concluded he could not aggravate the sentence on that account (see Home Office Bundle G4). This is not a restraint that would be applicable to a panel in a deportation appeal. It may well be that taken as a whole continued association with gangs who commit violent conduct would amount to the weighty reasons justifying the expulsion of even a young offender who has spent much of his childhood in the United Kingdom.
38. However we are satisfied that this panel understood the evidence and its implications and the issues, properly directed themselves and reached a conclusion it was entitled to reach. This was a young offender in need of discipline who was vulnerable to the inducements of gang life but who had now received his first substantial term of detention and was well aware of the consequences if he reverted to his former way of life. There was no error of law on this aspect of the decision entitling us to re-make it. Giving weight to a factor one way or another is for the fact finding Tribunal and the assignment of weight will rarely give rise to an error of law.
39. Finally, Mr Hibbs proposed that the claimant’s immigration status should be a factor held against him in the proportionality balance. We reject that suggestion.
40. The claimant came to this country lawfully at the age of 7. He applied for an extension of stay in time and he successfully appealed against the decision to refuse to grant indefinite leave. Although he had no right to settlement when he first arrived there has been no defiance of immigration control or breach of the immigration laws. In any event given his age at the time, any period of irregular stay could and should not be held against his status as a settled migrant.
41. The existence of an error of law is a necessary condition to setting aside a decision but not a sufficient one (see Tribunals, Courts and Enforcement Act 2007 s.12 (2) (a)). Where any error is not material to the outcome, the Upper Tribunal will not normally set aside the decision below and re-make it.
42. The only arguable error of law was the failure to explain how paragraph 399A(b) applied to the facts of this case. We do not consider any such failure to be material or capable of having any effect on the conclusions for the reasons we have given in response to ground one above.
43. We do not re-make the decision and the appeal of the Secretary of State is dismissed. Before we depart from this appeal we re-affirm the warning given the claimant by the panel. He is now nearly 19. If he commits a significant offence or resumes association with criminal gangs he will be deported irrespective of his personal ties.
44. Both members of the panel have contributed to the making of this decision.
J F W Phillips
Deputy Judge of the Upper Tribunal Date: