ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL No: IA/26424/2009]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
LORD JUSTICE PATTEN
| RS (UGANDA)
|- and -
SECRETARY OF STATE FOR THE
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Mr Neil Sheldon (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Etherton:
The AIT's decision
"…in order to establish family life, it is necessary to show that there is a real, committed or effective support or relationship between family members and that the normal emotional ties between the mother and an adult son would not, without more, be enough."
"21. We find that we have been told very little about any family life the Appellant enjoyed with his mother and siblings. At the hearing, Mrs Nakiyingi adopted the contents of her statement dated 29 September 2009 in which she said that the Appellant was born on 19 September 1990 in Kenya and that she has six children, the others being Kevin aged 21, Diana aged 25, Maryam aged 20, Alexis aged 9 and Francisca aged 7. She said that the Appellant was the only member of the family who had committed any criminal offences and that 'we' have visited him regularly when he was in custody. They believe that he has changed his attitudes and will turn over a new leaf when he completes his sentences. In order to hear more about any family life that existed between the Appellant and his mother and siblings, we asked Mr Boyle to explore the issue further with her. As a result, we were told that the Appellant would live at home with Mrs Nakiyingi and 'his two sisters'. These 'two sisters' were not named. We were told of a brother living in Newcastle, which we find means that he is not living in the same home as Mrs Nakiyingi, and of five cousins in Newcastle. We reached the same conclusion about them. We find on the evidence before us that there is nothing to even raise a suggestion that there is a dependency, as required to establish Article 8 family life, between the Appellant and his mother and between him and his siblings. We find that his relationship with them is no more than that which normally exists in families. We find therefore that there is no family life within the meaning of Article 8."
The decision of the UT
"8. … The very clear picture which is given of the appellant's life before he went to prison is that of an individual who, whilst he may some of the time have been physically present in his mother's home, had little respect for the advice and values of his family members and whose main influences and associations were with his contemporaries and, as the Tribunal noted, with criminals. The Tribunal was less optimistic than certain members of the appellant's family that the appellant's conduct would change once he had finished his sentence. It is clear from the Tribunal's findings that they took the view that this appellant was a young adult who is likely to have little to do with his mother and siblings save perhaps to rely upon them from time to time for financial support and shelter. Otherwise, his time is likely to be spent (as before) in the company of others outside the family."
"11… I have already noted that the appellant has a very poor criminal record for such a young man and that his main influences and associations are with other criminals. No other evidence regarding the appellant's private or family life was set before the First-tier Tribunal other than the sentencing remarks and pre-sentence reports and the evidence (such as that from Mr Vivasi) and character witnesses. None of those findings or the analysis of the First-tier Tribunal has been challenged. I find that, had the First-tier Tribunal proceeded to consider proportionality under Article 8 (in relation to both the appellant's private and his family life), then it will have concluded, in the light of its extensive findings made as part of its paragraph 364 assessment, that the appellant's removal would not be disproportionate. The Tribunal would have needed to set the appellant's private and family life rights under Article 8 against the need of the United Kingdom government to prevent crime and disorder (see Article 8(2) - see also DS (India) (2009) EWCA Civ 544) and to have had proper regard for the abhorrence with which the wider community would view the appellant's actions. An offence accompanied by the threat of violence such as "steaming" and the robbery of young and innocent victims by aggressive criminals is, as the Trial Judge noted, "particularly nasty". It is, in my opinion, the very sort of offence which the wider community views with utter repugnance."
The appeal to the Court of Appeal
"62. The applicant was a minor when the exclusion order was imposed. He had reached the age of majority, namely 18 years, when the exclusion order became final in November 2002 following the Constitutional Court's decision, but he was still living with his parents. In any case, the Court has accepted in a number of cases concerning young adults who had not yet founded a family of their own that their relationship with their parents and other close family members also constituted 'family life' (see Bouchelkia v. France, judgment of 29 January 1997, Reports 1997 I, p. 63, § 41; El Boujaïdi, cited above, § 33; and Ezzouhdi, cited above, § 26).
63. Furthermore, the Court observes that not all settled migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy 'family life' there within the meaning of Article 8. However, as Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual's social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of 'private life' within the meaning of Article 8. Regardless of the existence or otherwise of a 'family life', the expulsion of a settled migrant therefore constitutes an interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the "family life" rather than the 'private life' aspect (see Üner, cited above, § 59).
64. Accordingly, the measures complained of interfered with both the applicant's 'private life' and his 'family life'."
"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).
73. In turn, 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. This tendency is also reflected in various Council of Europe instruments, in particular in Committee of Ministers Recommendations Rec (2001)15 and Rec (2002)4 (see paragraphs 34-35 above).
74. Although Article 8 provides no absolute protection against expulsion for any category of aliens (see Üner, cited above, § 55), including those who were born in the host country or moved there in their early childhood, the Court has already found that regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Üner, § 58 in fine).
75. 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. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile."
"81. In the Court's view, the decisive feature of the present case is the young age at which the applicant committed the offences and, with one exception, their non-violent nature. This also clearly distinguishes the present case from Boultif and Üner (both cited above) in which violent offences, in the first case robbery and in the second case manslaughter and assault committed by an adult, were the basis for imposing exclusion orders. Looking at the applicant's conduct underlying the convictions, the Court notes that the majority of the offences concerned breaking into vending machines, cars, shops or restaurants and stealing cash and goods. The one violent offence consisted in pushing, kicking and bruising another juvenile. Without underestimating the seriousness of and the damage caused by such acts, the Court considers that they can still be regarded as acts of juvenile delinquency."
"84. In sum, the Court sees little room for justifying an expulsion of a settled migrant on account of mostly non-violent offences committed when a minor (see Moustaquim, cited above, § 44, concerning an applicant who had been convicted of offences committed as a juvenile, namely numerous counts of aggravated theft, one count each of handling stolen goods and destruction of a vehicle, two counts of assault and one count of threatening behaviour, and Jakupovic v. Austria, no. 36757/97, § 27, 6 February 2003, in which the exclusion order was based on two convictions for burglary committed when a minor and where, in addition, the applicant was still a minor when he was expelled).
85. Conversely, the Court has made it clear that very serious violent offences can justify expulsion even if they were committed by a minor (see Bouchelkia, cited above, p. 65, § 51, where the Court found no violation of Article 8 as regards a deportation order made on the basis of the applicant's conviction of aggravated rape committed at the age of 17; in the decisions Hizir Kilic v. Denmark, no. 20277/05, and Ferhat Kilic v. Denmark, no. 20730/05 both of 22 January 2007, the Court declared inadmissible the applicants' complaints about exclusion orders imposed following their convictions for attempted robbery, aggravated assault and manslaughter committed at the age of 16 and 17 respectively)."
"11….. The Tribunal would have needed to set the appellant's private and family life rights under Article 8 against the need of the United Kingdom government to prevent crime and disorder (see Article 8(2) – see also DS (India) (2009) EWCA Civ 544) and to have had proper regard for the abhorrence with which the wider community would view the appellant's actions. An offence accompanied by the threat of violence such as 'steaming' and the robbery of young and innocent victims by aggressive criminals is, as the Trial Judge noted, 'particularly nasty'. It is, in my opinion, the very sort of offence which the wider community views with utter repugnance.
12. I am aware that the ECHR in Maslov concluded (paragraph 84) that, "The Court sees little room for justifying an expulsion of a settled migrant on account of mostly non-violent offences committed when a minor". The ECHR went on to say (paragraph 85) that, "The Court had made it clear that very serious violent offences can justify expulsion even if they were committed by a minor". I consider that the appellant's "steaming" offence falls somewhere between those two extremes. I certainly do not find that there should be "little room for justifying" the deportation of this appellant given the offences which he has committed. To that extent, the facts that are to be distinguished from "mostly non-violent offences committed when a minor"…."
"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.
22. There is only limited value in drawing comparisons with the outcome in other cases. All such cases are highly fact sensitive. The particular facts determine not only the conclusion but also the features picked out in the reasoning given in support of that conclusion. For example, the court said in Maslov that the decisive feature was the young age at which the applicant committed the offences, but it does not follow that the same feature will be decisive in all other cases where it exists."
Lord Justice Patten:
Lord Justice Rix:
"Bearing in mind the four incidents of fighting during his DTO, we find that the Appellant's history shows a totally reckless disregard for the criminal law, and a propensity to abuse alcohol and drugs and to indulge in violence. There is no evidence that we can find that there has been any change in his attitude since he has been incarcerated."
Order: Appeal dismissed