England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
DA/01678/2013

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/08/2016

Lord Justice Sales:

1. This is an appeal by the Secretary of State in a case involving Mr Kamara, a national of Sierra Leone born on 29 September 1987, whom the Secretary of State wishes to deport to Sierra Leone as a foreign criminal.
2. Mr Kamara came to this country in 1993 as a young child, aged 6, with his sister, aged 8, to live with his adult half-sister who was in the UK with indefinite leave to remain. He was brought up here. On 30 August 1995 he and his sister were granted indefinite leave to remain as dependants of his half-sister. They lived with family members in the UK, and were for part of the time in foster care.
3. The Upper Tribunal found that he has no ties with Sierra Leone, having lost all contact with the country a long time ago. It rejected the Secretary of State's submission to the contrary, based on the evidence it heard. It found Mr Kamara to be a credible witness whose evidence about this should be accepted. It is common ground that Mr Kamara cannot speak any of the local languages in use in Sierra Leone.
4. The Upper Tribunal also found that Mr Kamara is fully integrated into society in the UK. He has, for the most part, been a diligent student here and is seeking to complete his studies and find employment. He had demonstrated remorse for his offending and his conduct while in prison had been exemplary. The Tribunal found that his deportation would involve an interference with his right to respect for his private life under Article 8 of the European Convention on Human Rights.
5. On 10 October 2011 Mr Kamara was sentenced to imprisonment for 3 years and 6 months for possession of class A drugs with intent to supply. This was a serious offence, which means that Mr Kamara qualifies as a "foreign criminal" for the purposes of the application of the UK Borders Act 2007 and section 117C of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014). The Secretary of State decided that he should be deported when released from prison.
6. Mr Kamara appealed to the First-tier Tribunal ("FTT"), maintaining that he was entitled to be granted leave to remain under the relevant provisions of the Immigration Rules. The FTT allowed his appeal, but its decision was set aside by the Upper Tribunal for error of law and the case was remitted for a fresh determination. The FTT again allowed his appeal, but again the Upper Tribunal set the decision aside for error of law. This time the Upper Tribunal decided to make a fresh decision itself.
7. Accordingly, the Upper Tribunal held a full hearing with evidence to decide itself whether Mr Kamara's appeal from the decision of the Secretary of State should be allowed. At the time of the hearing before the Upper Tribunal it was required to apply sections 117A-117D of the 2002 Act and the new Immigration Rules in respect of foreign criminals which came into effect in July 2014, in particular paragraph 399A.
8. The test in paragraph 399A corresponds with that in section 117C. Since Mr Kamara's sentence was for imprisonment of more than 12 months but less than 4 years, it is section 117C(3) which is applicable. Section 117C provides in relevant part as follows:

"117C Article 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. …"

9. The principal factual issue in dispute at the hearing before the Upper Tribunal was whether Mr Kamara had maintained links with his natural mother in Sierra Leone. Mr Kamara's evidence was that he had not. His father (who was of Lebanese nationality) had not married his natural mother, but had married another woman who became Mr Kamara's step-mother. Mr Kamara had never lived with his natural mother and was brought to the UK after his father died in 1992. His stepmother also relocated to the UK after this time. Mr Kamara explained evidence adduced by the Secretary of State which was said to show that he had continuing links with his natural mother in Sierra Leone as in fact referring to contact that he had continued to have with his stepmother while she was there. This account was corroborated by other evidence and the Upper Tribunal found that it was true. Mr Kamara's natural mother had disappeared in about 1994 and she could not be traced.
10. The Upper Tribunal therefore found, taking the evidence in the round, that Mr Kamara "has not had any contact with his natural mother in Sierra Leone and has no subsisting familial ties to that country" (para. [33]).
11. No complaint is made by the Secretary of State about the way in which the Upper Tribunal considered the various factors set out in section 117B and section 117C(1) and (2). In particular, the Upper Tribunal properly recognised the strong public interest in the deportation of those who commit serious crimes such as that committed by Mr Kamara. The critical issue which the Upper Tribunal had to determine under section 117C was whether Exception 1 applies in Mr Kamara's case, the test under paragraph 399A being the same. It was common ground before the Upper Tribunal that Mr Kamara had been lawfully resident in the UK for most of his life. After careful consideration of the facts, the Tribunal found that he is socially and culturally integrated in the UK, and the Secretary of State makes no complaint about its decision on this point.
12. For the purposes of this appeal, therefore, the important question was whether there would be very significant obstacles to Mr Kamara's integration into Sierra Leone, if deported there. The Upper Tribunal found that there would be. It reasoned as follows:

i) the burden was on Mr Kamara to demonstrate that there would be very significant obstacles to his integration there, and the use of the word "very" showed that the threshold was a high one ([66]);

ii) it had found that Mr Kamara had no family, familial links or friends in Sierra Leone and Mr Kandola, who represented the Secretary of State at the hearing, accepted that these findings would be evidence to show that there were very significant obstacles to his integration, and "he did not advance any further submissions as to the evidence or any other factors relevant to this requirement" ([67]: that is to say, the entirety of the Secretary of State's case on this requirement turned on her submissions on the factual dispute which the Tribunal had to resolve as to whether Mr Kamara did or did not have family ties in Sierra Leone);

iii) nonetheless, the Tribunal considered at paras. [68]-[70] whether, notwithstanding the lack of relatives in Sierra Leone, there might be other relevant factors such as 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; it reminded itself "that there are many migrants who seek a new life in countries other than their own". The Tribunal found that there were no such factors. Although English is an officially recognised language in Sierra Leone, it is primarily used only for business, government and media purposes, rather than normal day-to-day life. Mr Kamara did not speak any of the local languages, of which there were 23, being languages of the many tribes who live there. Moreover, 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 Mr Kamara would have no familiarity. The Tribunal found that there was no evidence that he would be able to integrate in Sierra Leone within that kind of cultural context.

iv) in addition, the Tribunal attached some weight to the fact that the evidence showed that there were continuing hardships experienced by the population in Sierra Leone in relation to the country's fight against Ebola, which would make it still more difficult for an outsider like Mr Kamara, "with no social, cultural or familial links with the country", to integrate there.

13. Accordingly, the Upper Tribunal found that, although a foreign criminal, Mr Kamara fell within Exception 1 in section 117C(4) and within paragraph 399A of the Immigration Rules. Weighing this along with the other matters identified in section 117B and section 117C(1) and (2), the Tribunal held that his deportation to Sierra Leone would be disproportionate and would be in violation of his rights under Article 8. It therefore allowed his appeal against deportation. The Secretary of State now appeals to this court.

Discussion

14. In my view, 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) and paragraph 399A, 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.
15. Mr Waite, for the Secretary of State, makes two criticisms of the Upper Tribunal's decision. Although the Secretary of State has no quarrel with the way in which the Upper Tribunal directed itself on the law, he says that the conclusion it reached regarding Exception 1 and paragraph 399A involved legal error, because the Tribunal failed to have regard to the facts that Mr Kamara is a young man in good health and capable of work. Further and in the alternative, Mr Waite submits that the Tribunal's decision should be quashed on the grounds that it has not given proper reasons to explain its conclusion that Mr Kamara should not be deported, because it did not explain how it reached that conclusion despite the fact that Mr Kamara is a young man in good health and capable of work.
16. Mr Waite says that the case raises important points of principle. In truth, however, it does not. In my view, the Tribunal's decision is a careful and well-reasoned judgment, based on proper self-directions of law and leading to a conclusion which was clearly within the lawful parameters of legitimate evaluative judgment for the Tribunal on the facts of the particular case. It raises no special issue of principle.
17. Mr Waite's two criticisms are closely related. I take the criticism regarding the Tribunal's reasoning first, because it is really the foundation for the submission that the Tribunal failed to have proper regard to relevant matters.
18. There is no special rule regarding the reasons to be given by a tribunal deciding an immigration appeal. The conventional approach applies. The Upper Tribunal'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.
19. I do not accept Mr Waite's submission that the Upper Tribunal in this case erred by failing to refer explicitly in its reasons to the facts that Mr Kamara is a young man in good health and capable of working. Two points may be made.
20. First, these were all matters of which the Tribunal was plainly aware. It knew Mr Kamara's age and had seen him give evidence; and in any event no-one had suggested that he was anything other than what he appeared to be on the papers, i.e. a young man in good health and capable of working. Since there was no issue about any of this and there could be no real doubt about the Tribunal's awareness of the position, the Tribunal did not have to state these things in terms in its reasons to show that it had taken them into account. In the context in which it gave its decision, it is clear that it has done so.
21. Secondly, the representative for the Secretary of State at the hearing before the Tribunal did not base any distinct submission in relation to Exception 1 and paragraph 399A on these particular facts about Mr Kamara. Had they been made the basis for a major submission of the Secretary of State or raised as a principal issue in dispute between the parties it might have been remiss of the Tribunal not to mention them and explain how it took these matters into account when arriving at its conclusion. But this was not a feature of the argument before the Tribunal. It cannot be criticised for proceeding on the implicit basis that everyone recognised that Mr Kamara was a young man in good health and capable of working.
22. Turning, then, to Mr Waite's submission on the substantive merits of the Tribunal's decision, there is no proper foundation for it. The Tribunal was aware that Mr Kamara was a young man in good health and capable of working and obviously took those points into account as the background for its consideration of the case at paras. [66]-[71]. However, it regarded them as insufficient to cancel out the reasons it gave for finding that, as it set out there, there would be very significant obstacles to his integration into Sierra Leone. On a fair reading of the Tribunal's decision, it is not possible to infer that it failed to have regard to these aspects of the case. On the footing that it did have regard to them, Mr Waite did not suggest that the Tribunal's decision that the deportation of Mr Kamara to Sierra Leone would be in breach of his rights under Article 8 could be regarded as irrational or perverse.
23. For these reasons, I would dismiss this appeal.

Lord Justice Moore-Bick:

24. I agree.