ON APPEAL FROM THE UPPER TRIBUNAL
Strand, London. WC2A 2LL
B e f o r e :
LORD JUSTICE IRWIN
LORD JUSTICE MOYLAN
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Julie Anderson (instructed by Government Legal Department) for the Respondent
Hearing dates : 21st June 2017
Crown Copyright ©
Lord Justice Moylan :
"AS was unable to exercise future or consequential thinking skills and appears to have given no prior thought to the impact his offending may have had on the victims ... The index offence is assessed as part of an emerging pattern of offending relating to acquisitive crime, threat of violence and weapons. It also represents an increase in the seriousness of AS's offending".
The likelihood of his re-offending was assessed as medium.
"All the robberies were committed at night between 28th December and 8th January 2013 around Barnes Pond and Common. You have admitted deliberately choosing this area to target young posh people as you put it. Your victims, aged 15 to 18 years, were all very frightened because all these offences were at knife point.
The judge noted the following aggravating features: that all the offences were preplanned; that they were committed at night; that vulnerable young victims were targeted; and that AS was in possession of a knife.
"398. Where a person claims that their deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention, and
(b) the deportation of the person from the United Kingdom is conducive to the public good 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;
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.
399A. This paragraph applies where paragraph 398(b) or (c) applies if -
(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the United Kingdom immediately preceding the date of the immigration decision (discounting any periods of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK".
"In the case of a foreign criminal ("C") who has not been sentenced to period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies."
The provisions of these sections, and of Exception 1 (s.117C(4)), are reflected in the changes made to the IR as summarised below.
"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;
(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."
life", being the words used in the old version of that paragraph.
"(AS) has lived in the UK for most of his life and is socially and culturally integrated in the UK. I find that at his young age, with no social or family ties and remote cultural ties with Iran, there would be very significant obstacles to his integration in Iran".
There was a clear inconsistency between the observation that AS had lived in the UK for most of his life and the judge's previous conclusion as set out in paragraph 19 above. However, the main observation I would make about the structure and content of the FtT's decision is that, apart from words at the end of the penultimate paragraph, the judgment focused on ties.
Upper Tribunal's Decisions
"The only clue to any recognition of those issues that needed to be assessed is in the last phrase of the penultimate paragraph of the determination whereby he stated that in his view there would be very significant obstacles to (AS's) integration in Iran".
"It is plain from the determination that (the FtT judge) was concerned with the issue of whether (AS) had ties with Iran in terms of paragraph 399A, being the former manifestation of the Immigration Rules at 399A(b). It was not sufficient in my judgment for (the judge) to state that there would be very significant obstacles to his integration in Iran, at the end of an assessment of matters which were evidently directed to the question of "no ties"."
Factors, potentially relevant to the issue of obstacles to integration, had not been referred to by the FtT because of its focus on ties. Further, the conclusion that there would be very significant obstacles to AS's integration into Iran "does not follow from any reasoned assessment of that critical issue". The failure to undertake that important assessment was found to go "hand in hand" with the judge's failure to consider and apply sections 117A-D and the amendments to the IR.
"In my view, the concept of a foreign criminal's "integration" into the country in which it is proposed that he be deported, as set out in section 117C(4) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or sustain his 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 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 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 and family life."
Mr Buley picked up the word "insider" and submitted that, whether one is an insider, depended on the nature and extent of one's ties to the other country.
"35. While the European court has provided guidance as to factors which should be taken into account, it has acknowledged that the weight to be attached to the competing considerations, in striking a fair balance, falls within the margin of appreciation of the national authorities, subject to supervision at the European level. The Convention on Human Rights can thus accommodate, within limits, the judgments made by national legislatures and governments in this area".
"if it is clear that on the materials before the tribunal any rational tribunal must have come to the same conclusion or if it is clear that, despite its failure to refer to the relevant legal instruments, the tribunal has in fact applied the test which it was supposed to apply"
Substance is more important than form although there will clearly be cases where the form is, by itself, sufficient to demonstrate that the tribunal did not apply the correct test.
"His father may have ties but they are not the ties of the appellant or any ties that could result in support to the appellant in the event of his return there."
This analysis in Ogundimu, including specifically the latter part of this passage, was expressly approved in YM (Uganda). In any event, the broad evaluation required when the court is considering obstacles to integration can clearly include the extent to which a parent's ties might assist with integration.
Lord Justice Irwin:
Lady Justice Rafferty