England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL

		Royal Courts of Justice Strand, London. WC2A 2LL
		23/08/2017

Lord Justice Moylan :

1. This is an appeal by an Iranian national ("AS") from the decision of the Upper Tribunal ("the UT") allowing the Secretary of State's appeal from the decision of the First-tier Tribunal ("the FtT") that his deportation would be unlawful.
2. The Secretary of State made a decision on 15^th November 2013 to deport AS following his conviction for a number of offences. On 7^th October 2014, the FtT allowed AS's appeal from that decision. The Secretary of State appealed that decision to the UT. Following a hearing on 23^rd March 2015, the UT set aside the FtT's decision on the basis that it was vitiated by a material error of law, namely by failing to apply the new formulation of the Immigration Rules ("the IR") and the provisions of sections 117A-D of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") which had come into effect on 28^th July 2014.
3. The UT re-made the decision and, on 10^th December 2015, dismissed AS's appeal from the Secretary of State's decision.
4. AS appeals to this court from that determination. Initially, three grounds of appeal were advanced but, by the date of the hearing, they had reduced to two. First, that the FtT had not made any error of law in its assessment of whether there were "very significant obstacles" to AS's integration into Iran. Secondly, that the UT's own approach to this determination was seriously flawed in a number of respects including by treating adaptation as the same as integration; by setting the bar too high; and by discounting the need for "very serious reasons" to justify the deportation of AS.

Background

5. AS was born in Iran on 4^th October 1995. He came to the UK with his mother on 24^th February 2005 when he was aged 9. They had been given leave to enter, and indefinite leave to remain in, the UK under the family reunion policy. His father, who had arrived in the UK in 2003, had been granted indefinite leave to remain as a refugee in 2004. AS's mother became a UK national in June 2010.
6. On 8^th December 2009 AS was convicted of three counts of attempted robbery and sentenced to a 12 month referral order. On 8^th November 2011 he was convicted of possession of an offensive weapon and sentenced to a six month referral order.
7. On 14^th March 2013, when AS was aged 17, he was convicted of six counts of robbery, three counts of attempted robbery and one count of handling stolen property. On 11^th April 2013 he was sentenced to three years in a Young Offender Institution.
8. The Youth Offending Team's pre-sentence report stated that the commission of the "index offence" displayed a "propensity to commit offences for personal gain". The report also said:

"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.

9. The report also referred to AS being "academically capable". He had completed his GCSEs and was attending college studying for a BTec in business studies.
10. In his sentencing remarks the judge said:

"All the robberies were committed at night between 28^th December and 8^th 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.

11. On 8^th August 2013 the Secretary of State wrote to AS seeking reasons why he should not be deported. A number of representations were received. As referred to above, on 15^th November 2013 the Secretary of State decided that AS should be deported. The decision letter referred to Art. 8 of the ECHR, paragraphs 396, 397 and 398 of the Immigration Rules and s.55 of the Borders, Citizenship and Immigration Act 2009. The Secretary of State decided that the public interest in AS's deportation was not outweighed by other factors, including the consequent interference with AS's private and family life in the UK, and that his deportation would not breach his rights under Art. 8.

Legislative Framework

12. This case has focused on the changes made to the IR with effect from 28^th July 2014. These changes were in the context of the changes also made to the 2002 Act, by section 19 of the Immigration Act 2014 which added sections 117A-D to the former.
13. The rules which applied prior to 28^th July 2014 provided as follows:

"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".

14. Sections 117A-D of the 2002 Act set out a revised statutory framework. Section 117C is headed: "Article 8: additional "considerations in cases involving foreign criminals". Subsection 1 provides: "The deportation of foreign criminals is in the public interest". Subsection 3 provides:

"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.

15. Paragraph 398 was amended to provide, in place of the concluding words set out above, that "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".
16. Paragraph 399A was amended to read as follows:

"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."

FtT Decision

17. AS's appeal to the FtT was determined on 7^th October 2014. After referring to the evidence, the judge sets out the "new immigration rules". He then sets out the provisions of rules 398, 399 and 399A in the form in which they applied prior to 28^th July 2014.
18. The judge next quoted from MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544 and Ogundimu (Article 8 - new rules) [2013] UKUT 60 (IAC). Both of these decisions dealt, obviously, with the IR as they applied prior to 28^th July 2014. The latter decision was specifically quoted by the judge because of its consideration of the meaning of the word "ties". The former because it had considered the approach to the "new immigration rules".
19. The judge then set out his conclusion that AS did not meet the requirements of paragraph 399A of the IR because he had not lived in the UK for "at least half of his

life", being the words used in the old version of that paragraph.

20. After quoting Art. 8, the judge refers to Üner v The Netherlands (2006) 45 EHRR 14 and states that where a person has spent the major part of his childhood and youth in the UK "very serious reasons are required to justify expulsion ... all the more so where the person concerned committed the relevant offences as a juvenile".
21. The judge identified that there were compelling public interest considerations supporting deportation but decided that these factors were "not sufficiently serious to outweigh the consequences of interference with (AS's) private and family life". Accordingly, he allowed AS's appeal. In reaching this decision, the judge set out his conclusion that AS did not have any family ties with Iran and that "his social and cultural ties with Iran are tenuous". At the end of the penultimate paragraph, he said:

"(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

22. The Secretary of State appealed to the UT on the basis that the FtT judge had failed to have regard to sections 117 A-D of the 2002 Act and the relevant provisions of the IR; and that the judge's Art. 8 assessment was flawed.
23. At the first hearing, on 23^rd March 2015, the Secretary of State's appeal was allowed and FtT's decision was set aside. The decision was then re-made at a further hearing before the UT. In its decision of 10^th December 2015, AS's appeal from the Secretary of State's decision was dismissed.
24. At the hearing on 23^rd March 2015, the advocate then acting for AS conceded that the FtT had made an error of law in failing to refer to sections 117 A-D and accepted that "no ties" and "very significant obstacles to ... integration" were not the same. It was submitted that, although they were not the same, the error of law was not material to the outcome because the decision reached on the facts by the FtT would also have been reached on a proper application of the new provisions.
25. The UT noted that, given the relevant provisions of the 2002 Act had been canvassed during the hearing before the FtT, it was surprising that the correct statutory framework within which the judge's decision had to be made had not been set out. The UT judgment states that:

"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".

26. The UT rejected the submission that the error of law was not material.

"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.

27. The UT proceeded to re-make the decision. Its judgment was given on 10^th December 2015 and, as referred to above, AS's appeal from the Secretary of State's decision was dismissed.
28. The UT set out the relevant provisions of the IR and sections 117A-C of the 2002 Act. AS met the requirement in rule 399A(a) because, by the date of the hearing, he had been lawfully resident in the UK for most of his life. The UT also found that he met the requirement in sub-paragraph (b) because he was socially and culturally integrated in the UK. The substantive issue addressed by the UT was whether there would be "very significant obstacles" to AS's integration into Iran.
29. The UT accepted that there would be obstacles to AS's integration into Iran. He had not been there since he was 9. He had become used to life in the UK and the relative freedoms a young person has as compared with Iran. He did not read or write Farsi. There was no evidence that he was aware of, or had any contact with, any relatives in Iran. It was likely that he would encounter difficulties in obtaining employment and/or further education or training because of the length of his absence from Iran and his inability to read or write Farsi.
30. The UT was, however, not satisfied that there were significant obstacles or, if there were, that they would amount to very significant obstacles. Integration was multidimensional. The UT referred to the following matters. AS spoke Farsi. He was an intelligent person who was academically capable. He had completed catering and cycle repair courses and was interested in becoming a mechanic. The UT, putting it in the negative, did not consider that AS would not be able to adapt to Iranian culture. The UT also considered the medical evidence from a clinical psychologist. This dealt with the impact of AS having witnessed and experienced domestic violence as a child and with the work which had been undertaken. The report concluded that "tackling past memories ... (has) allowed his symptoms of trauma to reduce, alongside improvements in mood, anxiety and general well-being".
31. The UT considered that AS would be "able to adapt to life in Iran" because of his ability to speak the language and his intelligence. His mother had continuing connections with Iran through a close friend whom she had last visited in 2012. Her friend could be expected to provide some assistance to AS in terms of assisting him in integrating into Iran. AS had demonstrated a robustness of character through his offending behaviour as he was "plainly and obviously very assertive".
32. The UT concluded by stating that, having considered all the evidence, it was not satisfied that there would be very significant obstacles to AS's integration into Iran.
33. The UT also considered whether there were very compelling circumstances which outweighed the public interest in AS's deportation. It referred to Maslov v Austria (2008) 47 EHRR 20 and R (Akpinar) v Upper Tribunal [2015] 1 WLR 466. The UT took into account AS's age when he committed the offences and other factors but determined that the public interest in deportation was not outweighed.

Appellant's Submissions

34. At the hearing Mr Buley advanced the two grounds of appeal referred to above although, in respect of the first ground, with a rather different focus as outlined below.
35. Mr Buley started by making an overarching submission that, because the IR are seeking to give effect to the criteria laid down by the European Court of Human Rights, they should be interpreted in a manner consistent with decisions of that court including Boultif v Switzerland (2001) 33 EHRR 50, Üner v The Netherlands and Maslov v Austria (2008) 47 EHRR 20. Accordingly, quoting from Maslov, there would need to be "very serious reasons" to justify deporting AS.
36. He also referred to some domestic authorities which have dealt with the Strasbourg decisions, JO (Uganda) v Secretary of State for the Home Department [2010] 1 WLR 1607, Akpinar and Ali v Secretary of State for the Home Department [2016] 1 WLR 4799 and some which dealt with the meaning of ties, Ogundimu and YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292.
37. As to the first ground of appeal, Mr Buley submitted that the FtT judge had made no error of law because, in substance, he had applied the new rules. In addition, he developed this ground by submitting that, in any event, the differences between the two versions of the IR are of "vanishingly small significance".
38. In support of these submissions, Mr Buley pointed to the fact that the judge had been referred to sections 117A-D of the 2002 Act and that he had referred, in his judgment, to the three elements set out in s.ll7C(4) (and rule 399A), namely that AS had been lawfully living in the UK for most of his life; that he was socially and culturally integrated into the UK; and that there would be very significant obstacles to his integration in Iran. Mr Buley responded to Ms Anderson's reliance on The Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636 by submitting that, absent the erroneous reference to the old rule, there was nothing wrong with the FtT's substantive approach.
39. Mr Buley also submitted that the word "most", in 399A(a), connotes a qualitative assessment or test not a quantitative assessment. This is not a tenable submission because, "lawfully resident in the UK for most of his life", is clearly a quantitative expression.
40. In respect of his developed case, Mr Buley submitted that the differences between the old and the new rules are either "non-existent" or "of vanishingly small significance". The new test is not more stringent but merely represented a slight change of emphasis because ties and integration are opposite sides of the same coin. Accordingly, the judge referred to all the matters relevant to his determination and reached the decision which he would, in any event, have reached under the new rules.
41. As to the second ground of appeal, Mr Buley submitted that the UT was wrong to determine that AS would not face very significant obstacles to integrating in Iran. The UT's reasoning was "seriously flawed". It had set the bar too high and focused on adaptation rather than integration. The factors identified by the UT should have led the UT to conclude that AS would face very significant obstacles. What he called "generic" factors, being factors which he submitted are not connected with or relevant to the issue of ties, cannot support a determination that very significant obstacles do not exist. Such factors are either not relevant or cannot, on their own, support such a determination.
42. Mr Buley additionally submitted that the UT wrongly discounted the need to find "very serious reasons" to justify deportation; failed properly to take the mental health evidence into account; and wrongly took into account the mother's ties with Iran which, based on Ogundimu and YM (Uganda), were not relevant.

Respondent's Submissions

43. Ms Anderson on behalf of the Respondent submitted (i) that the UT did not err when finding that the FtT had made a material error in law in failing to consider and apply sections 117A-D and the relevant version of IR and (ii) that the UT had itself reached a substantive decision which is not susceptible to challenge.
44. She relied on AJ (Angola) and the following specific points. The FtT had not cited sections 117A-D of the 2002 Act or the IR in the form applicable at the date of the FtT's decision. Rather, the FtT cited the IR in their "old" form which contained a materially different approach. The fact that, there had been an error of law and that the issues of "no ties" and "very significant obstacles" were not the same, had been conceded before the UT on behalf of AS. The Appellant's case before the UT, at the first hearing, was that there had been no error of law which was material to the outcome because, on the facts, the decision would be the same under both versions of the IR. As to this last point, Ms Anderson submitted that the UT was right to conclude that the FtT had failed to undertake the assessment required. There had been no reasoned analysis that explained the application of the relevant provisions to this case.
45. As to the second ground, Ms Anderson submitted that the UT's assessment of whether there would be very significant obstacles to AS's integration into Iran is unassailable and, accordingly, that the conclusion that AS's deportation would not effect a disproportionate interference with his Art. 8 rights is equally unassailable. Ms Anderson relied, in particular, on Akpinar.
46. At the hearing, neither counsel referred to Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 until invited to do so by the court. Additional written submissions were provided after the hearing.
47. Mr Buley submitted that Kamara supports his submission that the focus remains on ties rather than, what he calls, "generic" factors such as intelligence, employability and general robustness of character. He relies on what Sales LJ said in paragraph 14:

"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.

48. Ms Anderson explained that she had not referred to Kamara because it had not appeared to be relevant to the way in which AS's case was being advanced. It was only at the hearing that extensive submissions had been made to the effect that the differences in the two formulations of the rules were insignificant. In her submission, Kamara not only does not support AS's case but is contrary to it because, quoting Sales LJ, the concept of integration is a "broad one" which requires a "broad evaluative judgment". This is, she submits, precisely what the UT undertook. She also challenges Mr Buley's proposed differentiation between "generic" and other factors. In her submission, all factors are potentially relevant, including those such as employability. She points out that "good health" and being "capable of working" were referred to as being relevant in Kamara at paragraphs 20 and 22.

Determination

49. I deal first with Mr Buley's overarching submission.
50. In Ali, Lord Reed JSC said, when concluding his consideration of the Strasbourg jurisprudence, including Boultif and Maslov.

"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".

51. In Akpinar, the Court of Appeal directly considered the reference in Maslov to "very serious reasons" being required to justify expulsion. The submission, that Maslov laid "down a new rule of law, creating a consistent and objective hurdle to be surmounted by the state in all cases to which it applies; in other words, irrespective of the other factors involved, unless the state can show that there are "very serious reasons" for deporting ... (him), his article 8 rights will prevail", was rejected: paragraph 30. Sir Stanley Burnton considered that the Strasbourg court's "extensive citation of its previous case law (did) not suggest that it intended to depart from it". A conclusion further supported by the way in which the court had expressed its ultimate conclusion, in paragraphs 100 and 101, which reflected "a conventional balancing exercise": paragraph 31 of Akpinar.
52. Turning next to the first ground of appeal. In AJ (Angola) Sales LJ, at paragraph 49, referred to two categories of cases in which an identified error of law might be said to be immaterial:

"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.

53. It is clear to me that the UT did not err when they decided that the FtT had made a material error of law. Indeed, in my view, the UT was plainly right to decide that the FtT had not applied the correct approach. This is both in terms of form and substance.
54. The FtT did not refer to sections 117A-D and cited the previous version of the IR. The judge spent some time in his judgment specifically considering the issue of "ties" including by quoting from Ogundimu, expressly because it had considered the meaning of "the term "ties" in paragraph 399". It is right that the judge referred, briefly, at the end of his decision to the three factors set out in the new paragraph 399A. But as the UT judge noted, it is plain that the FtT judge was "concerned with the issue of whether the appellant had ties to Iran ... being the former manifestation" of the IR. It is also plain, as again noted by the UT judge, that this brief reference "does not follow from any reasoned assessment" of the issue of very significant obstacles. Absent any such assessment, it was almost inevitable that the UT would decide that there had been a material error of law.
55. In my view, it also cannot be successfully argued that, to quote from AJ (Angola), paragraph 49, "on the materials before the tribunal any rational tribunal must have come to the same conclusion". I do not accept Mr Buley's submission that the differences between the rules were of no significance. It is right to say that, when considering the former version, the court applied a "rounded assessment of all the relevant circumstances" (YM (Uganda) paragraph 51, approving Ogundimu) and that the latter version requires a "broad evaluative judgment" (Kamara paragraph 14). However, the assessment and the evaluation are undertaken in the context of the different formulations which provide the relevant framework. The UT was justified in deciding that the FtT had adopted too narrow an approach and did not take potentially relevant factors into account. To repeat what Sales LJ said in Kamara, paragraph 14, "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". In this case, the FtT had not directed itself in the correct terms.
56. As to the second ground of appeal, I do not consider that the UT's reasoning, when determining the appeal on its merits, was flawed. It is clear that the UT undertook a broad evaluation when determining whether there were very significant obstacles to AS's integration into Iran and reached a decision which it was entitled to reach. The UT assessed the obstacles to integration and the factors which would facilitate or assist with integration. In carrying out this exercise the UT expressly considered the medical evidence.
57. Mr Buley can point to the UT's reference to AS's ability to "adapt to life in Iran" but it is clear that it did not, as submitted by Mr Buley, substitute this for the issue of obstacles to integration. Further, whether someone is able to adapt to life in the other country easily fits within an assessment of the extent to which there are obstacles to their integration.
58. I do not consider that Mr Buley's categorisation of some factors as "generic" is helpful. Consideration of the issue of obstacles to integration requires consideration of all relevant factors some of which might be described as generic. What Mr Buley identified as "generic" factors, as referred to above, can clearly be relevant to the issue of whether there are very significant obstacles to integration. They can form part of the "broad evaluative judgment" as is specifically demonstrated by the reference in Kamara to "good health" and "capable of working".
59. I also reject Mr Buley's submission that, following Kamara, whether someone is "enough of an insider" is to be determined by reference to their ties or links to the other country. This is to turn what Sales LJ said in Kamara into just the sort of gloss which he expressly warned against. It is clear, to repeat, that generic factors can be of significance and can clearly support the conclusion that the person will not encounter very significant obstacles to integration.
60. The UT undertook an assessment which took into account a range of factors including AS's ability to speak Farsi, his ability to adapt to Iranian culture, his intelligence, his academic abilities and his character. Additionally, given Mr Buley's submissions in respect of the relevance of the mother's ties to Iran, it is probably helpful to quote more fully what was said about ties in Ogundimu, paragraph 124 (my emphasis):

"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.

61. In conclusion, Mr Buley has failed to demonstrate that the UT's assessment was materially flawed when determining that AS would not encounter very significant obstacles to integrating into Iran. The UT was entitled to conclude that the public interest in AS's deportation was not outweighed. Accordingly, I would dismiss AS's appeal.

Lord Justice Irwin:

62. I agree.

Lady Justice Rafferty

63. I also agree.