ON APPEAL FROM UTIAC
Upper Tribunal Judge Canavan
Strand, London, WC2A 2LL
B e f o r e :
THE SENIOR PRESIDENT OF TRIBUNALS
LORD JUSTICE HENDERSON
| Secretary of State for the Home Department
|- and -
Miss Abigail Smith (instructed by Birnberg Peirce & Partners) for the Respondent
Hearing date: 2 November 2017
Crown Copyright ©
Sir Ernest Ryder, Senior President:
The statutory scheme:
"(i) The Secretary of State will not make:
(a) a grant of refugee status if in part of the country of origin a person would not have a well founded fear of being persecuted, and the person can reasonably be expected to stay in that part of the country; or
(b) a grant of humanitarian protection if in part of the country of return a person would not face a real risk of suffering serious harm, and the person can reasonably be expected to stay in that part of the country.
(ii) In examining whether a part of the country of origin or country of return meets the requirements in (i) the Secretary of State, when making a decision on whether to grant asylum or humanitarian protection, will have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the person.
(iii) (i) applies notwithstanding technical obstacles to return to the country of origin or country of return"
"(1) This Part applies where a court of tribunal is required to determine whether a decision made under the Immigration Acts –
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard –
(a) in all cases, to the considerations listed in section 117B, and
(b) in case concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2)."
"(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 …
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2."
"These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked."
"Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good and in the public interest 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; or
(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, 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."
"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; and
(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."
The decision appealed:
a. There is a real risk of SC being subjected to further serious ill-treatment if he were to be removed to Jamaica.
b. SC could not access the protection of the authorities.
c. It is not reasonable to expect SC to seek to reside in another area of Jamaica.
"In terms of the issue of internal relocation, I do not accept that it is reasonable to expect the appellant to seek to reside in another area of Jamaica in order to avoid his own and his mother's persecutors. The appellants' only links to Jamaica are in the area of Kingston where he used to live with his mother and maternal grandparents. Neither remain in Jamaica. Firstly, the appellant has not lived in Jamaica since 2001, visited the country subsequently or been in contact with any party there. Secondly, the appellant is deeply traumatised and in need of long-term psychological treatment (he is also described by Ms Kralj as institutionalised) and thirdly, most employment opportunities are likely to be available in the capital. Therefore, in order to avoid persecution, the appellant would be faced with moving to a rural location in order to avoid the general population, where he would be unsupported, homeless, destitute, unemployed and in need to psychological treatment."
a. SC's 'lawful residence' in the United Kingdom amounted to 12 years and 2 months which was most of his life. The start date was 10 December 2002 when SC's mother applied for asylum with SC as her dependent, and the end date was the date of the hearing.
b. SC attended school in the UK, his mother and sister live in the UK and he has no contact with anyone in Jamaica. SC was accordingly socially and culturally integrated into the UK.
c. There would be significant obstacles to SC's integration in Jamaica because he has no family to return to, he was the victim of torture and he is severely traumatised and in need of long term specialist therapy.
a. SC experienced ill-treatment in Jamaica.
b. SC has a particularly close relationship with his mother.
c. SC's mother would seek to return to Jamaica with him, and this would be a disproportionate interference with her moral and physical integrity.
d. SC has severed ties with the gang of which he was a member.
e. SC may have been failed by the institutions in this country when he was a child.
f. SC had made substantial progress, in a very short period of time, in turning his life around in view of his traumatic experiences in Jamaica and other life circumstances.
Grounds of appeal:
a. The UT erred in relation to the question of internal relocation for the purpose of article 3. The UT's approach to the guidance given in Januzi (supra) was an error of law. The FtT's findings were patently inadequate and the UT erred in upholding the FtT's decision.
b. The UT erred in law in relation to paragraph 399A of the Immigration Rules.
c. The UT erred in law in relation to its approach to article 8. The FtT had erred in law in embarking on a freestanding assessment of article 8 and, in any event, had applied the wrong test. The UT should have found an error of law in the FtT's decision.
Ground 1: Internal relocation
a. Whether the tribunal was wrong to come to the conclusion that it was unduly harsh and not reasonable to relocate to a part of Jamaica; and
b. Whether SC's criminality is relevant to the reasonableness of relocation.
"… I too would hold that the question whether it would be unduly harsh for a claimant to be expected to live in a place of relocation within the country of his nationality is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic human rights."
"The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so."
1. What is the location to which it is proposed the person could move?
2. Are there real risks of serious harm or persecution in this place?
3. If not, is it reasonable or not unduly harsh to expect the person to relocate to this place?
Grounds 2 and 3: article 8, the 2002 Act and the Immigration Rules
"It is common ground that the starting point for consideration of the proper constructions of Part 5A of the 2002 Act is that sections 117A-117D, taken together, are intended to provide for a structured approach to the application of Article 8 which produces in all cases a final result which is compatible with, and not in violation of Article 8."
"That a requirement of "very compelling circumstances" in order to outweigh the public interest in the deportation of foreign criminals sentenced to at least four years' imprisonment is compatible with Article 8 was accepted in MF (Nigeria) and in Hesham Ali itself. Of course, the provision to that effect in section 117C(6) must not be applied as if it contained some abstract statutory formula. The context is that of the balancing exercise under Article 8, and the "very compelling circumstances" required are circumstances sufficient to outweigh the strong public interest in the deportation of the foreign criminals concerned."
"[T]he new rules are a complete code and … the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence."
"Although there is no "exceptionality" requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient."
a. Whether the phrase 'most of his life' in paragraph 339A(a) of the Immigration Rules contemplates more than half of a person's life or something more significant;
b. Whether 'lawful residence' is a phrase susceptible of a precise meaning so that it determines the date from which 'most of his life' is to be considered and what is the date from which time has to run for the purposes of paragraph 339A(a) of the Rules? and
c. Whether the FtT failed to give weight to the public interest in deporting criminals in its evaluation of article 8.
"lawful residence" means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain; or
(ii) temporary admission within section 11 of the 1971 Act where leave to enter or remain is subsequently granted; or …"
"[T]he 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."
Lord Justice Henderson:
Lord Justice Davis: