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)
UPPER TRIBUNAL JUDGE KEKIC

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/04/2017

Lord Justice Underhill:

INTRODUCTION AND OUTLINE FACTS

1. This is an appeal against a decision of the Upper Tribunal dismissing the Appellant's appeal against a decision to deport him to Nigeria. The central feature of the case is that he has lived in the UK since birth and has never been to Nigeria and has no substantial links with that country. The outline facts are as follows.
2. The Appellant was born in this country on 21 June 1983, so he is now aged 33. His parents were Nigerian nationals who first came here as students. His father was granted indefinite leave to remain ("ILR") in October 1987 and became a British citizen in October 2004. His mother died when he was a teenager: it is not known what her immigration status was at that time, but it is fair to assume that she at least had ILR. He has two older brothers. The elder was born in Nigeria but became naturalised in 2000. The other was born in the UK, and as a result of the legislation in force at that time was a British citizen from birth. By the time the Appellant was born the legislation had changed – I give the details below – and he did not acquire British nationality automatically as a result of his birth here; and he has never acquired it since. He is a Nigerian national by virtue of his parents' original nationality. He does not have a partner or child. He has never left the UK, whether to visit Nigeria or anywhere else.
3. The Appellant has had a long record of criminal offending from his teenage years onwards. He has in all some twenty convictions for 42 offences. The most significant for our purposes are:

(a) On 5 July 2007 he was convicted of causing death by dangerous driving for which he was sentenced to four years' imprisonment. The circumstances appear to be that he suffered an epileptic fit while driving and lost control of his car and killed a cyclist. He knew that he was epileptic, and he was also driving while disqualified.

(b) On 31 January 2013 he was convicted of four counts of possession of heroin with intent to supply, one count of possession of diamorphine with intent to supply and one count of driving while disqualified. He was sentenced to a total of three and a half years' imprisonment.

We do not have a full record of his other offending but it includes:

• two convictions in 2000 for possession of a knife

• a conviction in 2001 for conspiracy to rob at knifepoint

• five convictions in 2005 and 2006 for driving while disqualified and while uninsured, for which he mostly received short periods of imprisonment

• a conviction in 2010 for possession of class A and class B drugs, for which he was fined

• a conviction in 2011 for using a vehicle while uninsured, taking a vehicle without consent and driving while disqualified, for which he was sentenced to four weeks' imprisonment.

4. Following the Appellant's conviction in 2011, the Home Office wrote to inform him that consideration had been given to making a deportation order in his case. He was told that a decision had been taken not to do so at that stage but that if he committed further offences he would be at risk of such an order being made.
5. Following the Appellant's conviction for drugs offences in 2013, on 13 February 2014 the Respondent made an order that he be deported to Nigeria.
6. The Appellant appealed against that order to the First-tier Tribunal on the basis that his deportation would be in breach of his rights under article 8 of the European Convention on Human Rights. By a determination promulgated on 29 August 2014 FTTJ Thanki allowed his appeal.
7. The Respondent appealed to the Upper Tribunal. By an order dated 24 November 2014 UTJ Kekic set aside the decision of the First-tier Tribunal and directed a hearing with a view to remaking the decision. That hearing took place on 19 January 2015. By a determination promulgated on 13 February Judge Kekic dismissed the Appellant's appeal against the deportation order.
8. This is an appeal against the decision of the Upper Tribunal. The Appellant was represented by Mr Richard Drabble QC, leading Mr Ranjiv Khubber, and the Respondent by Mr Rory Dunlop.

THE BACKGROUND LAW

DEPORTATION OF FOREIGN CRIMINALS

The Applicable Legislation

9. The Secretary of State's power to deport non-UK nationals derives from section 3 (5) of the Immigration Act 1971 (as amended), which reads, so far as material:

"A person who is not a British Citizen is liable to deportation from the United Kingdom if –

(a) the Secretary of State deems his deportation to be conducive to the public good; or

(b) …"

10. The UK Borders Act 2007 provides for a regime governing the deportation of non-nationals who are convicted in the UK of criminal offences. Section 32 reads, so far as material, as follows:

"(1) In this section "foreign criminal" means a person –

(a) who is not a British citizen,

(b)        who is convicted in the United Kingdom of an offence, and

(c)        to whom Condition 1 or 2 applies.

(2)        Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3) ….

(4)        For the purpose of section 3 (5) (a) of the Immigration Act 1971 …, the deportation of a foreign criminal is conducive to the public good.

(5)        The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).

(6) - (7) …"

Section 33, as referred to in section 32 (5), contains a number of exceptions to the obligation on the Respondent to deport a foreign criminal. On this appeal only Exception 1 is relevant, which, by sub-section (2), applies "where removal of the foreign criminal in pursuance of the deportation order would breach (a) a person's Convention rights, or (b) …".

11. The consideration by a court or tribunal of whether a decision made under the immigration legislation is in breach of the rights of any person under article 8 is subject to the provisions of Part 5A of the Nationality, Immigration and Asylum Act 2002, which was introduced by the Immigration Act 2014 with effect from 28 July 2014. Section 117A (2) provides that in considering whether an interference with a person's right to respect for their private and family life is justified under article 8 (2)

"the court or tribunal must (in particular) have regard—

(a) in all cases, to the considerations listed in section 117B, and

(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C".

12. Section 117B reads:

"(1) The maintenance of effective immigration controls is in the public interest.

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-

(a) are less of a burden on taxpayers, and

(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-

(a) are not a burden on taxpayers, and

(b) are better able to integrate into society.

(4) Little weight should be given to-

(a) a private life, or

(b) a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.

(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom."

13. Section 117C reads:

"(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.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(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.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted."

14. It is convenient to record at this point that there was some discussion before us as to the correct construction of section 117C (6). At first sight a possible reading of the phrase "over and above those described in Exceptions 1 and 2" is that the foreign criminal is obliged to show, first, that he fell within the terms of one or other (or possibly even both) of the exceptions, and then to demonstrate, additionally, "very compelling circumstances". But Mr Drabble submitted that this was an over-literal approach and that the thrust of the provisions as a whole was that the very compelling circumstances which the criminal must show must be more compelling than those covered by the specified exceptions. No doubt in the paradigm case falling within sub-section (6) one or other of the exceptions would be satisfied, but that might not always be so, and a more flexible approach was preferable so as to avoid a mismatch between the approach adopted under the legislation and that required by article 8. He also pointed out that the issue was not in any event of substantial importance since section 117A only requires the decision-taker to "have regard to" the considerations in sections 117B and 117C, so that even if the stricter construction of sub-section (6) were adopted the Respondent would not be compelled to act in breach of article 8 (contrary to section 33 of the 2007 Act) if that is what deportation would entail in any given case. Mr Dunlop did not advance any argument in rebuttal on either point. In my view the better approach is to adopt the more flexible construction advanced by Mr Drabble.

The Immigration Rules

15. The deportation of foreign criminals is the subject of Part 13 of the Immigration Rules. Its core provisions – paragraphs 398-399A – closely track those of section 117C (3)-(6). Nevertheless, in order to make sense of the references in the Upper Tribunal's determination I need to set out part of them here.
16. Paragraph 398 reads as follows:

"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."

17. I need not set out paragraph 399 since it is concerned with the case where the person facing deportation has a partner or a child. Paragraph 399A reads:

"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 Authorities

18. At the time of the decision of the Upper Tribunal the leading case on the correct approach to the application of article 8 to the deportation of foreign criminals was MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 WLR 544. It was concerned with an earlier version of the Rules, but the differences are not material. That decision remains good law following the decision of the Supreme Court in Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799, which substantially endorsed the judgment of this Court in MF (Nigeria) (subject to one qualification about the extent to which the Rules constitute a "complete code" which is of no practical significance). At the times material to those cases Part 5A of the 2002 Act was not yet in force; but it was not suggested before us that section 117C had effected any substantial change in the law, since, as I have said, its provisions broadly correspond to those of the Rules.

ACQUISITION OF BRITISH NATIONALITY

19. Although the Appellant is not a British citizen it is an important feature of his case that there was a substantial period during which he had an absolute entitlement to acquire British nationality. The relevant provisions are those of section 1 of the British Nationality Act 1981, which came into force on 1 January 1983. Sub-sections (1) and (2) confer a right to citizenship in circumstances which do not apply in the present case. Sub-sections (3)-(4) at the material times read as follows:

"(3) A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) or (2) shall be entitled to be registered as a British citizen if, while he is a minor—

(a) his father or mother becomes a British citizen or becomes settled in the United Kingdom; and

(b) an application is made for his registration as a British citizen.

(4) A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) or (2) shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person's life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90."

20. Since the Appellant's father acquired ILR – and thus became "settled" – in October 1987, he could have become a British citizen by an application made under sub-section (3) at any time between then and his eighteenth birthday in June 2001. Thereafter he retained the right to acquire British nationality on application under sub-section (4), provided only that he had not been out of the UK for longer than the maximum period during the first ten years of his life: as to that, I have already noted that the Appellant has never left the UK.
21. The legal position changed with effect from 4 December 2006 by virtue of section 58 of the Immigration, Asylum and Nationality Act 2006, which provided that the Secretary of State should not grant an application for registration under section 1 (4) of the 1981 Act unless satisfied that the applicant was of good character. In view of the convictions which the Appellant had accrued by 2006, it seems unlikely that he could have acquired citizenship at any time after that date.
22. In summary, there was a nineteen-year window, between the ages of four and 23, when the Appellant had an absolute right to acquire British citizenship. For the first fourteen years the application would have fallen to be made by his parents on his behalf, and in the last five years by himself.

THE REASONING OF THE UPPER TRIBUNAL

23. We are only concerned with the decision of the Upper Tribunal because there is no appeal against the decision to set aside the decision of the First-tier Tribunal. I can summarise Judge Kekic's thorough and careful reasoning as follows.
24. Her starting-point was that it was common ground that the Appellant's case fell within head (a) of paragraph 398 because he had in 2007 received a sentence of imprisonment of four years. For the same reason, though she does not spell this out, neither of the exceptions in sub-sections (4) and (5) of section 117C could apply in his case. It is a peculiarity of the case that it is not in fact the Appellant's sentence in 2007 which triggered the decision to deport him but the subsequent sentence of three-and-a-half years for drugs offences, and that if regard were had only to the latter he would fall under head (b) of paragraph 398 (and likewise be within the scope of section 117C (4) and (5)). However, the Respondent in her decision letter relied explicitly on the earlier conviction, saying that the only reason that she had not taken deportation action at that point was that the conviction had not been notified to the Home Office because (interestingly) "it was believed you were a British citizen". Mr Drabble conceded that she was entitled to do so and accordingly that sub-sections (4) and (5) were inapplicable.
25. Since the case fell under head (a), it was also common ground, as the Judge recorded (see para. 74 of the determination), "that when assessing the question of whether removal is a proportionate interference with his article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be 'exceptional') is required to outweigh the public interest in removal". That is of course a summary of the law as stated in MF (Nigeria) and it remains good law following Ali; it also reflects the effect of section 117C (6).
26. The Judge went on to summarise her findings of fact on the uncontentious aspects of the evidence. I have already set out the matters which are essential for the purpose of this appeal. As regards the contentious parts of the evidence, she said that she would address those in the context of her consideration of the issues arising under sections 117B and 117C. She went through those issues as follows.
27. As regards section 117B (1) she said this, at para. 83:

"Plainly, the maintenance of effective immigration control requires the appellant's deportation. He has never had leave to be here and no steps have been taken to regularise his stay. It is maintained that his parents assumed he would be British by birth however no legal advice appears to have been taken in this respect. The rules do not seek to make any distinction between those who knowingly remain without leave and those who do so without realising they have no lawful basis to remain."

It will be seen that the Judge does not make an explicit finding about whether the Appellant's parents – or indeed he – understood at any material time that he was not entitled to British citizenship unless an application was made. But her reference to the fact that they had not taken legal advice suggests that she accepted his evidence on that point. It is entirely plausible that they did not understand the position at any time prior to December 2006, at which point the law changed to his disadvantage; and I think we must proceed on that basis. In so far as the Judge implies that they should have taken advice, I see some force in that, but the position may not be quite so straightforward given that different rules had applied to the younger of his two elder brothers (see para. 20 above) and they might not have appreciated the change that occurred in 1983.

28. As regards section 117B (2) and (3), Judge Kekic noted that although of course the Appellant spoke English the evidence of his integration into society was, having regard to his history of offending, mixed; and that he had never been financially independent. I am bound to say that I am not sure whether sub-sections (2) and (3) are in truth directed to a situation of the present kind, where the person in question has lived in the UK since birth and is one sense fully integrated into society, however anti-social their behaviour. But the question is not of importance for the purpose of the issues before us.
29. As regards section 117B (4), the Judge said, at para. 88:

"I accept of course that the appellant has a private life here and that removal would interfere with it. However there is very little information before me as to the nature of that private life. I must also bear in mind that little weight is to be given to a private life that is established during unlawful residence."

To anticipate, the final sentence in that passage is at the heart of the appeal before us.

30. The Judge then addressed section 117C. At paras. 89-93 of the determination she assesses the seriousness of the Appellant's offending for the purpose of sub-sections (1) and (2). In that context she notes that he had disregarded the warning that he had received in 2011 (see para. 4 above) and expresses scepticism about his assertions that he had turned over a new leaf. Sub-sections (3)-(5) did not apply, since the Appellant had been sentenced to a period of four years' imprisonment, and the Judge accordingly observes, at para. 94, that:

"The only possibility of succeeding in his appeal is if the appellant can show very compelling circumstances over and above matters such as lawful residence, social and cultural integration in the UK and obstacles in integrating into the country of deportation."

That is evidently a reference to sub-section (6). She continues:

"The circumstances put forward are his long residence and his birth in the UK. I cannot see how unlawful residence, albeit for all his life, can be seen as a factor which would trump lawful residence for most of one's stay here. Of course the fact that he has only known Britain as his home is an important factor to consider but apart from that there are no other matters which I find can be said to be very compelling."

I draw attention to the second sentence in that passage, since it is, as already indicated, central to the issues before us that the Judge proceeded on the basis that the Appellant's entire residence in this country was "unlawful".

31. Having thus identified the Appellant's case as depending on the fact that he had lived in the UK all his life, the Judge proceeded at paras. 95-98 to balance that against the factors going the other way. In para. 95 she refers to a number of factors, including most obviously his long history of criminal behaviour but also, relevantly for our purposes, "the absence of any lawful leave".
32. The Judge then went on, at paras. 96-97, to assess the evidence about the difficulties that the Appellant would face if returned to Nigeria. She says, at para. 96 that although the Appellant had never been to Nigeria he was "of Nigerian ethnicity". She refers to the fact that the applicable UKBA guidance says that the fact that a foreign criminal has never lived in the country of deportation need not necessarily mean that there were "very significant obstacles" such as to prevent deportation, particularly if he could speak a language of that country. She appears to accept that the Appellant does not speak any indigenous Nigerian language but she observes that "English is widely spoken there". She assesses his prospects of supporting himself in Nigeria. At para. 97 she finds it probable that he has family members in Nigeria. She concludes:

"However even without friends or relatives, the guidance states that this would not in itself be a significant obstacle to integration and points out that many people migrate to countries where they have no ties … I accept of course that relocating to Nigeria would be difficult for the appellant. It would be a substantial change to life in the UK. However there has been no specific evidence relating to the contention that there would be very serious obstacles to integration and having had regard to the guidance, I do not consider that this claim has been made out. I accept that the appellant has epilepsy however it was not argued that he would be unable to receive the appropriate medication for the management of his condition in Nigeria."

33. After a discussion, which I need not summarise, of the letters of support relied on by the Appellant, the Judge concludes:

"The fact remains that the public interest in deportation is now substantial and that very compelling circumstances are required to override that interest where there is a sentence of four years or more. I have considered all the evidence very carefully and at length, hence the delay in the preparation of this determination and its length. I cannot, however, find in the appellant's favour despite the fact that he has only known life in the UK. All the matters I have set aside lead me to conclude that deportation is the appropriate course in this case and that such action would be proportionate. I appreciate that this decision will come as a blow to the appellant and his relatives but the appellant has brought this upon himself by his unacceptable behaviour."

THE APPEAL

34. The grounds of appeal as originally pleaded were not very clearly formulated, and when I gave permission to appeal I sought to group them under two heads. As developed by Mr Drabble they had a slightly different structure, though remaining substantially the same, and can be summarised as follows:

(1) He submitted that Judge Kekic materially misdirected herself at paras. 88 and 94 of her determination – see paras. 29 and 30 above – by treating the Appellant's presence in the UK as "unlawful" and thus as concluding that little weight should be attached to the fact that he had been here his whole life.

(2) He submitted that her conclusion that there were no very compelling reasons in the Appellant's case such as to outweigh the public interest in his deportation was one which was not open to her in law in all the circumstances of his case. That submission did not depend on whether the Appellant's residence was properly characterised as lawful; but it was a fortiori if it was.

If the Appellant succeeds on ground 1 alone the appeal would have to be remitted. If he succeeds on ground 2, with or without ground 1, his appeal against the deportation order would succeed.

GROUND 1

35. Mr Drabble submitted that UTJ Kekic was wrong as a matter of law to characterise the Appellant's presence in the UK from birth as "unlawful". He submitted that the central concepts in the statutory scheme of immigration are "leave to enter" and, having entered, "leave to remain". The Appellant, having been born here, had never required leave to enter and did not require leave to remain. The basic power of so-called "administrative removal" in section 10 of the Immigration and Asylum Act 1999 (as amended by the 2014 Act), which is headed "Removal of persons unlawfully in the United Kingdom", depends explicitly on such leave being required but not having been granted. Sub-section (1) reads:

"A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it." ^[1]

It is true that if the Appellant left the country he would require leave to enter if he wished to return. He would also of course be liable to deportation under section 3 (5) of the 1971 Act if his presence was not conducive to the public interest. But his default status was that he was irremovable. (If his parents had not had leave to enter or remain he could have been removed with them – see section 10 (2)-(6) of the 1999 Act and its predecessor provisions; but that had never been so in his case.) That being his situation, his presence could not sensibly be described as "unlawful". He was in breach of no legal obligation by being here.

36. Mr Drabble contended that that analysis was in fact shared by the Respondent. He referred to a passage in the November 2009^[2] version of the Immigration Directorates' Instructions ("the IDI"), which read (see chapter 8, Introduction):

"This section relates to children born in the United Kingdom on or after 1 January 1983 who are not British citizens because, at the time of their birth, neither of their parents was a British citizen or settled here. Such children do not have the right of abode and are subject to immigration control. They are not here unlawfully, however, and are not required to apply for leave to remain … [emphasis supplied]"

He submitted that that was an accurate statement of the legal position and that it applied to the Appellant even after he ceased to be a child.

37. In support of his analysis Mr Drabble referred to the decision of the House of Lords in Chief Adjudication Officer v Wolke [1997] 1 WLR 1640. The issue in that case was whether EC nationals who had entered the UK without leave on the basis of their status as "qualified persons" exercising Treaty rights, but had since lost that status, were under any legal obligation to leave when asked by the Secretary of State to do so. It was held that they were not, because they had not originally required leave to enter. Lord Hoffmann, with whom the majority of the other members of the House agreed, said, at p. 1652 B-E:

"The key concept in UK immigration control is that of having 'leave to enter' the United Kingdom. The Immigration Act 1971 provides that a person who is not a British citizen shall not (subject to immaterial exceptions) enter the United Kingdom 'unless given leave to do so in accordance with this Act': section 3(1)(a). A person who enters without leave is an 'illegal entrant' (section 33(1); he may be removed by an immigration officer (Schedule 2, paragraph 9) and if he knowingly enters without leave, he commits a criminal offence: section 24(1)(a). Leave may be for a limited or indefinite period (section 3(1)(b)) and if limited, may be subject, to conditions restricting his employment or occupation in the United Kingdom: section 3(1)(c). A person with limited leave who overstays or fails to observe a condition is liable to deportation (section 3(5)(a)) and if he does so knowingly, commits a criminal offence: section 24(1)(b).

"The Act thus contemplates that persons who are not British citizens will be entitled to be present here only if they have been given leave to enter and that their right to reside in the United Kingdom will be a consequence of the terms of that leave. The whole scheme relies upon the exercise of control at the frontier and is part of the explanation for the insistence of the United Kingdom in retaining such controls, which will be specifically authorised under Protocol X to the Treaty of Amsterdam. The immigration controls of most European countries with land frontiers operate in a different way. Under their systems, the primary question is whether the non-citizen has a legal right to be present in the country, reside there, be employed or follow an occupation. His right to enter is a consequence of his having the right to be there rather than the other way round."

And at p. 1656 D-H he said:

"… the appellants were lawfully present in the United Kingdom. As Kennedy L.J. said, until they had actually been required to leave in accordance with applicable provisions of domestic law, their 'presence in the United Kingdom could [not] be properly described, in terms of immigration law, as unlawful.' I agree with this statement … It was true that they could be deported if (subject to appeal) the Home Secretary was able to exercise his power of deportation on the grounds of 'conducive to the public good.' But all non-British citizens were liable to deportation on this ground, even those who had lived here for many years pursuant to indefinite leave. That contingency could not make their presence here unlawful in advance of the order being made."

Mr Drabble submitted that the position of the Appellant was analogous to that of the appellants in that case. In both cases their presence was not unlawful because they had never required leave to enter.

38. Mr Dunlop initially contended that this point was not open to the Appellant because it had not been taken in the Upper Tribunal. But he did not press that objection. His primary substantive argument was that Mr Drabble's analysis as set out above – which he did not challenge as far as it went – was not determinative of the meaning of the term "unlawfully" in section 117B (4). He submitted that the draftsman had evidently been intending to reflect the effect of the Strasbourg case-law, which was encapsulated in the decision in Jeunesse v The Netherlands (2015) 60 EHRR 17. The Grand Chamber had in that case emphasised the contrast between the positions of those migrants who were "settled" and those who were not. He drew attention to the apparent equation, in paras. 102 and 104 of its judgment, of settled status with a positive and formal grant of residence rights – "where the authorities have granted an alien permission to settle" and "persons who have … been granted formally a right of residence". That was not the Appellant's case: he did not have a right of abode and had never been granted any other right of residence, and his presence was no more than tolerated.
39. In that connection Mr Dunlop referred to the decision of the Supreme Court in R (ST (Eritrea)) v Secretary of State for the Home Department [2012] UKSC 12, [2012] 2 AC 135. The issue in that case was whether an asylum-seeker was "lawfully" in the UK, within the meaning of the Refugee Convention, during the period when she had been given temporary admission pending a decision of her claim. The Court held that she was not, since she had not been given leave to enter. The word "lawfully" implied a positive right to be in the contracting state, "not just being tolerated" (per Lord Hope at para. 32 (p. 151 C-D)), and the appellant had no such right even though she could not be removed (para. 35 (pp. 152-3)). The House distinguished the decision of the House of Lords in Szoma v Secretary of State for Work and Pensions [2005] UHL 64, [2006] 1 AC 564, in which it was held that a refugee on temporary admission was "lawfully present in the United Kingdom" for the purpose of entitlement to income support, on the basis that the House was there concerned with different legislation with a different purpose.
40. I prefer Mr Drabble's submissions. The way in which the Supreme Court in ST distinguished Szoma illustrates – what would in truth be evident anyway – that the meaning of the language of section 117B (4) of the 2002 Act is not to be found by following decisions on the effect of cognate, though not identical, language in other statutes. The question is whether the reference in this particular context to a person being in the UK "unlawfully" is to their presence being in breach of UK law or is merely to their not having a positive vested right of residence. In my view the former construction is correct, for essentially two reasons.
41. First, as a matter of the ordinary use of language it seems to me unnatural to describe a person's presence in the UK as "unlawful" (which is not necessarily the same as not being "lawful") when there is no specific legal obligation of which they are in breach by being here and no legal right to remove them – and all the more so where they have, as the Appellant did from the ages of four to 23, an absolute right at any time to acquire British nationality simply by making the necessary application.
42. Secondly, it seems to me that a construction which focuses on removability rather than a positive right to remain is more in keeping with the statutory context. Section 117B (4) is concerned with the establishment of a "private life" over a period of presence in the UK. The reason why it is reasonable to place little weight on private life established while a person's presence in the country has been "unlawful" is surely that he or she has no legitimate expectation of their continuing presence in the country and may be removed at any time. It is similar, but a fortiori, to that underlying section 117B (5), relating to private life developed while a person's immigration status is "precarious". It is hard to see how that policy can apply to the situation of a person born in the UK to parents who were lawfully present and who in due course became settled, who is legally irremovable and who is entitled to acquire British nationality: such a person's expectation that they will continue to live indefinitely in the UK is entirely legitimate.
43. I do not think that the Strasbourg case-law assists the Respondent. It is at best neutral, since the Court has not had to consider how the asserted dichotomy between "settled" and "non-settled" migrants would apply in a case like the present. In any event I am not convinced that the dichotomy is quite as sharp as Mr Dunlop suggested. In this connection Mr Drabble referred us to the discussion of the Strasbourg case-law by Lord Reed in Ali: see paras. 24-35 (pp. 4810-4). A point clearly made in those paragraphs is that, although of course the question whether a migrant is "settled" is an important consideration when assessing the proportionality of their deportation, the range of considerations expounded by the European Court of Human Rights ("the ECtHR") in the line of cases starting with Boultif v Switzerland (2001) 33 EHRR 50 and culminating in Maslov v Austria [2009] INLR 47 are applicable whether the person in question is settled or not: see esp. at para. 33 (p. 4813H). Mr Drabble also referred to para. 34 (p. 4814 D-E), where Lord Reed said this:

"It is … necessary to bear in mind that whether the continuation of family life in the UK is uncertain may be a more complex question than it might appear at first sight. For example, where a person was residing in the UK unlawfully at the time when the relationship was formed, but would have been permitted to reside here lawfully if an application were made from outside the UK, the latter point should be taken into account. That example illustrates how the distinction between settled migrants and aliens residing in the host country unlawfully may be, in some situations, of limited practical importance when translated into the context of UK immigration law (see, for example, Chikwamba v Secretary of State for the Home Department [2008] UKHL 40; [2008] 1 WLR 1420)."

The particular Chikwamba example does not bear on the present case, but I agree with Mr Drabble that the more general point made in that paragraph is apposite. I think that that the ECtHR would jib at describing the Appellant as anything other than "settled" for the purposes of the application of article 8, notwithstanding his failure to apply for the British nationality to which he was for most of his life absolutely entitled.

44. I should in this connection mention, because Mr Dunlop placed some weight on it, the decision of the ECtHR in Samsonnikov v Estonia (52178/10), [2012] ECHR 1373. The applicant was a Russian national who had been resident all his life in Estonia but was in his early thirties deported to Russia, where he had never lived, after committing various offences in Estonia and Sweden. He contended that his deportation was in breach of his rights under article 8 of the Convention, but his complaint was dismissed. The case demonstrates that the deportation of a person from a country where they have lived all their life is not necessarily a breach of their Convention rights, but the circumstances could not be more different from those of the present case. Russia and Estonia are of course neighbouring countries which had, when the applicant was born, and for some years thereafter, been part of the same state. The applicant belonged to a very large Russian-speaking minority which retained strong links to Russia. Russian was his mother tongue and he went to a Russian-speaking school: his knowledge of Estonian was "somewhat limited". He does not appear at any time to have had an absolute right to acquire Estonian nationality. He had acquired Russian nationality on his own application, while still living in Estonia. He had relatives in Russia. Mr Dunlop referred to the fact that the Court found, at para. 88 of its judgment, that there were no "insurmountable obstacles" to the applicant settling in Russia and submitted that the application of that test showed that the Court regarded him as falling on the "non-settled" side of the dichotomy expounded in Jeunesse. I think that that is to read too much into a particular phrase, which is equally apt as part of the proportionality balance whatever the nature of the applicant's status in Estonia. But in any event the fact that the applicant in that case may not have been settled in Estonia casts no light on whether the Appellant, in the very different circumstances of this case, is to be regarded for the purposes of the Strasbourg case-law as settled in the UK.
45. I would add that if I am right thus far the argument about the meaning of section 117B (4) is not of decisive importance anyway, since – as Mr Drabble emphasised in a different context (see para. 14 above) – the obligation under section 117A is only to "have regard to" the considerations enumerated in sections 117B and 117C and cannot trump the obligation to give effect to Convention rights.
46. I appreciate, of course, that the Appellant's position changed in 2006, when his right to acquire British nationality was qualified by the introduction of the suitability requirement. As at present advised I cannot see that that change had the consequence of rendering his presence in the UK unlawful, since even after it he remained irremovable (otherwise than by deportation). But the point is not decisive, because even if I were wrong about that the fact remains that from age four to 23 his presence was not unlawful and section 117B (4) could not bite on the private life established in that period .
47. It follows that I accept that Judge Kekic was wrong to direct herself at para. 88 of her determination that little weight should be attached to the fact that the Appellant had been in the UK his whole life and to rely also in para. 94 on his presence being unlawful.
48. Mr Dunlop's secondary submission is that even if the Judge misdirected herself in the two passages relied on the misdirection was not material. She expressly recognised at para. 94 of her determination that the fact that the Appellant had only known Britain as his home was "an important factor to consider", and if one reads her determination as a whole it is clear that she performed the essential exercise of weighing that factor against the public interest in his removal. He submitted that she would have been bound to reach the same conclusion even if she had not regarded section 117B (4) as applicable.
49. I cannot accept that submission. The Judge's misdirection went to the central issue in the case and one which required a peculiarly sensitive assessment. The facts are unusually stark because the Appellant had indeed lived here since birth, with an entitlement for most of that period to acquire British citizenship, and had no significant social or cultural links with the country to which he was to be deported: we were referred to no reported case in either the domestic or the Strasbourg case-law which could be regarded as substantially similar. In those circumstances the assessment of the weight to be given to the fact that the Appellant had never known any environment other than that of this country was of central importance; and it cannot be safe to conclude that the Judge was unaffected by her direction that it should be given little weight because his presence had throughout been unlawful.
50. There was some discussion before us about whether, even if section 117B (4) did not apply, section 117B (5) did – in other words, whether the Appellant's immigration status was at all material times "precarious". My answer to that question follows from what I have already said about sub-section (4). A person's immigration status is precarious when they understand, or should in any event be taken to have understood, "that their time in the host country would be comparatively short or would be liable to termination": see Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, [2016] 1 WLR 4203, per Sales LJ at para. 34 (p. 4213 C-D). That was plainly not the Appellant's position, at least up to 2006, though not necessarily even after then.

GROUND 2

51. It is Mr Drabble's case that the only possible conclusion in the circumstances of the Appellant's case is that his deportation would be a breach of his Convention rights. His central point is that which has already featured in the consideration of ground 1 – that is, that the Appellant has not only lived in the UK all his life but has done so in the (correct) understanding that he was, like the rest of his family, in practice settled here; with the related point that he enjoyed for most of that period an absolute entitlement to acquire British citizenship, and that the fact that he had not taken up that entitlement was, from the Respondent's point of view, purely adventitious. Mr Drabble pointed to the clear recognition in the Strasbourg case-law that the length of time that a person has been in the host country is an important consideration in striking the proportionality balance: he referred to the observation of the ECtHR at para. 75 of its judgment in Maslov that:

"The court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood or youth in the host country, very serious reasons are required to justify expulsion."

(That passage is referred to in Lord Reed's summary of the Strasbourg case-law in Ali – see para. 26 of his judgment (p. 4811 F-G).) The deportation of a person in his thirties who has been born in the host country and has never left is thus, he submits, very hard to justify as proportionate. In this case there was the added fact that the Appellant had no substantial links with Nigeria: he had never visited it, he did not speak any indigenous language, there was no evidence of any social or cultural links beyond the Judge's very general finding that he must have relatives there. He describes the case as "remarkable" and unlike any of those reported cases where a foreign criminal has been deported even though they have lived in this country from a young age.

52. As regards the last point, Mr Drabble also pointed out that in two recent decisions where the deportation of a person who had been in the UK since an early age had been upheld – ED (Ghana) v Secretary of State for the Home Department [2012] EWCA Civ 39, [2012] Imm AR 487, and DM (Zimbabwe) v Secretary of State for the Home Department [2015] EWCA Civ 1288, [2016] 1 WLR 2108 – the Court had felt able to distinguish Maslov (and the earlier decision of this Court in JO (Uganda) v Secretary of State for the Home Department [2010] EWCA Civ 10, [2010] 1 WLR 1607) on the basis that the appellant in those cases was not a settled migrant. He said that it was now clear from Ali that that distinction was ill-founded: see the passage from the judgment of Lord Reed to which I refer at para. 43 above.
53. Those are powerful points. But I am not persuaded that they are so powerful that this is a case where only one outcome was possible on the facts as found, even if the Judge had directed herself correctly about the application of section 117B (4). Even if one ignores ED (Ghana) and DM (Zimbabwe) – which I accept may now be suspect for the reasons given by Mr Drabble – the decision in JO (Uganda), while I do not suggest that it is on all fours with the present case, illustrates that presence in this country from a young age, and an absence of connections with the country of return, is not a trump card. It is also necessary to read para. 75 of the judgment in Maslov in the light of the decision of this Court in R (Akpinar) v Upper Tribunal [2014] EWCA Civ 397, [2015] 1 WLR 466. The Appellant's record of offending is serious and persistent. The fact that he had an explicit warning in 2011 of the risk of deportation if he continued to offend is a feature to which a tribunal would be entitled to give considerable weight. There has been no challenge to the Judge's conclusion that no very serious obstacles had been shown to his integrating in Nigeria (though that may reflect how the case was advanced – I note the Judge's reference at para. 97 of her determination to the absence of "specific evidence").
54. The truth is that cases of this kind are highly fact-sensitive, as Richards LJ observes in JO (Uganda) – see para. 22 (p. 1619E). I do not believe that this Court, which has not heard the primary evidence, is able to say with sufficient confidence how the proportionality balance should be struck.

CONCLUSION AND DISPOSAL

55. I would accordingly allow the appeal but only on ground 1. The upshot is, if my Lords agree, that the case should be remitted to the Upper Tribunal for a re-hearing before a differently constituted tribunal which should consider the case de novo.

Lord Justice Davis:

56. I agree.

The Master of the Rolls:

57. I also agree.

Note 1    The previous version of the section was in the relevant respects substantially to the same effect, though differently expressed.     [Back]

Note 2    It seems unlikely that this was the current version of the relevant chapter, but our attention was not drawn to any more recent version; and in any event Mr Drabble’s point does not depend on the precise date of the statement.     [Back]