ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE FLOYD
LORD JUSTICE SALES
| Kennedy Mwesezi
|- and -
|The Secretary of State for the Home Department
Lisa Giovannetti QC and Neil Sheldon (instructed by the Government Legal Department) for the Respondent
Hearing date: 2 May 2018
Crown Copyright ©
Lord Justice Sales:
ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS
117A Application of this Part
(1) This Part applies where a court or 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 cases 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).
117B Article 8: public interest considerations applicable in all cases
(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.
117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(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.
117D Interpretation of this Part
(1) In this Part—
"Article 8" means Article 8 of the European Convention on Human Rights;
"qualifying child" means a person who is under the age of 18 and who—
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;
"qualifying partner" means a partner who—
(a) is a British citizen, or
(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33(2A) of that Act).
(2) In this Part, "foreign criminal" means a person—
(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.
Factual background and the tribunal decisions
i) The FTT correctly directed itself regarding the seriousness of the appellant's offending and the significance of this in terms of the framework set out in Part 5A of the 2002 Act (para. );
ii) At paras. - the FTT placed particular emphasis upon the guidance given by the Grand Chamber of the European Court of Human Rights at para.  in its judgment in Maslov v Austria  INLR 47, see below. The FTT emphasised that the appellant had lived in the United Kingdom for practically all his life and had no significant links to Uganda. In this part of its decision, the FTT did not refer back to its finding that the appellant would not face very significant obstacles in relocating to Uganda;
iii) At para.  the FTT took into account evidence regarding the risk of re-offending, which was that it was only low to medium, and a positive appraisal from the appellant's probation officer; and
iv) At para.  the FTT accorded some weight to the appellant's satisfactory behaviour during his imprisonment and some weight to his mental ill-health.
"In a case like the present one, where the person to be expelled is a young adult who has not yet founded a family of his own, the relevant criteria are:
- the nature and seriousness of the offence committed by the applicant;
- the length of the applicant's stay in the country from which he or she is to be expelled;
- the time elapsed since the offence was committed and the applicant's conduct during that period;
- the solidity of social, cultural and family ties with the host country and with the country of destination."
i) The appellant had committed very serious offences when he was well into adulthood (compare and contrast the facts in Maslov and the references in the judgment indicating the potential relevance of the age at which the offending takes place, at  and ). He showed no remorse in relation to his offending. The risk of re-offending was assessed as medium to low, but it was not negligible;
ii) The appellant is a single man, with no compelling family ties. There is ordinary love and affection between him and his family in the United Kingdom, but this is well below anything which could amount to compelling circumstances for the purposes of section 117C(6): cf NA (Pakistan), -. The FTT found that, although the appellant is an adult, family life exists with the adult family members with whom he has been living, because of an element of dependency (see Kugathas v Secretary of State for the Home Department  EWCA Civ 31;  INLR 170). However, the element of dependency identified by the FTT is purely economic in nature, as part of an arrangement of which the appellant (not the other family members) is the beneficiary. In light of the FTT's finding that the appellant could start afresh in Uganda, the fact that he is the beneficiary of economic support from his family in the United Kingdom is not of any great weight;
iii) Although the appellant has lived almost all his life in the United Kingdom, he is intelligent, educated, resourceful and in reasonable good health. He could cope with his bi-polar disorder. He does not face very significant obstacles to his integration into Uganda and could make a new start for himself there;
iv) In my view, the Upper Tribunal was right to emphasise this last point to the extent that it did. The statutory regime and authority make it clear that a foreign criminal in the serious category has to put forward very strong grounds indeed under Article 8 to support a finding that his deportation is disproportionate. In the circumstances of this case, as found by the FTT, I consider that the appellant fell a long way short of being able to do that.
Lord Justice Floyd:
Lord Justice McFarlane: