ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM)
UPPER TRIBUNAL JUDGE FRANCES
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SALES
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|LUIS ENRIQUE REYES GARZON
Gordon Lee (instructed by Lawrence & Co Solicitors) for the Respondent
Hearing dates : Thursday 10 May 2018
Crown Copyright ©
LORD JUSTICE MCFARLANE :
"From the evidence before us, we find that it is likely that the appellant has been involved in criminal activities in the past for which he was not arrested or charged. The appellant's criminal convictions suggest an individual who has been involved in a criminal and somewhat chaotic lifestyle but also an individual who has, to some extent, been able to hide this from his family."
"We were left with very little evidence to substantiate the contact which the appellant states he has with his daughter and there was little, if any, evidence of any real involvement in his daughter's life. We find that there was insufficient evidence to show that the appellant has a genuine and subsisting parental relationship with a British national child."
Thereafter, the FTT made no further reference to the respondent's relationship with his daughter in the course of the Article 8 analysis that was conducted.
"120. The appellant has not come to the attention of the police for almost 5 years. His last conviction was in 2010 and there was no recent police intelligence to suggest that he had committed any further offences since that date. The appellant and his family all talk of the appellant being a changed man since his last offence. The appellant is in employment and has a new relationship with an Italian national. The appellant showed insight into his offending and was able to express how he felt that he had changed and how he now deals with aggressive or violent situations. The Judge's sentencing remarks noted that the appellant went far above what was required for self defence hence his conviction for section 18 wounding. The appellant's reaction to such events has markedly changed since his conviction but perhaps of most importance is the fact that the evidence is that the appellant has removed himself from his previous chaotic lifestyle. There was no evidence of such a lifestyle before us now and the appellant's partner's evidence was particularly compelling in this regard.
121. The appellant has lived in the UK for over 30 years. Although he has visited Colombia, he would, in effect, be a stranger to life in Colombia given his length of time in the UK and the strength of his connections to the UK. He spent the majority of his formative and all of his adult years in the UK and is integrated into UK life. His primary language is English and he has studied and worked in the UK. All of his close relatives are in the UK including his parents and a brother with whom the appellant has a close relationship. They are very supportive of the appellant and have remained supportive of him despite his convictions. The appellant's partner is also supportive and hopes to marry the appellant in the future. She is working in the UK running her own business and as a freelance tutor."
The legal context
"(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater 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 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 which C is supposed 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."
It is accepted that the greater includes the lesser and that the "very compelling circumstances" test in s.117(6) also relates to those sentenced to imprisonment of less than 4 years, although that category is not expressly referred to in the sub-section: see NA(Pakistan) v Secretary of State for the Home Department  EWCA Civ 662.
"123. The Paragraph 399A exception appears to have its origin in the Maslov principle, but it has been given a very significantly harsher twist in the final requirement of "very significant obstacles to integration". There could, therefore, be said to be an important gap between the private life exception of the Immigration Rules and statute on the one hand and the Maslov approach on the other, If the Maslov approach is introduced into the proportionality test envisaged at paragraph 44 of MF(Nigeria) then the fact that the appellant has not lived in Colombia from the age of 11 and has spent over 30 years in the UK meaning that he has been settled in the UK for most of his life would amount to a significant additional circumstance over and above the private life exception.
124. The evidence of reform and rehabilitation is also of importance. This is also a matter not mentioned in the exceptions. It is a significant factor in the Uner and Maslov criteria. The appellant has not committed any further offences since his conviction in 2010 and has not come to the attention of the police intelligence during this time. There is evidence that he has completed courses and that he has shown some insight into his offending. There is also evidence that he has moved away from his previous lifestyle. Whilst the likelihood of re-offending does not carry much weight in assessing the public interest it is still of some significance.
125. We have read Chege, and we note what is said at Paragraph 26 about the meaning of 'compelling', namely having a powerful and irresistible effect, and being convincing. We also note the observation that the word 'very' indicates the very high threshold. In deportation cases great weight must of course be given to the public interest in deporting foreign national criminals. However, there may be circumstances where the public interest is outweighed by the appellant's particular circumstances. We find in light of our findings above that that in this appellant's particular circumstances, the very compelling circumstances test is met. "
Lord Justice Sales