ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Eshun
DA/00674/2014,  UKAITUR DA006742014
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE NEWEY
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|EMMANUEL OLUWASEYI OLAREWAJU
Miss Carine Patry (instructed by Duncan Lewis Solicitors) for the Respondent
Hearing date: 8 March 2018
Crown Copyright ©
Lord Justice Newey:
The legal framework
"(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."
"the public interest requires C's deportation unless Exception 1 or Exception 2 applies or unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2".
"Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(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; …
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."
"a foreign criminal is entitled to rely upon such matters, but he would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 (and in paragraphs 399 or 399A of the 2014 rules), or features falling outside the circumstances described in those exceptions and those paragraphs, which made his claim based on article 8 especially strong".
In the case of a medium offender, therefore (as explained in paragraph 32):
"if all he could advance in support of his article 8 claim was a 'near miss' case in which he fell short of bringing himself within either Exception 1 or Exception 2, it would not be possible to say that he had shown that there were 'very compelling circumstances, over and above those described in Exceptions 1 and 2'. He would need to have a far stronger case than that by reference to the interests protected by article 8 to bring himself within that fall back protection. But again, in principle there may be cases in which such an offender can say that features of his case of a kind described in Exceptions 1 and 2 have such great force for article 8 purposes that they do constitute such very compelling circumstances, whether taken by themselves or in conjunction with other factors relevant to article 8 but not falling within the factors described in Exceptions 1 and 2. The decision-maker, be it the Secretary of State or a tribunal, must look at all the matters relied upon collectively, in order to determine whether they are sufficiently compelling to outweigh the high public interest in deportation."
"The implication of the new rules is that paragraphs 399 and 399A identify particular categories of case in which the Secretary of State accepts that the public interest in the deportation of the offender is outweighed under article 8 by countervailing factors. Cases not covered by those rules (that is to say, foreign offenders who have received sentences of at least four years, or who have received sentences of between 12 months and four years but whose private or family life does not meet the requirements of paragraphs 399 and 399A) will be dealt with on the basis that great weight should generally be given to the public interest in the deportation of such offenders, but that it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in the SS (Nigeria) case  1 WLR 998. The countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders, as assessed by Parliament and the Secretary of State. The Strasbourg jurisprudence indicates relevant factors to consider, and paragraphs 399 and 399A provide an indication of the sorts of matters which the Secretary of State regards as very compelling. As explained at para 26 above, they can include factors bearing on the weight of the public interest in the deportation of the particular offender, such as his conduct since the offence was committed, as well as factors relating to his private or family life. Cases falling within the scope of section 32 of the 2007 Act in which the public interest in deportation is outweighed, other than those specified in the new rules themselves, are likely to be a very small minority (particularly in non-settled cases). They need not necessarily involve any circumstance which is exceptional in the sense of being extraordinary (as counsel for the Secretary of State accepted, consistently with the Huang case  2 AC 167, para 20), but they can be said to involve 'exceptional circumstances' in the sense that they involve a departure from the general rule."
"The special feature in that context [viz. appeals against deportation decisions] is that the decision under review has involved the application of rules which have been made by the Secretary of State in the exercise of a responsibility entrusted to her by Parliament, and which Parliament has approved. It is the duty of appellate tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. But, where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, they should attach considerable weight to that assessment: in particular, that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender's deportation almost always outweighs countervailing considerations of private or family life; that great weight should generally be given to the public interest in the deportation of a foreign offender who has received a custodial sentence of more than 12 months; and that, where the circumstances do not fall within paragraphs 399 or 399A, the public interest in the deportation of such offenders can generally be outweighed only by countervailing factors which are very compelling, as explained in paras 37–38 above."
"In summary, therefore, the tribunal carries out its task on the basis of the facts as it finds them to be on the evidence before it, and the law as established by statute and case law. Ultimately, it has to decide whether deportation is proportionate in the particular case before it, balancing the strength of the public interest in the deportation of the offender against the impact on private and family life. In doing so, it should give appropriate weight to Parliament's and the Secretary of State's assessments of the strength of the general public interest in the deportation of foreign offenders, as explained in paras 14, 37–38 and 46 above, and also consider all factors relevant to the specific case in question. The critical issue for the tribunal will generally be whether, giving due weight to the strength of the public interest in the deportation of the offender in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed — very compelling, as it was put in the MF (Nigeria) case—will succeed."
"In a well known series of judgments the [European Court of Human Rights] has set out the guiding principles which it applies when assessing the likelihood that the deportation of a settled migrant would interfere with family life and, if so, its proportionality to the legitimate aim pursued. In Boultif v Switzerland (2001) 33 EHRR 50, para 48, the court said that it would consider 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 nationalities of the various persons concerned; the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; whether there are children of the marriage, and if so, their age; and the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled. Two further factors were mentioned in Üner v The Netherlands (2006) 45 EHRR 14, para 58: the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and the solidity of the social, cultural and family ties with the host country and with the country of destination. In Maslov v Austria  INLR 47, paras 72–75, the court added that the age of the person concerned can play a role when applying some of these criteria. For instance, when assessing the nature and seriousness of the offences, it has to be taken into account whether the person committed them as a juvenile or as an adult. Equally, when assessing the length of the person's stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it makes a difference whether the person came to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult. Some of the factors listed in these cases relate to the strength of the public interest in deportation: that is to say, the extent to which the deportation of the person concerned will promote the legitimate aim pursued. Others relate to the strength of the countervailing interests in private and family life. They are not exhaustive."
"I would certainly not wish to diminish the importance of rehabilitation in itself, but the cases in which it can make a significant contribution to establishing the compelling reasons sufficient to outweigh the public interest in deportation are likely to be rare. The fact that rehabilitation has begun but is as yet incomplete has been held in general not to be a relevant factor: see SE (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 256 and PF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 596. Moreover, as was recognised in SU (Bangladesh) v Secretary of State for the Home Department  EWCA Civ 427, rehabilitation is relevant primarily to the reduction in the risk of re-offending. It is less relevant to the other factors which contribute to the public interest in deportation."
"(a) The risk of reoffending is one facet of the public interest but, in the case of very serious crimes, not the most important facet.
(b) Another important facet is the need to deter foreign nationals from committing serious crimes by leading them to understand that, whatever the other circumstances, one consequence of them may well be deportation.
(c) A further important facet is the role of a deportation order as an expression of society's revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes.
(d) Primary responsibility for the public interest, whose view of it is likely to be wider and better informed than that of a tribunal, resides in the respondent and accordingly a tribunal hearing an appeal against a decision to deport should not only consider for itself all the facets of the public interest but should weigh, as a linked but independent feature, the approach to them adopted by the respondent in the context of the facts of the case. Speaking for myself, I would not however describe the tribunal's duty in this regard as being higher than 'to weigh' this feature."
In Ali v Home Secretary, Lord Wilson JSC said (at paragraph 70) that he now regretted his reference in sub-paragraph (c) to society's "revulsion" (that being, he considered, "too emotive a concept to figure in this analysis"), but he adhered to the view that he was "entitled to refer to the importance of public confidence in our determination of these issues".
"This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security  3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently."
The decisions below
i) Offences: Mr Olarewaju's offences were all committed when he was under the age of 18. This, Judge Beach said, is a "relevant factor" (paragraph 77). However, the last of the offences (i.e. the assault in the Young Offender Institution) was committed when Mr Olarewaju was "under no illusion that this was 'a borderline case'" and he "did not show any particular remorse for this offence" (paragraph 77);
ii) Rehabilitation: Mr Olarewaju, Judge Beach said, "has not been convicted of any further offences since 2013 and the evidence of the professionals was that [he] had turned his life around and now acknowledged his past mistakes and had an understanding of how his offences had adversely affected society" (paragraph 80). He "has obviously affected professionals in a significant way given that both his Key Worker and his Social Worker (who had travelled from Devon for the hearing) had attended the hearing to give evidence on [his] behalf …" (paragraph 79). Further, he "now lives away from the areas in which he became involved in criminal activities" (paragraph 79);
iii) Connections with the United Kingdom: Mr Olarewaju "has lived in the UK for more than half his life" (paragraph 81) and, while he ceased to be here lawfully when his visit visa expired, he "was not the one making decisions regarding the family's status in the UK" (paragraph 80). In Judge Beach's view, "the amount of time [Mr Olarewaju] has spent in the UK (albeit unlawfully) must be relevant in this particular case given [his] age when he arrived in the UK and the fact that he is still only 18 years old" (paragraph 81). "This is an Appellant who has spent the formative years of his life in the UK and would to all intents and purposes have considered himself to be British" (paragraph 83);
iv) Prospects in Nigeria: There "would be extremely limited family support if [Mr Olarewaju] were deported to Nigeria" (paragraph 83). He "would be returning to a country with which he is no longer familiar and with little, if any, support" (paragraph 83). His father "is unlikely to provide much support for [him] if he returned to Nigeria given that he seemed to provide very little support for [him] or his family whilst in the UK" (paragraph 82). Mr Olarewaju "is living independently in the UK but this is only with a significant level of outside professional support" and it "does not automatically mean that he would be able to find accommodation and employment in Nigeria" (paragraph 84). The problems in Nigeria are not "so serious that [Mr Olarewaju] would be at risk as a result", but it "would, of course, be a very real culture shock to [Mr Olarewaju] returning to Nigeria now" (paragraph 84).
"[I]n this particular case, there is an Appellant who arrived in the UK at a young age, whose offences were all committed under the age of 18, who has not committed any further offences for 2 years and who has professional support in the UK; support which would continue and which would mean that the Appellant would be extremely unlikely to reoffend in the future. The Appellant has turned his life around from a very difficult and turbulent teenage time. The public interest argument and the deterrence argument are both strong arguments in favour of deporting the Appellant but, I find, that in the particular circumstances of this case and as set out above, there are very compelling circumstances over and above the exceptions set out in Paragraph 399 and Paragraph 399 A of the Immigration Rules and Section 117C of the Nationality, Immigration and Asylum Act 2002 which mean that the Appellant should not be deported from the UK."
The present appeal
Lord Justice Simon: