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 Eshun
DA/00674/2014, [2016] UKAITUR DA006742014

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/03/2018

Lord Justice Newey:

1. This is an appeal by the Secretary of State against the dismissal by the Upper Tribunal (Upper Tribunal Judge Eshun) on 18 January 2016 of her appeal from a decision of the First-tier Tribunal ("the FTT") (First-tier Tribunal Judge Beach) dated 24 June 2015. By her decision, Judge Beach allowed an appeal by Mr Emmanuel Oluwaseyi Olarewaju against his deportation.

Basic facts

2. Mr Olarewaju is a Nigerian national who was born on 9 September 1996. He entered the United Kingdom with his mother and siblings on his ninth birthday under a family visit visa. They remained in this country when the visa expired.
3. On 15 March 2010, when he was aged 13, Mr Olarewaju was convicted of robbery and sentenced to a referral order of four months. On 18 May of the following year, a 12-month youth rehabilitation order was imposed after he had been convicted of possession of a knife/sharp pointed article in a public place, possession of a Class B controlled drug and handling stolen goods. On 26 June 2012, he was convicted on two counts of possessing a Class A controlled drug with intent to supply, for which he was sentenced to 18 months' detention and training order. While in custody, he assaulted another inmate, as a result of which he was convicted in 2013 of battery.
4. On 12 July 2013, Mr Olarewaju and his mother and siblings were granted discretionary leave to remain in the United Kingdom. In Mr Olarewaju's case, however, that leave expired on 9 September 2014, his 18^th birthday. He had, moreover, been informed in a letter of 12 July 2013 that he would remain liable for deportation.
5. Mr Olarewaju had already, on 13 March 2013, been issued with notice of liability to deportation. On 1 April 2014, he was served with a deportation order. The FTT, however, allowed his appeal against deportation, and the Upper Tribunal upheld that decision. It is those decisions that the Secretary of State now challenges in this Court.
6. We were told that Mr Olarewaju was sentenced on 26 August 2016 to 44 months in a Young Offender Institution for supplying cocaine on 10 February of that year. That conviction can, however, have no bearing on the matters that we have to decide. Since the offence post-dated their decisions, neither the FTT nor the Upper Tribunal could have known of it.

The legal framework

7. Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the United Kingdom if, among other things, "the Secretary of State deems his deportation to be conducive to the public good". Where, in cases concerning the deportation of "foreign criminals" (who include persons who are not British citizens who have been convicted in the United Kingdom and sentenced to detention in an institution for young offenders of at least 12 months), the question arises of whether an interference with a person's right to respect for private and family life is justified under article 8(2) of the European Convention on Human Rights, the Court or Tribunal is directed by section 117A of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") to have regard, in particular, to the considerations listed in section 117C. That section provides:

"(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."

8. In NA (Pakistan) v Home Secretary [2016] EWCA Civ 662, [2017] 1 WLR 207, Jackson LJ, giving the judgment of the Court of Appeal, noted (at paragraph 24) that it is a "curious feature of section 117C(3) [of the 2002 Act] … that it does not make any provision for medium offenders who fall outside Exceptions 1 and 2". The Court concluded (in paragraph 28) that, on a proper construction of section 117C(3), it provides that for "medium offenders" (i.e. those with sentences of between one and four years' imprisonment):

"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".

(Emphasis added.)

9. So construed, section 117C of the 2002 Act chimes with paragraph 398 of the Immigration Rules ("the Rules"). As it stood at the date of the FTT's decision, paragraph 398 stated:

"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."

10. Paragraph 399A of the Rules provided:

"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."

11. The Court of Appeal considered the meaning of "very compelling circumstances, over and above those described in Exceptions 1 and 2" (as found in section 117C(3) of the 2002 Act) in the NA (Pakistan) case. The Court concluded (in paragraph 29) that a foreign criminal facing deportation is not "altogether disentitled from seeking to rely on matters falling within the scope of the circumstances described in Exceptions 1 and 2 when seeking to contend that 'there are very compelling circumstances, over and above those described in Exceptions 1 and 2'". The position is rather that:

"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."

12. The law relating to the deportation of foreign criminals was considered by the Supreme Court in Ali v Home Secretary [2016] UKSC 60, [2016] 1 WLR 4799. At the dates with which it was concerned, sections 117A to 117D of the 2002 Act were not yet in force, but paragraphs 398 and 399A of the Rules were already in very much the form set out above, though paragraph 398 then spoke of "exceptional" rather than "very compelling" circumstances.
13. In the course of his judgment, Lord Reed JSC, with whom the other members of the Court agreed, explained (at paragraph 38):

"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 [2014] 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 [2007] 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."

14. Going on, Lord Reed said this (in paragraph 46):

"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."

15. In paragraph 50, Lord Reed said this about the approach to be adopted by a Tribunal:

"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."

16. Earlier in his judgment (at paragraph 26), Lord Reed had said this about the Strasbourg jurisprudence:

"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 [2009] 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."

17. The Court of Appeal addressed the significance of rehabilitation in Taylor v Home Secretary [2015] EWCA Civ 845. Moore-Bick LJ, with whom McCombe and Vos LJJ agreed, said (in paragraph 21):

"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 [2014] EWCA Civ 256 and PF (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 596. Moreover, as was recognised in SU (Bangladesh) v Secretary of State for the Home Department [2013] 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."

18. With regard to that last sentence, in OH (Serbia) v Home Secretary [2008] EWCA Civ 694, [2009] INLR 109, Wilson LJ (as he then was) derived (in paragraph 15) the following propositions from earlier case-law:

"(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".

19. Finally, in terms of authority, Miss Carine Patry, who appeared for Mr Olarewaju, reminded us of the limited circumstances in which this Court should intervene. She took us, for example, to a passage from the judgment of Baroness Hale in AH (Sudan) v Home Secretary [2007] UKHL 49, [2008] 1 AC 678, where she said (at paragraph 30):

"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 [2002] 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

20. Mr Olarewaju accepted before the FTT that he did not bring himself within paragraph 399 or 399A of the Rules and, hence, that he had to show that there were "very compelling circumstances" over and above those described in those paragraphs. Judge Beach concluded that there were.
21. Judge Beach discussed Mr Olarewaju's history and circumstances in paragraphs 76-85 of her decision. The main points can, I think, be grouped under four headings:

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).

22. Judge Beach concluded as follows (in paragraph 85):

"[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."

23. Upholding the FTT decision, Upper Tribunal Judge Eshun observed that the Secretary of State's grounds of appeal "amount to no more than a disagreement with the judge's findings" (paragraph 22 of the Upper Tribunal decision).

The present appeal

24. Although the Secretary of State advanced more than one ground of appeal, I can concentrate, I think, on her contention that the FTT's finding that there were "very compelling circumstances" outweighing the public interest in deportation was unsustainable. Miss Catherine Rowlands, who appeared for the Secretary of State, submitted that the FTT paid no more than lip service to the factors in favour of deportation and arrived at a perverse conclusion. The Upper Tribunal was, in the circumstances, so Miss Rowlands said, wrong to uphold the FTT decision.
25. Miss Patry in contrast submitted that the matters to which the FTT had regard were relevant factors and, taken together, entitled it to conclude that there were "very compelling circumstances". Miss Patry suggested that the points that Judge Beach saw as counting in Mr Olarewaju's favour were all material, observing that Lord Reed had referred in Ali v Home Secretary to, among other things, "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" and "the age of the person" as potentially relevant factors when explaining the Strasbourg jurisprudence (see paragraph 16 above). Miss Patry stressed the respect that should be accorded to Tribunal decisions. The fact that a differently-constituted Tribunal might have taken a different view is, Miss Patry maintained, of no consequence.
26. In the end, I have concluded that Miss Rowlands is right and that, notwithstanding the considerable thought that Judge Beach clearly put into her decision, she arrived at a conclusion that was not reasonably open to her. The decision of the Supreme Court in the Ali case confirms 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" (see paragraph 14 above), that the FTT 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" (paragraph 15 above) and that, where paragraphs 399 and 399A of the Rules do not apply, in general "only a claim which is very strong indeed … will succeed" (paragraph 15 above). The present case was not, in my view, of that kind. When arriving at her conclusion in paragraph 85 of her decision, Judge Beach drew attention to Mr Olarewaju's youth and his apparent rehabilitation. With regard to the latter, the period since Mr Olarewaju's last conviction was not that long (two years), but in any event the significance of rehabilitation is limited by the fact that the risk of reoffending is only one facet of the public interest (see paragraphs 17 and 18 above). While, moreover, the young ages at which Mr Olarewaju committed the various offences of which he had been convicted were to be borne in mind, he will already have had credit for this in the sense that he will have received lesser sentences than an adult would have and, moreover, youth cannot without more be regarded as amounting to "very compelling circumstances" or it would never (or hardly ever) be possible to deport someone whose offences had been committed under the age of 18, which is not supported by the Strasbourg jurisprudence and cannot be the case. Mr Olarewaju's arrival in the United Kingdom "at a young age" (to quote Judge Beach) was reflected in the fact that he "would to all intents and purposes have considered himself to be British" and be bound to mean that there would be a "very real culture shock" if he returned to Nigeria, but it is notable that Judge Beach did not find that there would be "very significant obstacles to [Mr Olarewaju's] integration" into Nigeria (as section 117C(4)(c) of the 2002 Act and paragraph 399A(c) of the Rules would have required). Of course, not having been "lawfully resident in the UK for most of his life", Mr Olarewaju could not anyway take advantage of section 117C(4) or paragraph 399A, but it is still of significance that Judge Beach neither said in terms that there would be "very significant obstacles" to integration nor, as I see it, made equivalent findings. "[V]ery real culture shock" is not the same as "very significant obstacles".
27. In all the circumstances, the only reasonable conclusion is that there were no "very compelling circumstances" outweighing the public interest in deportation as the Secretary of State had decided in her fully reasoned decision letter of 26 March 2015. I would, accordingly, allow the Secretary of State's appeal and dismiss Mr Olarewaju's appeal against deportation. This is not, as I see it, a case in which it is necessary or appropriate to remit the matter to the FTT.

Lord Justice Simon:

28. I agree.