(Immigration and Asylum Chamber) Appeal Number: HU/06179/2017
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 4 December 2019
On 18 December 2019
UPPER TRIBUNAL JUDGE O'CONNOR
UPPER TRIBUNAL JUDGE PLIMMER
ANONYMITY DIRECTION MADE
SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the appellant: Mr Jones, Counsel
For the respondent: Mr Whitfield, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant has appealed against the respondent's refusal of his human rights claim in a decision letter dated 24 April 2017. This was accompanied by a deportation order of the same date.
2. The appellant, a citizen of Zimbabwe, was born on 13 September 1991 and is therefore now 28 years old. In a decision sent on 27 February 2019, the First-tier Tribunal ('FTT') dismissed the appellant's appeal on human rights grounds. In a decision sent on 12 July 2019, a different panel of the Upper Tribunal ('UT') found that the FTT's decision contained a material error of law ('the error of law decision'). The FTT's decision was set aside with directions for the decision to be re-made by the UT at a resumed hearing, which we now do.
3. The FTT made comprehensive findings of fact having heard from the appellant, his father ('J'), his partner ('E'), E's mother ('S') and a friend ('ET') and having considered expert reports from (i) a country background expert on Zimbabwe, Professor Jeater ('the country expert report') and (ii) an independent social worker, Mr Horrocks ('the ISW'). These findings of fact were not challenged or cross-appealed by the respondent and it was agreed by both parties at the 'error of law' hearing that they constitute preserved findings in relation to article 8, ECHR. Although those findings are set out in the error of law decision, it is convenient to summarise them here. There are slight differences between the two summaries. The appellant has a very lengthy immigration history, and minor mistakes have been made within the voluminous documentation. We are satisfied that this summary is the most accurate and in any event, having been reviewed by the parties before us, not in any dispute.
(i) The appellant arrived in the UK on 16 September 2002 with his younger brother, when he was 11 years old in order to join his parents (both Zimbabwean citizens). At the time the appellant was treated as a dependent of his parents and given leave to enter until 28 August 2003. The parents were granted three years' discretionary leave ('DL') to remain in the United Kingdom ('UK') on 15 August 2003, following a successful appeal on human rights grounds.
(ii) The appellant and his family members' DL was thereafter extended until 2013, when the family members (apart from the appellant) were granted indefinite leave to remain ('ILR'). On 3 January 2013 the appellant's leave was reviewed but due to his offending at the time, a decision was made not to grant him ILR but to extend his DL to 2 January 2016. By contrast, the appellant told us that his brothers were given ILR in 2013. That summary of the family's immigration status at the time seems entirely plausible and in accordance with the respondent's relevant policies at the time - they would have had amassed ten years lawful residence in the UK.
(iii) The appellant applied for ILR in an application dated 30 December 2015, based on his ten years' lawful residence in the UK. This application was referred to the criminal casework team as a result of his criminal offending, and resulted in the decision under appeal.
(iv) The appellant's criminal offending is set out in his 'PNC' record, and began at an early age. In October 2005, when he had just turned 14, he was cautioned by the police for assault. When he was 15, in April 2007 he was convicted of robbery. In 2008, he was convicted of two separate offences: failure to surrender to custody at the appointed time and theft of a vehicle. In 2011 (when he was 19), he was convicted of various driving offences and possession of Class A drugs. The appellant was disqualified from driving and received an 18 month prison sentence suspended for 18 months with an unpaid work requirement. He failed to comply with that requirement and on 3 January 2012 (when he was 20) magistrates activated six weeks of his suspended sentence. In April 2012, he was again convicted of various driving offences including driving whilst disqualified and uninsured, and possession of class B drugs. The appellant was sentenced to a community order and unpaid work requirement. On 31 July 2012 he was convicted of failing to comply with the requirements of a community order.
(v) On 7 October 2013 the appellant was convicted of aggravated burglary of a dwelling, committed on 18 April 2013 (when he was 21). The sentencing judge identified aggravating features including the victims being at home, violence being used, a knife being present, a significant degree of planning and being equipped with blindfolds and cable ties. The sentencing judge had no doubt that the victims were severely traumatised by the offending and placed the offence within the highest category of the sentencing guidelines. This resulted in the imposition of a sentence of imprisonment of ten years, which was upheld on appeal by the Court of Appeal.
(vi) The appellant met E when they were teenagers in 2008. Their relationship has strengthened with time and survived the appellant's imprisonment between 2013 and 2018. They began cohabitating in 2011 and got married in 2015 (after the appellant had been convicted and was serving his sentence of imprisonment). In June 2012 (prior to the commission of the 2013 offence) the couple had a son, Y, who is now 7 years old. The appellant recommenced living with Y and E in November 2018. The FTT accepted that notwithstanding the appellant's imprisonment, he maintained an unusually strong relationship with Y, and Y's behaviour had greatly improved since his father's release from imprisonment. The FTT accepted the ISW's evidence that there is a significant risk that E (who works as a social worker) would suffer an emotional breakdown if the appellant is deported, which may in turn lead to the breakdown of the family unit and potentially Y moving to live with his grandmother, S.
(vii) The appellant has no family left in Zimbabwe. The FTT accepted that the appellant is unlikely to find formal or informal employment in Zimbabwe and therefore likely to be destined to the 'squalid' lodger-type accommodation available in Harare, if he can persuade someone to take him in, otherwise he will be in the homeless / shanty town population. He will be in a slightly better position relative to the population there, due to his limited financial support from the UK. The FTT found that the appellant's return to Zimbabwe would be best described as " deportation amounting akin to exile" as opposed to " deportation amounting to return".
(viii) The FTT also accepted that the appellant's efforts to change and rehabilitate are " exceptional" and " overwhelming". His medium risk of re-offending is based entirely upon 'static' factors only. Although the appellant pleaded not-guilty to the 2013 offence and maintains that position, he accepts that his conviction was still his fault and arose as a consequence of his lifestyle and associates at the time. The appellant's attitude and actions since his conviction can be characterised as a " model of rehabilitation". Although the appellant has only recently been released from prison, his commitment to his future life with his family and his relationship with his son are " exceptional".
(ix) Prior to his imprisonment, the appellant was working with his uncle as a decorator, and since his release from prison, has been offered employment, once he is legally able to take this up.
UT error of law decision
4. The UT concluded that although the FTT's decision was detailed and carefully drafted, it materially erred in law in:
(i) concluding that because the appellant does not have ILR, he is not a 'settled migrant' for the purposes of the guidance given in Maslov v Austria  ECHR 546;
(ii) failing to direct itself to the role played by the flexibility provision in s.117A(2)(a) of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act'), when attributing weight to the appellant's private life for the purposes of s.117B(5) and s.117C(6), in the manner anticipated as possible in Rhuppiah v SSHD  UKSC 58;  1 WLR 5536 at .
5. The UT panel rejected Mr Jones' submission that there could only be one result when the correct law was applied to the FTT's comprehensive findings of fact. The panel found that whilst there were features of the appellant's private life in the UK that might be capable of being viewed as " particularly strong" when assessed holistically, there were factors that went in the opposite direction and the FTT did not make a clear finding on this issue, either way. In addition, the panel was satisfied that the FTT's error of law in its approach to Maslov and s. 117B(5) infected its obiter conclusion at  that it would have allowed the appeal, but for its concern that it was obliged to attached "little weight" to private life.
6. The panel therefore made it clear that the UT would need to re-evaluate the nature and degree of the appellant's private life in the UK, make a decision on the weight to be attached to it, apply the FTT's other findings of fact in the light of the evidence available as at the date of the resumed hearing, in order to apply the ultimate test applicable in this case as set out at s.117C(6) of the 2002 Act.
7. At the beginning of the hearing we clarified the evidence available to us. This included the bundle before the FTT, a supplementary bundle containing updated witness statements and an updated ISW report, and a bundle of updated country background evidence on Zimbabwe.
8. Mr Jones acknowledged that although article 3, ECHR was relied upon before the FTT, the conclusion that there would be no breach of article 3 (see  and  of the FTT decision) was not appealed. Although Mr Jones' skeleton argument mooted the possibility of resurrecting the article 3 argument on the basis of the United Nations description of the conditions prevailing in Zimbabwe as bordering on an humanitarian crisis in a report dated 29 November 2019, he clarified that he did not wish to do so and was content to simply rely upon article 8, ECHR to support his contention that the appellant's appeal should be allowed on human rights grounds.
9. The representatives agreed that there was no dispute that the appellant was continuously lawfully resident in the UK from the date of his arrival (albeit his stay was precarious as he did not have settled status), subject to the deportation provisions of the Immigration Act 1971, following service of the deportation order. In any event, both representatives agreed that this appellant's immigration status in the UK should be considered to have been entirely lawful, albeit precarious.
10. Mr Jones called the appellant and E to confirm their updated witness statements. Mr Whitwell cross-examined the appellant briefly but did not cross-examine E. We asked a few short questions.
11. Before hearing submissions, we gave both representatives additional time to consider their position in the light of further authorities, including inter alia, GM (Sri Lanka) v SSHD  EWCA Civ 1630 and CI (Nigeria) v SSHD  EWCA Civ 2027.
12. Mr Whitwell relied upon a comprehensive skeleton argument. He acknowledged that conditions in Zimbabwe would be difficult for the appellant but submitted that with financial support from the UK, the appellant would be in a better position than many and able to afford the basics. He invited us to find that the public interest in this case is very strong and could not be outweighed by the cumulative impact of the compelling circumstances.
13. Mr Jones also relied on a comprehensive skeleton argument. Mr Jones submitted that we should approach this appeal in a similar manner to the FTT, save that we must make our own findings regarding the weight to be attached to private life. He argued that we should find that there are " particularly strong features" to the private life in question, to justify a flexible approach and in order to attach more than "little weight" to private life. To support this submission Mr Jones drew particular attention to the following: the appellant's length of lawful residence for well over half his life, which included much of his education; the appellant's private and family life blurred in this case; his strong social and employment ties; the appellant retained a strong British cultural identity albeit he retained some links to Zimbabwean culture (but would nevertheless be an outsider there); incarceration has not materially impacted the strong quality of the appellant's private life and the strength of his attachments; he has been strongly supported by friends with a very positive influence on him who have been prepared to offer him meaningful employment; his good behaviour in prison and strong links maintained during imprisonment such that the quality of the appellant's integration did not reduce during his imprisonment.
14. Having reached the finding regarding the weight to be attached to private life urged upon us by Mr Jones, he submitted that we should then allow the appeal. This is because the FTT stated clearly that it would have allowed the appeal but for the "little weight" provisions regarding private life. Mr Jones asked us to note that although the appellant committed a very serious criminal offence, the FTT accepted he was rehabilitated. Mr Jones asked us to find that the combination of the appellant's private and family life was very strong. In support of this, he drew our attention to the FTT's findings, in particular: Exception 1 met by a large margin; Exception 2 met in relation to E and Y (although Mr Jones noted that the FTT was clear that the relevant the s.117C(6) threshold could not be met by reference to family life alone); particularly strong features of private life; the appellant's family and private life as he knows it will cease and he will live in Zimbabwe in 'exile'.
15. After hearing helpful submissions from both parties, we reserved our decision, which we now give with reasons.
16. The proper approach to the relevant article 8, ECHR balancing exercise in a case such as this, where a deportation order has been made against a foreign national, is to be found in paragraphs 398-399A of the Immigration Rules and Part 5A (s.117A-D) of the 2002 Act. We agree with the reasoning of Leggatt LJ (with whom the Senior President of Tribunals, Ryder LJ and Hickinbottom LJ agreed) in CI (Nigeria) at  and , that it is generally unnecessary for a tribunal to refer to the Immigration Rules in a case such as this where there is no dispute that the relevant provisions are reflected within Part 5A. We therefore turn immediately to the text of Part 5A.
" 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 ...
(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.
(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
17. S. 117B is followed by this at s. 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-Ē
(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..."
18. The error of law decision comprehensively sets out the relevant legal framework, beyond the 2002 Act. At the hearing before us, there was no real dispute between the parties as to the applicable law. The dispute turned entirely upon the application of the facts to the governing legal test in s.117C(6), as informed by the remainder of Part 5A. We therefore only summarise the relevant principles derived from the authorities relevant to an article 8 claim based upon family and private life, brought by a foreign criminal who has been sentenced to imprisonment of four years and over i.e. a 'serious offender', who came to the UK when he was a child and has lawfully resided here for a lengthy period.
(1) The provisions in Part 5A, taken together are intended to provide a structured approach to the application of article 8, and " set the intended balance of relevant factors in direct statutory form" (see  of KO (Nigeria) v SSHD  UKSC 53;  1 WLR 5273) and produces a final result compatible with article 8 - see KE (Nigeria) v SSHD  EWCA Civ 1382;  WLR 2610, at  and Rhuppiah v SSHD  UKSC 58;  1 WLR 5536 at .
(2) The correct test to apply for serious offenders, such as this appellant, is to be found in s.117C(6). If, in applying s.117C(6), the conclusion is reached that the public interest requires deportation, the Tribunal is bound in law to give effect to this and there is no further need for a proportionality assessment.
(3) Generally, only " a very strong claim indeed" will be successful - see Hesham Ali v SSHD  UKSC 60,  1 WLR 4799 at  and the public interest " almost always" outweighs countervailing considerations of private or family life in a case involving a 'serious offender' - see Hesham Ali at  and KE (Nigeria) at .
(4) The public interest is movable and in certain cases must be approached flexibly for the reasons outlined in Akinyemi v SSHD  EWCA Civ 2098 (' Akinyemi No. 2') at  to . A full assessment of the public interest must then be balanced against an assessment of the article 8 factors said either on their own or cumulatively to constitute "very compelling circumstances" for s.117C(6).
(5) Although s.117C(6) sets an " extremely demanding" test, it nonetheless requires " a wide-ranging exercise", so as to ensure that Part 5A produces a result compatible with article 8 - see NA (Pakistan) v SSHD  EWCA Civ 662,  1 WLR 207 as applied in MS (s.117C(6)): "very compelling circumstances") Philippines  UKUT 122 (IAC),  Imm AR 769 at  and RA (s.117C: Unduly Harsh; offence: seriousness Iraq)  UKUT 123 (IAC),  Imm AR 780 at . The wide-ranging evaluative exercise required under s.117C(6) clearly includes an application of the principles in the Strasbourg authorities to ensure compatibility with the UK's obligations under Article 8 of the ECHR - see NA (Pakistan) at  and .
(6) Of particular relevance to this case, is the line of Strasbourg authorities addressing the nature and scope of private life as set out in Uner v The Netherlands  45 EHRR 14 and the guidance in Maslov - see the summary in Akinyemi No. 2 at - of the Supreme Court's approach to the Strasbourg authorities in Hesham Ali. This is because having come to the UK and resided here lawfully during his childhood and beyond, the appellant is entitled to be considered a 'settled migrant', and in any event for this background to inform the balancing exercise in his favour - see the error of law decision at  to  and the more recent analysis in CI (Nigeria) at -. However, it is inappropriate to treat the judgment in Maslov as if it is legislative text with a 'bright line rule' - see - of CI (Nigeria).
(7) The wide-ranging exercise required means that a serious offender is permitted to rely upon matters relevant to one or both exceptions in s.117C(3) as well as his ability to meet these in conjunction with other factors collectively, when assessing s.117C(6) - see NA (Pakistan) at . Although the exceptions are self-contained and exclude further consideration of the public interest (see KO (Nigeria)), in order to determine whether the public interest is defeated by "very compelling circumstances", a case-specific analysis of the public interest is necessary - see MS at  to .
(8) The list of relevant factors to be determined when conducting an article 8 balancing exercise and therefore the exercise required by s.117C(6) is not closed - see GM (Sri Lanka) v SSHD  EWCA Civ 1630 at . In particular, the concept of private life, as set out in the Strasbourg authorities such as Uner and Maslov is wide and includes social ties with relatives - see CI (Nigeria) at  to .
(9) Following Rhuppiah, those persons with anything less than ILR, have a "precarious" immigration status for the purposes of s.117B(5), and it follows that more than "little weight" can only be given to their private life where there are " particularly strong features". Although private life developed over many years during childhood tends to take on a special and compelling character, s.117B(5) applies to children as well as private life developed as a child and all relevant factors must be viewed holistically - see the error of law decision at .
(10) The guidance in Rhuppiah, including the flexible application of s.117B(5) wherein the private life in question has " particularly strong features", is relevant to the assessment of private life for the purposes of s.117C(6). At this stage, an assessment of both private and family life is necessary, and care must be taken not to apply s.117B(4) to family life - see GM (Sri Lanka) at .
19. As we have already observed, the respondent did not seek to cross-appeal the FTT's findings of fact. When we conduct the ultimate evaluation under s.117C(6), we apply those findings of fact but must do so by reference to all the evidence available to us as at the date of the hearing (the reference to the date of decision at  of the error of law decision was clearly a typographical error). In doing so, the overall evaluation of the largely accepted factual matrix when applying the test in s.117C(6) is for us, as we are re-making the decision.
20. In the 'error of law' decision, the panel observed that whilst the FTT highlighted features of the appellant's private life in the UK that might be capable of being viewed as " particularly strong" when assessed holistically, there was no clear finding to this effect and a clear finding on this is necessary. It follows that it is important that we directly address whether in this particular case there is sufficiently strong private life to enable a flexible approach to s. 117B(5), as explained in Rhuppiah. This in turn informs the degree of flexibility when assessing the requisite weight to be given to private (but not family) life for the purposes of s.117C(6).
21. We do not accept Mr Jones' submission that if we identify that there are " particularly strong features" of the appellant's private life, the appellant's appeal must be allowed, because that was the FTT's " default position" or at least what it indicated it would do - see - of the FTT's decision. The approach is much more nuanced than that. The identification of " particularly strong features" of private life simply means that more than "little weight" can be given to private life and a more flexible approach is warranted. The overall nature and degree of the appellant's private life and the weight to be attached to it, remains a matter for us. The ultimate decision on whether there are the requisite "very compelling circumstances" over and above the exceptions is also an evaluative judgment for us to make. The FTT did not explain with any degree of particularity how much weight it would have given private life or address the extent to which the appellant's private life blurred into his family life. In addition, Mr Jones acknowledged in his skeleton argument that the error of law decision made it clear that although the FTT found Exception 1 to be met by a considerable margin, the UT would need to make its own private life assessment because the FTT focused on conditions in Zimbabwe, and less so on the appellant's private life established in the UK.
22. The FTT confessed that it did not regard the exercise to be undertaken in the appeal to be straightforward - see  of the FTT decision. Having erred in law in its approach to Maslov and Rhuppiah, and therefore to private life more generally, it remains for us to undertake an assessment of private life that it is accordance with the authorities, and to then weigh this in the balance when re-making the decision.
23. We begin with the public interest. This is a flexible concept, as a matter of general principle - see s.117C(2) of the 2002 Act. The offence committed by this appellant, which carried a custodial sentence of ten years, is without doubt at the more serious end of the spectrum, and as such there is a greater, and in our view a prima facie very significant and powerful public interest in his deportation. In so finding, we have taken into account the comments of the sentencing judge. We acknowledge that the sentencing judge declined to attach significance to the appellant's previous offending but we agree with the FTT's observation at  of the FTT decision, that it carries some weight when assessing the strength of the public interest, albeit relative to the 2013 burglary, it is of comparatively minor severity. We nonetheless attach weight to the undeniable fact that prior to the 2013 offence, the appellant regularly and repeatedly offended from the age of 14 up until his lengthy imprisonment when he was 21, in the manner set out in his 'PNC' record.
24. We have also approached the public interest in the light of the reasoning in Akinyemi No. 2 at  to , and the conclusion that there will be cases where the person's circumstances in an individual case can reduce the legitimate and strong public interest in removal, albeit that the number of these cases will necessarily be very few, having regard to the legislation and the Immigration Rules. As emphasised by Ryder LJ at  and , the facts of Mr Akinyemi's case were unusually stark because: (i) he had lived in the UK since birth; (ii) with an entitlement for most of that period to acquire British citizenship, and; (iii) he had no significant social or cultural links with the country to which he was to be deported. The facts of the present case, save for (iii) are materially different and cannot properly be described as unusually stark.
25. We note that Ryder LJ considered Mr Akinyemi's residence in the UK for his entire life to be " materially different from the paradigm foreign criminal who arrives in the UK from another state and then commits crimes: a circumstance where the need for foreign nationals to appreciate the consequence of criminal conduct in terms of expulsion is much more obvious" - see . The context of the instant case does not necessarily fit neatly into the " paradigm foreign national" case described above because the appellant came to the UK lawfully as a child and remained in the UK lawfully. For reasons relating to this and the conditions prevailing in Zimbabwe, the FTT accepted and we take into account that the consequences of deportation for this appellant would not be a return to a 'home' state but would be more akin to 'exile'.
26. On the other hand, the appellant must have been aware that however British he may have felt, he was not a British citizen and was not even entitled to ILR. His status in the UK was initially dependent upon his parents' own precarious immigration status in the form of DL. When he became an adult (he became 18 in September 2009), his status became even more precarious - whilst he could rely upon his length of residence, ILR was unlikely given his criminal offending. Although this knowledge as a child must carry less weight for obvious reasons, such knowledge as an adult is more significant. This appellant must have known that his status in the UK was precarious. The appellant's case was reviewed on 3 January 2003 (when he was 21), at which time he was only given DL despite amassing the requisite ten years long residence in the UK. By contrast, at that stage his brothers and parents were granted ILR, following their ten years residence in the UK. Notwithstanding the clear signal to the appellant that his immigration status was precarious, he committed the very serious burglary offence very shortly after this in April 2013.
27. In addition, whilst we do not go behind the FTT's findings as to the obstacles the appellant would face if deported to Zimbabwe, it cannot be said that he has never known any environment other than that of the UK (as in Akinyemi No. 2). He was born in and spent a part of his formative childhood in Zimbabwe and then lived in a household in the UK with his Zimbabwean parents and siblings, with associated Zimbabwean food and culture. He continued to benefit from the love and support of his Zimbabwean parents during his childhood and this continues (unlike Mr Akinyemi who lost his mother at age 14).
28. We now turn to the issue of the appellant's rehabilitation and risk of re-offending. The FTT noted that the appellant's risk of re-offending was assessed in an OASYS report dated 13 June 2007 to be 'medium'. We have not been taken to any other evidence from the probation service to undermine this. The FTT summarised the detailed evidence regarding the appellant's good behaviour in prison, pursuit of only positive, law abiding contacts and positive attitude - see  to . This is entirely consistent with the numerous supporting letters from prison officers and those working with the appellant in prison in the FTT bundle. The FTT regarded the appellant's rehabilitation to have been " truly exceptional". We do not go behind the FTT's findings. However, the appellant has only been out of prison since August 2018 (about 18 months) and has not been 'tested' outside of the prison environment for a very lengthy period or even a significant period of time in the context of the lengthy period that he offended. This must be considered in the context of his background as a person who started committing crimes at a young age and this offending escalated and continued into his adulthood. The nature and extent of this offending is difficult to explain. The appellant has cited immaturity and bad influences yet at all relevant times he had clear support from loving parents, in addition to support from a loving and aspirational partner, and a large extended family. He was working at the time and did not have any mental health issues. We also note that the appellant was released on licence, which would carry with it a strong incentive not to commit further offences.
29. Nonetheless, we attach weight to the positive strides the appellant has taken to evidence his rehabilitation during his imprisonment and upon release in 2018 (as found by the FTT), but agree with the FTT that this carries limited weight in the overall analysis. It is now well-established that rehabilitation is only one facet of the public interest and as noted by Hamblen LJ (with whom Floyd LJ agreed) in Binbuga v SSHD  EWCA Civ 551,  Imm AR 5 at  " rehabilitation involves no more than returning an individual to the place society expects him to be". The appellant has made laudable efforts to progress his rehabilitation but his overall risk of reoffending must take this into account. We are satisfied that the history and nature of his offending in all the circumstances is such that he remains at a medium risk of re-offending. If the probation service had materially altered its analysis of risk from the 2017 OASYS report we would have expected this evidence to be placed before us and drawn to our attention.
30. The s.117B factors mostly weigh in the appellant's favour as it is not disputed that the appellant speaks English and has genuine employment offers available to him to enable him to be self-sufficient, and we take these matters into account, albeit they are largely neutral.
31. Having considered all the matters relevant to the public interest both generally and in this individual case, and the extent to which these factors are connected to the legitimate aim of preventing crime and disorder and maintaining immigration control, we are satisfied that the public interest in the appellant's deportation remains very strong.
32. We bear in mind the FTT's detailed findings under the sub-heading 'family situation' from  to  of the FTT decision. In particular, the FTT accepted that Y's relationship with the appellant is " unusually strong" and their separation would lead to " seriously adverse consequences on Y's development". E's mental health, her care for Y, and her career would all " seriously suffer". The impact upon E and Y would be " both more than would necessarily be involved for any child or partner whose parent or partner was faced with deportation, and more than that which is acceptable or justifiable even in the context of the high public interest engaged". The ISW report dated 27 October 2019 supports this analysis and describes the relationship between the appellant and Y as having become even closer since he resumed cohabitation. We accept Mr Horrocks' assessment that the appellant's return to the family home has led to an overall improvement in the emotional well-being of both E and Y. The FTT accepted that it would be unduly harsh for E and Y to live in the UK without the appellant, and also unduly harsh for them to live in Zimbabwe, such that Exception 2 is met, in relation to the appellant's relationships with both E and Y. As the FTT observed, the appellant's strong and committed relationships with E and Y (which have involved much perseverance to sustain) would effectively end, as even communication would be infrequent / unreliable given the prevailing conditions in Zimbabwe. Our assessment has taken all of these matters into account. We accept that Exception 2 is met as at the date of the hearing before us. We now turn to consider whether there is evidence to support the claim that the disruption to family life goes over and above the level of undue harshness. We are obliged to consider this for s.117C(6) and we do so now.
33. We begin by acknowledging that Y's best interests to continue to have a dedicated and positive father carries significant weight and is a primary consideration. The appellant was Y's primary carer before his imprisonment and has resumed that role after his release. However, we note that the FTT was cautious about elevating the impact on family life beyond undue harshness - see  of the FTT decision. We note that Exception 2 has been met vis a vis both E and Y and this is relevant when assessing "very compelling circumstances" on a cumulative basis. We proceed on the basis that the effect of deportation on the appellant's family life with both E and Y would be unduly harsh, but we are satisfied that this threshold has only just been met, for the reasons we outline below.
34. E and Y have had the active support of a very close large extended family unit during the entirety of Y's life including the appellant's incarceration, and they will be able to depend on this again, if the appellant is deported. We note that E is very close to her mother S, and at the time of the FTT hearing saw her on a daily basis - see  of the FTT decision. This has changed to weekends according to Mr Horrocks' report. Although it would not be ideal and there would be practical difficulties involved, we are satisfied that if necessary, E could turn to S on a more regular basis. E has recently moved to live closer to S and confirmed in evidence to us that they are only a 10 minute drive away. We accept that E and S have demanding jobs and S has 18 grandchildren, and in the circumstances, support from S will be difficult. We are nonetheless satisfied that notwithstanding these difficulties, E's extended family will be able to play an important role in supporting and assisting both E and Y, in the absence of the appellant. The FTT made it clear that there is a " wide and positive family network on E's side", without any history of 'family criminality' - see  of the FTT decision. We agree with the FTT's observations that the adverse impact of the separation will be keenly felt by E and Y, but that E together with her family will be able to protect Y from the very worst outcomes. Like the FTT we do not accept that Y is at any meaningful risk of being lost to gang culture in the absence of the appellant. We have noted that Y is said to have been emotionally damaged by the separation with his father when he was imprisoned, but again we are satisfied that he will have plenty of family members to assist him navigate what will be an inevitably difficult period. Y will also benefit from being able to maintain links with his paternal family and Zimbabwean heritage whilst living in the UK, as the appellant's family also live nearby.
35. We have taken into account Mr Horrocks' caution that E's mental health may be adversely impacted by the appellant's deportation and have noted the FTT's findings in this regard, including E's history of depression. However, again E will be able to turn to her own family and the various statutory agencies for assistance. We note the absence of any current medical evidence that E suffers or is at risk of suffering from any serious mental health condition.
36. We emphasise that the protective factors identified above in no way undermine the FTT's finding that Exception 2 is met, and we have proceeded on that basis. Rather, these serve to explain why in our view, the effect of the appellant's deportation on both E and Y only just meet the high threshold required by Exception 2. In this regard it is relevant to note that E began her relationship with the appellant when he only had DL. More significantly, E continued that relationship and took steps to strengthen it, when she knew that the appellant's immigration status was precarious and at a time that he continued to flout the law through criminal offending (with the inevitable result that his immigration status became even more precarious). We fully acknowledge that Y cannot be blamed for any of this and that this history in no way undermines the current strength of the family relationships. However, it is a relevant matter to accord some limited weight to when assessing the effect on family life holistically - see Rhuppiah at -. However, for completeness, we would have reached the same ultimate conclusion had we left this factor out of account.
37. Exception 2 focuses entirely upon the effect of deportation upon a qualifying child and / or partner. It is no way addresses the fact that this appellant's own meaningful and close family life with them and his extended family members will effectively cease. We have factored the broader impact of deportation upon family life for all concerned (the appellant, E, Y, the appellant's parents and extended family, E's extended family) and are satisfied that it cannot be said that the effect of deportation on family life goes "over and above" the threshold of undue harshness. As we have set out above, we are satisfied that the effect on E and Y only just meets the standard imposed by the concept "unduly harsh" and the effect on the extended family members will be much less significant, as the appellant has been living independently for a lengthy period.
38. The FTT found that Exception 1 was met and there is no reason to go behind this finding. Mr Jones acknowledged that the updated country background evidence on Zimbabwe is merely consistent with the FTT's findings, and as set out above, he made no application to resurrect reliance on article 3.
39. Although the FTT found that Exception 1 was met, (a) and (b) were accepted by the respondent and the FTT therefore (understandably) focussed on the likely conditions for the appellant in Zimbabwe for the purposes of (c) i.e. whether there would be very significant obstacles to his integration in Zimbabwe - see - and - of the FTT decision. As noted above, the FTT was not prepared to find that the appellant's circumstances in Zimbabwe would be so serious that there would be a breach of article 3. It is relevant to consider the reason for this: unlike the vast majority of Zimbabweans, the appellant would be able to benefit from financial support from his parents. Although likely to be small, the appellant will have adequate financial resources to obviate destitution in Zimbabwe.
40. We bear in mind the FTT's findings, but must make a decision as to the nature and extent of the appellant's private life and the weight to be attached to it for ourselves, in the light of the FTT's error of law in its application of Maslov and Rhuppiah, leading to the obiter conclusions from  onwards. We must consider the totality of the appellant's social ties, including his identity and relationships. In CI Nigeria Leggatt LJ explained that the nature and scope of the concept of private life is wide from :
" ... The nature and scope of the concept was explained by the Grand Chamber of the European Court of Human Rights in √úner v The Netherlands (2006) 45 EHRR 14, para 59, when it observed that: para 59, when it observed that:
"... not all [settled] migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy 'family life' there within the meaning of article 8. However, as article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual's social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of 'private life' within the meaning of article 8." (citations omitted)
58. Relevant social ties obviously include relationships with friends and relatives, as well as ties formed through employment or other paid or unpaid work or through participation in communal activities. However, a person's social identity is not defined solely by such particular relationships but is constituted at a deep level by familiarity with and participation in the shared customs, traditions, practices, beliefs, values, linguistic idioms and other local knowledge which situate a person in a society or social group and generate a sense of belonging. The importance of upbringing and education in the formation of a person's social identity is well recognised, and its importance in the context of cases involving the article 8 rights of persons facing expulsion because of criminal offending has been recognised by the European Court. Thus, in the √úner case at para 58, the court considered it "self-evident" that, in assessing the strength of a foreign national's ties with the "host" country in which they are living, regard is to be had to "the special situation of aliens who have spent most, if not all, of their childhood in the host country, were brought up there and received their education there."
59. The European Court returned to this theme in Maslov, stating (at para 73) that:
"... when assessing the length of the applicant'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 evidently makes a difference whether the person concerned had already come 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.""
41. It is convenient to consider the wide concept of private life in this case and the weight we to attach to it under sub-headings we set out below.
Length, lawfulness and surrounding circumstances of residence in the UK
42. It is undisputed that the appellant has lawfully resided in the UK for most of his life from the age of 11, and he therefore falls within the description of being in a " special situation", as described in Uner. In addition, as observed at  of the error of law decision " private life developed by a child over many years tends to, and usually does take on a special and compelling character". However, the private life developed by this appellant is weakened by his criminal offending and flouting of punishments from the age of 14. This behaviour continued and escalated notwithstanding the positive family and other relationships in his life. The appellant may have concluded his primary education and completed his secondary education in the UK, but Mr Jones did not draw our attention to any secondary school qualifications he achieved, which tends to indicate the appellant did not achieve any worthy of note. That would be consistent with the appellant's history of juvenile offending.
43. Zimbabwe has changed fundamentally since the appellant's departure and most meaningful ties to his country of birth have been severed. The FTT described the obstacles to integration going "well beyond" the "very significant obstacles" threshold and assessed his deportation as being akin to 'exile'. This must of course be viewed in context, as pointed out above, when addressing the public interest. This is not a case in which the appellant has no knowledge of and has never lived in his country of origin. He grew up with his Zimbabwean family. This is also a case in which the appellant has never had ILR and because of his criminal offending was most unlikely to obtain it. The reality is that this appellant's immigration status was precarious in fact as well as in law. His criminal offending (even before the 2013 offence) was such that he was most unlikely to obtain ILR, notwithstanding his ten years lawful residence.
44. Having considered all these matters in the round we are satisfied that the appellant's arrival to the UK as a child and his length of stay, together with the finding that he has no practical ties to Zimbabwe beyond his heritage and will have to face very difficult conditions there detrimental to his 'physical and moral integrity', are significant matters to take into account when assessing the overall strength of his private life. The Strasbourg line of authorities predicated upon Maslov, entirely support that approach.
Nature and extent of integrative links to the UK
45. It is undisputed that the appellant is socially and culturally integrated to the UK. The FTT accepted the appellant to be closely socially and culturally integrated to the UK but did not consider this in any detail, relative to the likely conditions he would face in Zimbabwe.
46. We accept the evidence before us that the appellant firmly regards himself as British in every aspect including his language, culture and identity, and that is more marked because of his lack of ties in any meaningful sense with his country of birth. The appellant is deeply familiar with and entrenched in the British way of life, as are his family members. This is unsurprising as he was brought up and educated in the UK from the age of 11, and has therefore resided here for 17 years.
47. Whilst we accept the appellant is clearly socially and culturally integrated in the UK, the nature of his links to the community have not been entirely positive. He began offending and associating with pro-criminal individuals at the young age of 14. The appellant continued to offend during his teenage years. Although he came to the UK at a young age, the strength of his positive connections and social ties have been weakened by his criminal associations from a young age. He demonstrated a disdain for the rule of law and the punishments handed down to him. His offending carried on into his adulthood and he committed a very serious offence when he was 21. By this time, he had been with his partner for a number of years and had a child. Yet this, combined with the support of his extended family and his employment at the time, were insufficient to prevent the commission of a serious offence as an adult. In addition, the appellant has spent a significant part (five years) of his adulthood in prison. As noted in CI (Nigeria) at , periods of imprisonment represent time spent excluded from society during which the prisoner has little opportunity to develop social and cultural ties. We note that in this case, the appellant's ties to his partner and child have continued throughout his imprisonment and strengthened upon his release. To the appellant's credit, he has severed ties with those associates whom he perceived to represent a negative influence post-conviction and retained positive friendships as set out in witness statements and letters of support in the bundle before the FTT. These friends have shown a belief in the appellant by offering him concrete employment that the appellant is keen to take up, if permitted to do so. The appellant clearly spent significant periods as a juvenile and in early adulthood interacting with negative pro-criminal associates. Whilst the appellant's social and cultural integration has not been destroyed by reason of his lengthy period of offending and imprisonment, we are in no doubt that it has been weakened by these matters.
48. In reaching this conclusion, we have taken into account that the appellant's links to Zimbabwe are marginal and the FTT's acceptance that there would be very significant obstacles to the appellant's integration to Zimbabwe and assessment at  that this goes " well beyond the necessary threshold". This is supported by the updated country background evidence before us. However, it does not follow that a person who has ceased to be socially and culturally integrated to his country of origin must have very strong integrative links with his adopted country. As noted in CI (Nigeria) at  a person may actually not be socially and culturally integrated anywhere. We emphasise that is not the position here. We are satisfied that the appellant's length of residence, which began when he was a child, together with his upbringing, education and family relationships are such that he has been and remains socially and culturally integrated in the UK. However, his history of offending and lengthy imprisonment have weakened his integrative links and the overall strength of his private life.
S. 117B(5) - "little weight" - "particularly strong private life"?
49. We have considered the above matters and given particularly careful attention to the matters highlighted by Mr Jones in his skeleton argument and during his oral submissions to support his submission that the appellant has demonstrated a " particularly strong" private life in the UK: lengthy residence; British identity, culture and language; no meaningful ties to Zimbabwe; strong immediate and extended family ties; friendship / social ties; past employment and future employment opportunities; adverse consequences for physical and moral integrity.
50. We have carefully considered all aspects of this appellant's private life in the round, in support of Mr Jones' submission that it is sufficiently significant, such that notwithstanding the appellant's "precarious" immigration status, his private life can carry more than "little weight", in the manner explained in Rhuppiah.
51. We accept that this is a case that can be described as a 'hybrid' because it involves both family / private life considerations of note, hence the FTT's conclusions (which we accept as at date of hearing), that both Exceptions 1 and 2 are met, and that family life blurs into private life. We note the observations in GM that s.117B(5) only operates in relation to private life not family life. However, when considering whether there are " particularly strong features" of the private life in question, we consider that the need to flexible (to ensure Article 8 compliance) as well as realistic, means that we are entitled to consider those aspects of family life that shape the nature and degree of social ties and relationships as part of private life. We remind ourselves that this wording in s. 117B(5) is not to applied inflexibly. Indeed, the form of words adopted by Lord Wilson is predicated upon the recognition that s.117A(2) provides a degree of flexibility.
52. We accept that the appellant's social ties necessarily involve those family ties that do not constitute 'family life' for the purposes of Article 8 i.e. his relationship with extended family members. We also accept that it is unrealistic to completely 'hive off' the appellant's article 8 'family life' with E and Y from his private life altogether. The reality of the situation is that the appellant's family life in the more general sense blurs into his private life. This is perhaps more pronounced in this case because the appellant met his now wife when they were 15 and 16 respectively, and also had a child together when they were young. His wife and her family are all British citizens and thoroughly British in cultural terms. He is also close to his own parents. As pointed out by Mr Jones, the unwavering support provided to the appellant by his parents, E and her wider family has continued throughout his imprisonments and thereafter during the course of the deportation proceedings. However, when assessing the strength of the appellant's private life, the focus must be on his private life. Contrast that with a proper assessment of family life, which necessarily involves a consideration of the family life shared by all the relevant members - see Beoku-Betts v SSHD  UKHL 39,  3 WLR 166. We have therefore focussed upon this appellant's private life in the UK but note that it has been moulded by the social ties he has with his immediate and extended family members.
53. We return to the language of s.117B(5). We are not satisfied that the private life established by the appellant in the UK, when his immigration status was precarious i.e. from the age of 11, contains " particularly strong features" in the sense explained in Rhuppiah. The FTT was clear in its assessment that the appellant was able to demonstrate that he met requirement (c) of Exception 1 by a considerable distance. This focuses upon the conditions in Zimbabwe and to a lesser extent on the fact that the appellant will be an outsider there. However, for the purposes of s.117B(5) our attention must focus on the private life the appellant has developed in the UK. In the circumstances, we wish to emphasise that nothing we say here should be interpreted as undermining our acceptance that the three conditions in Exception 1 are met, and that (c) is met by some distance. We entirely accept that this private life has strong features for all the reasons submitted by Mr Jones. When viewed holistically, we consider that the appellant's overall private life in the broadest sense has however been substantially weakened by his long history of criminal offending and imprisonment, and does not have " particularly strong features". To put it bluntly, the appellant has been in the UK for a lengthy period since the age of 11 and developed inter alia, social, cultural, family, relationship and employment ties, but he has been regularly involved in repeated criminal behaviour from the ages of 14 to 21, and was in prison from the ages of 21 to 26. He is now 28.
54. It therefore follows that we attach "little weight" to the appellant's private life in the UK. If we are wrong, and the appellant's private life as we have set it out above, has " particularly strong features" such that we should apply more than "little weight" to it, we would not be minded to attach great weight to it in the overall balancing exercise, as a result of the inevitable impact of the appellant's significant and protracted period of criminal offending and imprisonment.
Overall approach to private life
55. Drawing the strands of private life together: Exception 1 is met; requirement (c) of Exception 1 is met by some distance, with the appellant having lawfully lived in the UK since his childhood; we attach "little weight" to the appellant's private life established in the UK, even bearing in mind its 'hybrid' nature, influenced as it is by family life.
S. 117C(6) - very compelling circumstances over and above exceptions 1 and 2
56. We hope that we have carefully set out the wide-ranging enquiry we have undertaken. We now address all the relevant matters together in order to apply the relevant test pursuant to s.117C(6) of the 2002 Act. We begin by repeating a summary of the 'pros' in favour of there being "very compelling circumstances" in this case: Y's best interests; Exception 1 is met; the appellant has not just been lawfully present in the UK for the majority of his life but came to the UK lawfully as a young child; Exception 2 is also met in relation to both E and Y; there is therefore the combination of Exception 1 and 2 and the blurring between private and family life in this case; the circumstances for the appellant in Zimbabwe will be very difficult indeed; the appellant has evidenced laudable efforts toward rehabilitation; he is supported not just be his immediate family members but also by extended family members and friends.
57. We have explained why the appellant's private life established in the UK does not contain " particularly strong features", albeit he meets the requirements of Exception 1. We have also outlined why do not consider that the appellant's family life with his qualifying child and qualifying partner can be described "very compelling circumstances, over and above those described in" Exception 2. We entirely accept that there may be cases where the combination of meeting the two exceptions may tip the balance, even where each considered discretely cannot be said to reach the "over and above" threshold. We now address whether the combination of Exceptions 1 and 2 being met, together with all the aspects of private life and family life not specifically included in those exceptions, can be said to give rise to "very compelling circumstances over and above those described in exceptions 1 and 2". Relevant matters outside of Exceptions 1 and 2 include inter alia, the appellant's own family life ending, the effect of his deportation on extended family members particularly his parents and E's mother, private life in its widest sense including the "special situation" the appellant is in by virtue of having been in the UK lawfully for most of his life, since his childhood.
58. We are satisfied that notwithstanding the cumulative impact of the appellant meeting Exceptions 1 and 2 together with all the other 'pros', the high threshold required by s.117C(6) has not been met in this case. Our conclusion would be the same, even if we concluded that there are " particularly strong features" of private life present such that more than "little weight" could be attached to the private life in question. As the FTT observed at  if the appellant had received a shorter sentence or been involved in a less serious offence, the approach may have been more favourable to him. However, the ten year sentence signals a very strong public interest. We have already considered other factors relevant to the public interest in the round and reached the conclusion that the public interest in this case remains very strong. When that is weighed against the nature and degree of the appellant's private and family life (both viewed in their widest sense) on a cumulative basis, we are not satisfied that this is one of those rare cases where the extremely demanding threshold in s.117C(6) is met. The effect on E and Y will be unduly harsh and the appellant will have to give up his British life and family and start a new life in Zimbabwe in very challenging conditions indeed. However, it must also be remembered that the public interest in support of deportation in this case is very strong and each of the main protagonists are currently in good health and will continue to have other committed family members to support them (albeit the appellant from a distance) through the very difficult challenges likely to result from the appellant's deportation.
59. The appellant is a 'serious foreign criminal' and in order for his appeal on article 8 grounds to succeed he must meet the extremely demanding test in s.117C(6). For the reasons we have provided above, we are satisfied that the public interest in this particular case requires deportation because when all the relevant factors are considered in the round, it cannot be said that there are "very compelling circumstances over and above those described in Exceptions 1 and 2".
60. We dismiss the appeal on human rights grounds.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Signed: UTJ Plimmer
Ms M. Plimmer
Judge of the Upper Tribunal
Date: 16 December 2019