Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00461/2012

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Determination Promulgated
On 20 May 2013
On 3 June 2013
Prepared 20 May 2013
…………………………………

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

leland edward Mcclincton

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Gilbert, of Counsel instructed by Messrs J D Spicer Zeb Solicitors
For the Respondent: Mr D Hayes, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant, a citizen of America born on 13 September 1976, appeals, with permission, against a decision of the First-tier Tribunal (Judge of the First-tier Tribunal Ford and Mrs S I Hewitt) promulgated on 11 December 2012 in which the Tribunal dismissed the appellant’s appeal against a deportation order dated 25 June 2012 following a decision to deport under the provisions of Section 32(5) of the UK Borders Act 2007.

2. The appellant’s mother is British and his father American. He first entered Britain on 28 July 1987 with his younger brother and his parents. He was then aged 10 years and 10 months. On 15 May 1989 he was granted indefinite leave to remain.

3. The appellant has 37 convictions, six for offences against the person between 1992 and 2011, two against property between 1993 and 2002, 21 offences of theft and kindred offences between 1992 and 2011, six public order offences between 1997 and 2005, 23 offences relating to police/courts/prisons between 2001 and 2010, three drugs offences between 2001 and 2011 and two firearms/shotguns/offensive weapons offences between 1994 and 2010 as well as six miscellaneous offences between 1998 and 2004. The appellant it appears has therefore offended regularly between the age of 16 and his last offences, in 2011 when he was aged 35.

4. When considering the appeal the Tribunal noted in particular that on 13 June 2003 the appellant had committed a common assault on a child which had led to him being imprisoned for four weeks, on 30 July 2003 he had been imprisoned for 21 months for grievous bodily harm with intent after he had hit his victim a number of times over the head with a metal brace so that the victim had needed seventeen staples. The appellant had said that the victim of his attack had stolen the child’s bike bought with financial assistance from the appellant and that this had outraged the appellant.

5. They also noted that on 10 August 2005 the appellant had been convicted of wounding and sentenced to four years’ imprisonment – the appellant had stated that he had used a potato peeler in self defence and in defence of his pregnant partner and that the victim had been one of two drugs users who had broken into his home. The tribunal noted also that on 5 November 2010 the appellant had committed an offence of common assault against his then partner, LT, the mother of his son, O, who had been born in February 2010 and that the offence had taken place in front of his son.

6. They noted that the offence which had led to the decision to deport had been that whilst on bail for other offences in January 2011 the appellant had entered a newsagent’s shop with another man, his co-defendant, threatened the shop assistant and that the shop assistant had sustained some injuries although they were not deemed to be serious. The appellant had then been sentenced to imprisonment for 21 months in April 2011 with a further three months for an offence of theft.

7. In paragraph 17 of the determination the Tribunal stated that they had heard evidence from the appellant, his father and his mother about his criminal history and they were satisfied that the appellant had begun to get into trouble with the authorities from the age of 13 when he had started to smoke cannabis and to drink. He had used heroin from the age of 18 and attributed most of his criminal behaviour to his drug habit.

8. They noticed the sentencing remarks of the His Honour Judge Darroch when sentencing the appellant for his last offence, although they did not quote from these in full. I have considered the sentencing remarks and I think it relevant to note that the judge stated:-

“At a comparatively early hour in the morning in January two people bursting into a shop where there is one person on his own is a frightening experience; that is the first point. The second point is small businesses just cannot afford to stay in business if they lose their takings: up go their insurance policies, they lay staff off and they close down, they are very vulnerable in fact so courts have to protect businesses of this nature.

To your credit you have both pleaded guilty. The amount of force I accept is less than in many cases, I think it is correct to describe it as a struggle rather than an all out attack upon the person. The amount of money taken is not the largest one sees but is significant for business of the type I have mentioned. You McLeland [sic] were on bail at the time, both of you have a number of convictions. You accept, quite rightly, that an immediate prison sentence is going to follow, I shall keep it as short as I can but it must be significant.

Each of you for this robbery will be sentenced to a term of 21 months’ imprisonment. Mr McLeland [sic] in addition, for the assault on your wife I impose a three month consecutive sentence making two years in all. I take no action on the breach of the conditional discharge, there is no separate penalty on the other matters. I have taken into account the offences to be taken into account.”

9. In paragraphs 19 onwards the Tribunal noted that the appellant had three children with three different partners. His eldest son had been born in January 2000 and the appellant had had no contact with him since 2009 and there was very little evidence of contact before that time. They found that the appellant did not have a genuine subsisting relationship with that son.

10. His second child was born in July 2005 and again the appellant had said that he had no contact with that child since 2009 and there was no evidence before the court from the mothers of either of those children. The appellant had said that the mothers had said that they would need to see a significant change in his behaviour before they allowed contact again.

11. The Tribunal noted that O had been born in February 2010 and that his mother had written in August 2012 stating that she and the appellant had been living together for approximately two years. The appellant’s son had not seen him for over a year and it was his mother whom the appellant had assaulted in November 2010. The Tribunal concluded that the appellant had not seen O between November 2010 and August 2012, he having been only 9 months old in November 2010.

12. It was the appellant’s evidence that he had seen O on eight or nine occasions in the three months prior to the hearing.

13. LT had stated that O had asked for the appellant on a daily basis and remembered his voice and had stated it is important that “despite Leland’s mistakes” he was still his son’s father. It appeared from the pre-sentence report that that LT continued to be frightened of the appellant. It was the appellant’s evidence that LT was in a settled relationship and was engaged and due to be married in 2013.

14. The Tribunal noted that there was no witness statement from LT.

15. The Tribunal stated they were surprised that during the hearing to find that neither the appellant’s mother nor his father were aware that LT was engaged to be married to her current partner in 2013 or that there had a serious incident of domestic violence between the appellant and LT.

16. In paragraph 30 they concluded that the appellant was engaging in a significant degree of manipulation of both LT and their child. They stated they were concerned that the appellant would seek to disturb the stability which LT and the child now had for his own ends.

17. In paragraph 32 the referred to the pre-sentence report which although it noted that the appellant was motivated to address his drug use it stated that:-

“Until he is able to demonstrate his ability to sustain any change within the community and lead a drug-free life for a significant period of time, he is assessed as posing a high risk of serious harm to the public, including partners.”

18. They noted further that the appellant had engaged with the CARAT service and that his methadone prescription had gradually been reduced from 45 mls to 16 mls. He had completed a building skills for recovery treatment, a three day relapse prevention course and had also volunteered for frequent testing programme. They referred to the circumstances set out in the pre-sentence report in which the appellant had assaulted LT.

19. In paragraphs 34 onwards they considered a report on the psychiatric health of the appellant by Dr Sarah Isherwood. They noted, in particular, the circumstances in which the appellant had refused a random drug test in October 2012 for which he had received an adjudication.

20. They noted that Dr Isherwood stated that in her opinion it was likely that removal of the appellant from Britain would have a negative impact on his health. She stated that he had maintained close contact with family members and that appeared to be an important source of psychosocial support and be important to his continued recovery. She indicated that his mood might, if he were removed, deteriorate further and he might develop a depressive episode.

21. The Tribunal commented that it did not appear that Dr Isherwood had had a complete picture as to the appellant’s violent behaviour and his current circumstances. Moreover, they did not consider that Dr Isherwood had attached appropriate significance to the appellant’s refusal to take a drug test.

22. In paragraphs 45 onwards the Tribunal set out the evidence of the appellant and of his parents. It was his parents’ evidence that they could not offer the appellant accommodation on his release from prison, and that their income was limited and they could not afford to financially support the appellant either in Britain or in America. It was the appellant’s evidence that he had not had contact with his parents for a twelve month period during his recent period of imprisonment.

23. The Tribunal noted that the appellant’s father had said that he had seen a new maturity in the appellant when he had visited him after a period of time in prison and noted that the appellant’s mother saw the appellant’s two eldest children on a regular basis. The appellant had not kept his parents informed of his criminal behaviour after the age of 19/20.

24. It appeared that the appellant’s father had a brother, a sister-in-law and sister living in America, his sister was retired and she and her husband spent time travelling around America. The appellant had some cousins in America but it was not known if the appellant had any contact with them. His parents stated that they did not really know what the effect would be on the appellant if he were removed to America.

25. The Tribunal noted the appellant’s evidence that he had worked in the building trade as a roofer and a fitter but that he had spent many years unemployed due to his drug habit and due to injuries he had suffered in various road traffic accidents.

26. The appellant’s evidence was that LT was not frightened of him.

27. In paragraphs 64 onwards the Tribunal set out their findings of fact and their conclusions. They noted that the appellant had spent much of the past ten years in prison, that he had reduced his methadone script but that he was not yet drug-free and that he had pleaded guilty to every offence with which he had been charged. He had never engaged in any anger management course. They considered the appellant was manipulative in his relationship with LT and they quoted from a letter from her to the appellant in which she had stated:-

“I hate how things are and how they’ve turned out but there’s nothing we can do to change it. You have got a lot to do and prove to me before I can let you into Olli’s life. I’m sorry Leland but that little boy is my life and I can’t bear to think what all this has done to that little boy”.

28. Having further considered the relationship between the appellant and O the Tribunal stated the appellant was currently not in a position to offer his son a stable home.

29. In paragraph 71 they stated the appellant knew little about America but stated they were satisfied that the way of life and culture in the US was not alien to him. They referred to crossover between the culture of the US and the culture of the UK and stated that English was the predominant language in America. The appellant would be able to access emotional support from his parents and his brother by way of telephone calls and internet communication and could speak to them on Skype.

30. They stated it had not accepted a genuine and subsisting parental relationship with his first two children and that in relation to his third they did not accept that eight or nine visits to prison in the last three months had been a sufficient basis on which to conclude that the appellant had a genuine subsisting parental relationship with him. There was no proposal that the appellant should be that child’s primary carer. They emphasised that a child needed stability in his life and stated that there would be a long time before the appellant would be able to get his life in order and could contemplate seeing any of his children.

31. In paragraph 77 they refer to the judgments of the European Court of Justice in Maslov v Austria [2008] ECHR 546 and Üner [2006] ECHR 873.

32. They went on to state:-

“77…We consider the Appellant has a serious criminal history including serious violent offences against not only persons against whom he had a grudge, but also his partner and innocent third parties (the robbery offence). We take into account that the Appellant has lived in the UK for 25 years. We also take into account that he has spent many of those years in prison for various offences. We have looked at the time that has elapsed since the last offence was committed (March 2011) and we have looked at the Appellant’s conduct since the offence. He has been in prison since then.

78. We give him full credit for his guilty pleas, his efforts to reduce his methadone whilst in prison and his efforts to stay drugs-free. We are concerned about his refusal of a drugs test referred to above. We were also concerned at his ongoing insistence that blame was to be attached to third parties for his offending behaviour.

79. We give the Appellant credit for the courses that he has taken in prison and the efforts that he is making to turn his life around. But he has not been able to satisfy us that he has reached the stage where on his release from prison, it is more probable than not that he will be able to live a stable existence, avoiding criminal behaviour.

80. We have taken into account the solidity of social, cultural and family ties with the UK and with the US. The Appellant made it clear in his evidence that he now wishes to distance himself from his previous acquaintances both inside and outside prison because most of his acquaintances were involved with drugs. That is commendable. He did not speak of any close friendships with people who he would wish to remain friends with. His parents and his brother live here. They can continue to provide him with emotional support and they are in any event, unable to provide him with practical or financial support whether he lives in the UK or in the US.

81. The Appellant gave no account of any cultural interests in the UK. He has worked in the UK as a window fitter, a roofer and a builder, all of which are skills that he could put to good use in the US.

82. Life will be a challenge for the Appellant when he comes out of prison whether he is in the UK or in the US. In the case of Maslov the court expressed the view that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile. That is not the case here.

83. The Appellant is in good health despite his drug use. We had no evidence to the contrary except the psychiatric report. We had concerns about this report as expressed above. We considered Dr Isherwood’s conclusion as to the increased risk of self-harm to be weak and unsubstantiated. Dr Isherwood is very careful not to quantify the risk of self-harm if the Appellant were to be returned and we are not satisfied that a return to the US of this particular Appellant would lead to an enhanced risk of self-harm. An increased level of risk was observed by Dr Isherwood at a time when the Appellant’s parents had withdrawn their support for the Appellant in a desperate attempt to force him to deal with his addiction and the Appellant’s then partner ended their relationship. This all took place when he was in prison and trying to reduce his drug dependency. We do not accept that there is evidence of any serious attempt at self harm. The Appellant has made great progress in reducing his drug dependency. The Appellant’s father sees a new maturity in the Appellant and we are of the view that the deportation will not measurably increase the risk of self harm for this Appellant. We note that Dr Isherwood considers that it is possible that a move will lead to a depressive illness but we are not satisfied that it is more likely than not that it will lead to such an illness as the Appellant has little or no history of depressive episodes. Psychological and psychiatric support will be available to this Appellant in the US, albeit at a cost.

84. On the evidence before us we do not accept that there are exceptional circumstances in this case such that the Secretary of State should have exercised her discretion in the Appellant’s favour.

85. We do accept that the Appellant has an established private life in the UK. But his private life is not strong because of his offending behaviour and his drug addiction. He does not have strong ties in the community. He does not have strong friendships and he wishes to avoid many of his friends due to their involvement with drugs. He has a poor recent history of unemployment although it is clear that he was in employment when he was younger.

86. The Appellant argues that he is dependent upon his family such that he has family life with his parents and he also argues that he has family life with his children. We are not satisfied that he is dependent on his parents or his brother or other family members in the UK such that family life exists between them for the purposes of Article 8. The Appellant can continue his contact with his family in the UK by telephone, Skype and e-mail and in time by visits once he gets established.

87. He has had no contact with his son Tyler or his daughter Tian for three years now. Family life does exist between them and the Appellant because he is their father. But the family life is extremely limited. In relation to Oliver, contact has recently resumed after a break of over a year. Oliver is still a very young child. We are not satisfied that the family relationship between Oliver and his father is currently a strong one although we accept that he wishes it to be so.

88. The Appellant argues that it is in the best interests of Oliver and indeed his other two children that he should be allowed to remain in the UK to take up any opportunities to have contact with them. We must consider their best interests as a primary consideration. We do not accept that their best interests are affected by the deportation of the Appellant. The Appellant has already disturbed stable living arrangements for Olli. His mother describes the improvement in Olli’s wellbeing within that environment in several of the letters that were provided. Now the Appellant seeks to disturb that and suggests that the relationship between him and LT may resume leading to her abandoning her current relationship and the stability it offers her and Oliver. Whilst the Appellant and LT may have feelings for each other, the Appellant should certainly not be seeking to disturb those arrangements until such time as he has shown considerable and prolonged stability in his own life.

89. There is nothing to stop the Appellant from continuing to contact Oliver by Skype, e-mail, photographs and written communications so that he can slowly and steadily build a relationship with Oliver. Oliver is only 2 years and 9 months of age. He had no contact with the Appellant at all for over a year. He witnessed the Appellant’s violent assault on his mother when he was under a year old. Whilst it is to be hoped that the Appellant will be able to get his life together so that he can provide a realistic opportunity of establishing a good father-son relationship with Oliver, he is a long way from that point at the present time. We are not satisfied that it is necessary for the Appellant to be in the UK in order to do the work that is necessary to get some stability in his life such that he can build relationships with his children. If he succeeds then there is no reason we can see why the children should not be able to visit him in the US.

90. Following the guidance in the case of Razgar v SSHD [2004] UKHL 27, we are satisfied that Article 8 is engaged in respect of the Appellant’s private life and the limited family life that he has at present with his children. We are satisfied that this decision is in accordance with the law because the Secretary of State is obliged by the 2007 Act to make a deportation order given the length of the Appellant’s sentence. Given that the Appellant cannot show that he meets the requirements of the Immigration Rules, the Rules state that the Appellant must show exceptional circumstances to avoid deportation. We are not satisfied that exceptional circumstances exist in this case. We have looked carefully at the proportionality exercise looking at the Appellant’s personal history and in particular the fact that he has spent the vast majority of his life in the UK. We have looked at the potential impact on the Appellant of a move to the US.

91. Looking at the balancing exercise to be carried out in this case, we are satisfied on the evidence before us, that the deportation of the Appellant is necessary in order to ensure public safety and the prevention of crime. It is to be hoped that this is a turning point in the Appellant’s life and that he will not relapse into drug taking and criminal behaviour. But he is a long way from showing that he can maintain a drug free lifestyle once his is in the community.

92. We are satisfied that this decision is justified on the facts as a whole. We are satisfied that the impact upon the Appellant’s protected rights and the protected rights of his children have been properly balanced out in this case.

93. We are satisfied on the evidence before us that this decision is a proportionate one and there is no breach of Article 8 in this case in respect of the protected rights of the Appellant, his children, potential partner or his parents. Anonymity was not requested in this case and we do not consider it either necessary or appropriate.”

33. The appellant applied for permission to appeal. The grounds of appeal first stating that at paragraph 90 of the determination the Tribunal had been wrong to state that the appellant should show exceptional circumstances to avoid deportation. The grounds referred to the decision of the House of Lords in Huang.

34. They argued moreover that the Tribunal was wrong to state that the guidance in Maslov did not apply – what was relevant was that the appellant had been lawfully settled and had spent a major part of his childhood in Britain and therefore it was stated that he met the Maslov condition precedent. The grounds argued that the Tribunal had been wrong to state that the appellant’s private life was not strong because of his offending behaviour and his drug addiction, stating that the appellant was a “de facto British man” and that the concept of private life should be widely drawn.

35. They stated that the Tribunal had erred in their approach to “A’s ‘solidity of social, cultural and family ties’” and that they were wrong to find that his family life rights would not be breached on deportation asserting that there was family life between appellant and his third son and that the Tribunal had accepted the appellant’s intention to develop that relationship. They further added there was no evidence the appellant could access US drug prevention agencies or housing estates and there was evidence of the required close support from drug prevention agencies in Britain on his release and supported accommodation.

36. Permission to appeal was granted by Designated Judge of the First-tier Tribunal Digney. He stated:-

“The first point made in the grounds of appeal is that the panel misdirected itself in law in concluding that there must be exceptional circumstances to avoid deportation in a case such as this. I conclude that that is arguably an error of law and it is also arguable that the panel did not properly distinguish the case as it fell to be dealt with under the new rules and under article 8 of the ECHR.

It is debateable that the other points raised identify arguable points of law as opposed to disagreements as to what weight should be given to certain matters, but the remaining grounds may also be argued.”

37. At the hearing of the appeal before me Mr Gilbert first stated that an error in that the Tribunal had not looked at the new Rules. He did, however, not consider that that was material. He then emphasised that in paragraph 90 of the determination the Tribunal had referred to the issue of exceptionality when considering the rights of the appellant under the Convention and said that that was clearly wrong.

38. Thereafter, he turned to the determination of the Tribunal in Ogundimu (Article 8 – new Rules) Nigeria [2013] UKUT 00060 (IAC) where at paragraphs 35 and 36 of the determination the Tribunal, having referred to the judgment in Maslov had stated that:-

“It was thus in June 2010 trite law that in cases of the present kind, where there has been long residence since childhood, the private life claim will succeed unless ‘there are very serious reasons… to justify expulsion’.”

That remains the case: see for example MW (Democratic Republic of Congo) v SSHD [2011] EWCA Civ 1240, Sullivan LJ at paragraph 75 and the reported decision of the Upper Tribunal in Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 00046 (IAC).”

The Tribunal had stated that the First-tier Tribunal in that case had “singularly failed to direct itself in accordance with Maslov”.

39. Mr Gilbert went on to argue that the Tribunal had not shown that the very serious reasons which must be shown had existed in this case. He emphasised that the appellant had come to Britain as a child and had lived practically all his life in Britain. He stated that he had in fact, apart from a short period as a baby and toddler, lived in America only between the ages of eight and ten – between the ages of 3 and 8 he had been in Germany as his father was in the US army.

40. He claimed that the Tribunal had placed insufficient weight on the strength of the appellant’s private life and referred to the judgment of the Court of Appeal in JO (Uganda) [2010] EWCA Civ 10 where at paragraph 20 it was stated:-

“As to private life, it is emphasised at paragraph 59 of the Üner judgment that settled migrants will have ties with the community. They constitute part of the concept of private life, which must therefore be considered even if the applicant has no family life in the host country. The importance of this can be seen from the discussion, at paragraph 55 of the same judgment, of the assembly’s recommendation and the legislation enacted in some state the effect that long-term immigrants cannot be expelled on the basis of their criminal records. The Strasbourg court rejected the concept of absolute protection, recognising that there is a balance to be struck under article 8; but the court has emphasised that it is a balance to be struck with a proper appreciation of the special situation of those who have been in the host country since childhood.”

41. He stated that the test of the strength of the appellant’s private life had been wrongly applied by the Tribunal because they had emphasised ties with America. The most important issue as set out in Ogundimu was the length of time the appellant had lived in Britain. He accepted that the appellant had been in prison for just under ten years out of the 25 years he had lived in Britain (120 months in total) but stated that by reason of long residence in Britain the appellant should be entitled to remain on the basis that his removal would be disproportionate.

42. He emphasised the lack of ties which the appellant had with America stating that the “cultural crossover” factors on which the Tribunal had relied were of little moment given the length of time the appellant had lived in Britain. He relied further on paragraph 123 of the Tribunal’s determination in Ogundimu which stated that:

“The natural and ordinary meaning of the word ‘ties’ imports, we think, a concept involving something more than merely remote and abstract links to the country of proposed deportation or removal. It involves there being a continued connection to life in that country; something that ties a claimant to his or her country of origin. If this were not the case then it would appear that a person’s nationality of the country of proposed deportation could of itself lead to a failure to meet the requirements of the rule. This would render the application of the rule, given the context within which it operates, entirely meaningless.”

43. He emphasised the appellant’s lack of connections with America. Moreover he emphasised that the appellant’s parents would be unable to give him fundamental support there. Having referred to the appellant’s wish to develop his relationship with his son he argued that to do so by e-mail was insufficient.

44. In reply Mr Hayes stated that the Tribunal had properly considered all relevant factors and made no errors of law. They had applied the Maslov criteria and had dealt with the issue of the necessity of preventing crime. It was open to them to conclude that the relationship between the appellant and his son could be maintained from America. He emphasised that the decision in Maslov did not say the length of residence in a country outweighed any other factors.

45. He emphasised that when the Tribunal had referred to the issue of exceptionality they were considering the issue of the new Rules rather than considering exceptionality a relevant test when assessing proportionality of removal.

46. In reply Mr Gilbert again emphasised the criteria set out in Maslov and argued that the criteria set out therein were rather more than a list of factors to be considered but should be considered as a checklist to be gone through. It was clear that very serious reasons were required to conclude that a longstanding migrant who was legally resident here should be removed. He referred to the judgment of the Court of Appeal in MW (Democratic Republic of Congo) [2011] EWCA Civ 1240 which emphasised that very serious reasons were required.

47. He also stated that it was important to consider what ties the appellant would have with America and as regards to his ties with Britain the length of time he had remained here was relevant. The issues raised by the Tribunal of “cultural crossover” were not sufficient to warrant the removal of the appellant.

Discussion

48. I considered there was no material error of law in the determination of the Tribunal. The reality is that in this lengthy and considered determination the Tribunal made clear findings of fact and reached conclusions which were entirely open to them. They referred to the appellant’s vast number of convictions which included crimes of violence. They were correct to place weight on those offences. They considered the judge’s sentencing remarks and when they considered the appellant’s family ties in Britain reached conclusions relating to his relationships with his children which were again open to them. They found that the appellant had had no relationships with his two eldest children since 2009 and that relationships with them could not be contemplated for some very considerable time.

49. They considered the appellant’s relationship with his third child but were correct to categorise the appellant’s relationship with that child’s mother as manipulative and to place weight on the importance of that child having a stable relationship with his mother and indeed they refer to the fact that his mother now has a new partner and planned to marry this year. They were correct to state that the basis of a relationship with that child of nine visits in the last three months when for a long period before that the appellant had not seen his child was not a basis on which a further relationship could develop and that in any event the appellant would be able to contact that child by e-mail and Skype at a later stage.

50. They noted the appellant’s relationships with his parents and the fact that they would not be able to offer him accommodation let alone financial support.

51. They noted the pre-sentence report which assessed the appellant as posing a high risk of serious harm to the public “including partners” but also took into account that the appellant had reduced his methadone prescription from 45 mls to 16 mls. They noted the courses which he had undertaken. They also considered the report from Dr Sarah Isherwood regarding the appellant’s own mental health. I consider that their findings of fact were both fair and balanced.

52. As regards the appellant’s connections with America they were correct to state that there was a cultural crossover. Mr Gilbert’s point was that in doing so they had placed insufficient weight on the more meaningful factors such as what connections the appellant might have with relationships there let alone the length of time that he had spent in America is valid only insofar as should the appellant have had relatives in America then that would be a factor which should have been taken into account in the proportionality exercise and would have weighed in the balance against the appellant.

53. I have considered the principal criticism made by Mr Gilbert in his submissions which was that the Tribunal had not properly taken into account the length of period which the appellant had spent in Britain having come here as a child at the age of 10 and that they had not specifically stated that there were serious reasons justifying the appellant’s deportation. In effect he was stating that the Tribunal had not properly considered the criteria set out in the European Court of Human Rights judgment in Maslov. I would first emphasise that the Tribunal did set out at some length details of the appellant’s offences and the length of time during the last twenty five years which he had spent in prison as well as referring to the judge’s sentencing remarks. I consider that it is obvious that that the Tribunal clearly had in mind the very serious reasons why it would be appropriate to deport this appellant. It simply cannot be said that when an appellant has committed 37 convictions between 1993 and 2002, has committed acts of violence and received one sentence for four years and other sentences for lesser periods of time that there are not serious reasons why the appellant should not be deported. The reality is that the Tribunal did address the issues raised in Maslov to which they refer in paragraphs 77 onwards. It is clear from what they write in those paragraphs that they have taken into account the relevant factors which are set out in paragraph 68 of the judgment in Maslov which refers back to the judgment in Boultif [1997] VI82264. It is clear they took into account the nature and seriousness of the offence committed by the appellant, the length of time he had been in Britain and the time which elapsed since the last offence had been committed, the appellant’s nationality, his family situation, the position of the appellant’s relationships with his children and their age.

54. In paragraph 71 of the judgment in Maslov the European Court of Human Rights referred to a situation where the person to be expelled is a young adult. The reality is, of course, that this appellant is not a young adult. They were quite correct in any event to point in paragraph 82 that:-

“In the case of Maslov the court expressed the view that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measures as a juvenile. That is not the case here.”

55. Mr Gilbert argued that there they were suggesting that it was not the case in this appeal that very serious reasons were required to justify expulsion. That is wrong. What they were stating was that it was not the case that the appellant was a juvenile.

56. They did take into account the nature and seriousness of the offence committed by the applicant and the length of his stay in Britain and the time elapsed since the offence had been committed and the solidity of the appellant’s social, cultural and family ties of this country and the country of destination.

57. The only factor on which the appellant could rely was his long residence but, applying, as indeed the Tribunal did the factors set out in the judgment of the European Court of Human Rights in Maslov which were repeated in the determination of the Tribunal in Ogundimu, the Tribunal were entitled to conclude that the deportation of the appellant was proportionate notwithstanding the length of time he had lived in Britain.

58. While it is the case that they may not have used the, in terms, the wording of Maslov which refers to various serious reasons being required to justify expulsion, that is clearly obvious from the facts of this case.

59. Even if I were to find that they had made an error of law in not using those terms I could not consider that that was a material error given the appellant’s serious criminality over a long period of time.

60. I consider that their findings of fact properly deal with all relevant Maslov criteria.

61. At the beginning of their determination the Tribunal refer to the recent changes to the Rules relating to the rights of an appellant under Article 8 of the ECHR. They refer, in particular, to paragraphs 398(b), 399 and 399(a) of the Rules. It was accepted however that these do not apply in this case given the length of time which the appellant has spent in prison here. However, what is relevant is that those Rules refer to the issue of exceptionality. Clearly, where the Tribunal writes in paragraph 90 that the appellant cannot show that he meets the requirements of the Rules – the Rules stating that the appellant must show exceptional circumstances to avoid deportation and they are not satisfied exceptional circumstances exist in this case, what they are saying is that the appellant cannot meet the requirements of the Rules because he does not meet the test of exceptionality therein.

62. While that comment is made after reference is made to the judgment of the Court of Appeal in Razgar and it might well have been preferable had the Tribunal referred to the provisions within the Rules relating to an application to remain on private life separately, in a different paragraph, the reality is that that provision must refer to the decision under the Rules. Of course, one of the questions that should be answered when considering the structured approach set out in the judgment in Razgar is whether or not the decision to remove is correct in law and that for it not to be correct in law then exceptionality would be required under the terms of the new Rules. The reality is that what the Tribunal is doing is applying the appropriate structured approach to the issues to the consideration of the rights of the appellant under the Convention.

63. They have set out in detail their findings of fact which have clearly been reached in a balanced and thorough manner. They find that the appellant’s private life and his limited family life would be infringed by his removal and the then go on to say that they are satisfied the decision is in accordance with the law before considering the issue of proportionality. Given their clear findings of fact their conclusions regarding the proportionality of removal were clearly open to them.

64. I would add that in considering the issue of cultural ties that is, of course, an issue which arises when the terms of paragraph 399(a) of the Immigration Rules are considered in terms. It is, however, a factor which is relevant under any assessment of proportionality and the Tribunal did consider those ties within that context.

65. I would add that where in paragraph 91 the Tribunal referred to the deportation of the appellant being necessary in order to ensure the public safety in the prevention of crime, they were entitled to do so. It may well be that they could have expanded on that assertion, given the importance of the removal of a criminal from Britain which has been emphasised in N (Kenya), Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT as well as DS (India) EWCA Civ 544 [2009] and A D Lee EWCA [2011] Civ 348. However, the fact that the Tribunal did not refer to those judgments is not material given that the conclusion which they reached was correct.

66 . I therefore find that there is no material error of law in the determination of the Tribunal and their decision dismissing this appeal on human rights grounds shall stand.

Signed Date

Upper Tribunal Judge McGeachy