The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00873/2013


Heard at
Determination Promulgated
On 25 November 2013
On 16 December 2013




mr george montague



For the Appellant: Mr S Muquit, Counsel instructed by Chris & Co Solicitors
For the Respondent: Mr t Wilding, Home Office Presenting Officer


1. The appellant is a citizen of Jamaica, born on 20 August 1989.

2. The respondent on 11 April 2013 made a deportation order. The appellant seeks to appeal against that decision, which appeal came before First-tier Tribunal Judge Cameron and Mrs J Holt (Non-Legal Member) on 2 September 2013. In a detailed determination the panel considered the circumstances of the appellant's criminal record together with his own personal situation and family circumstances. The appeal was dismissed in all respects.

3. Grounds of appeal were submitted against that decision on the basis that the First-tier Tribunal made an error in not concluding that there were exceptional circumstances which made the activation of the deportation order disproportionate. It was argued that the Tribunal had failed to consider both the personal and private circumstances of the appellant and his family and the low risk of his offending.

4. Permission to appeal was granted on the basis that it was arguable that the assessments at paragraphs 126 to 130 of the determination failed to apply Masih in the light of the findings of fact by the panel.

5. Thus, the matter comes before me in pursuance of that grant of permission.

6. The appellant arrived in the United Kingdom on 18 June 1994 with his mother and older sister and was granted indefinite leave to remain on arrival. He had therefore been in the United Kingdom since he was 4 years old and is now some 24 to 25 years of age, having spent the majority of his life in the United Kingdom. It is common ground that the appellant's main family grouping is in the United Kingdom and that he has very little, if any contact with Jamaica. He himself has not been back to Jamaica since he first arrived in the United Kingdom.

7. The appellant demonstrated a pattern of offending as a juvenile, particularly with his involvement in drugs. Indeed, he was sentenced in April 2008 at the Inner London Crown Court for a further offence of possession of drugs, with intent to supply, and given twelve months in a young offenders' institute.

8. Those matters led to the respondent instituting deportation proceedings against him. That led to an appeal hearing before Immigration Judge Freestone and Mr Richardson JP (Non-Legal Member) on 15 July 2008.

9. The Tribunal on that occasion considered the applicant's history of offending against his personal circumstances and private life. It stated in particular at paragraph 33 of that determination that at the time of that hearing the applicant was 19 years old, having been in the United Kingdom for fourteen years. His lack of connection with Jamaica was also noted. It was considered, therefore, by the Tribunal on that occasion that his personal circumstances outweighed the presumption of his deportation. Thus, the court was satisfied that that was an exceptional case such as to allow the appeal.

10. Unfortunately that was not the end of the matter because the appellant then went on to re-offend notwithstanding the warning that had been given to him and he committed further offences, including a particularly serious robbery for which he received 64 months' imprisonment. This was the offence which triggered the automatic deportation provisions under statute and brings him before the Tribunal once again.

11. Mr Muquit, who represents the appellant, invited my attention to his detailed skeleton argument. He relied particularly on MF (Nigeria) v SSHD [2013] EWCA Civ 1192. He submitted that even within the Immigration Rules there was a two-stage process, namely to determine firstly whether or not the appellant's offending behaviour was such as to bring him within the deportation provisions. It is also important however to move to a second stage namely to consider other circumstances specific to the appellant and to his family which may be so compelling as to amount to exceptional circumstances not to implement the deportation.

12. He seeks to contend that the legislation has made it entirely clear that the public interest in deportation may be outweighed by other factors and that they should be considered as having importance in the overall assessment of proportionality.

13. He submits that in this particular case there are many such factors that can be held to the favour of the appellant, not least the findings of Judge Freestone that there were exceptional circumstances to prevent deportation. Since that time there is the closer family group of the appellant as evidenced by various members of his family giving evidence. He has spent most of his time in the United Kingdom and has no contact with Jamaica. He has been addressing his offending behaviour and there are good reports as to his response to various initiatives in custody.

14. He submits that although the appellant's offending behaviour, establishes under the statute the general proposition that the public interest in his deportation will be satisfied, that is predicated upon the basis that there are no other compelling circumstances which would make that disproportionate. Mr Muquit seeks to argue that the judge, in considering those factors, has failed to recognise that they are factors capable of being compelling in their own right. He submits that what the Tribunal did in the assessment of the matter was to allow an overlap between the offending and the personal circumstances. The panel did not give full consideration to the personal private circumstances of the appellant nor to remind itself that such matters in their own right may be compelling enough so as to defeat the operation of the statute.

15. Mr Wilding, on behalf of the respondent, also invited my attention to two authorities, the first being that of SS (Nigeria) v SHHD [2013] EWCA Civ 550This is a helpful case when considering the importance attached to the deportation of foreign criminals by the legislature as reflecting a public interest. The operation of the statute and indeed of the Immigration Rules are not such as to deprive an individual from all remedy. The considerations in relation to Article 8 remain as to the balance between public interest and the private rights, the legislation indicating to the decision-maker where the legislature considers that the balance should lie.

16. Set out in paragraph 46 of that decision:

"Thus while the authorities demonstrate that there is no rule of exceptionality; they also clearly show that the more pressing the public interest in removal or deportation, the stronger must be the claim under Article 8 if it is to prevail. This antithesis, in my judgment, catches in the present context the essence of the proportionality test required by Article 8(2)."

17. Mr Wilding drew my attention to the summary at paragraph 47 of that judgment and also paragraph 55.

18. He also draws my attention to MF (Nigeria), in particular to paragraph 8 thereof, which sets out the details of paragraphs 398 and 399 of the Immigration Rules.

19. Particularly he relies upon the wording of paragraph 398(c) which provides:-

"(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors."
20. Mr Wilding reminds me that the appellant was convicted of an offence which carried imprisonment of more than four years. He asked me to find that what were exceptional circumstances or compelling circumstances should be considered looking at the matter as a whole.

21. He invited my attention to paragraph 14 of MF, which indicated that "exceptional means circumstances in which deportation would result in unjustifiably harsh consequences for the individual or their family such that deportation would not be proportionate". That would be only rarely he submits.

22. My attention was also drawn to the comments the Tribunal set out in paragraph 38 which reads as follows:-

"38. The first point to make is that para 398 expressly contemplates a weighing of 'other factors' against the public interest in the deportation of foreign criminals. It has long been recognised by the ECtHR that states are entitled to decide that there is generally a compelling public interest in deporting foreign criminals. Article 8 requires a decision-maker to weigh the factors which favour deportation against those which do not. This is inherent in the proportionality test that, according to the Strasbourg jurisprudence, is demanded by Article 8. The central question is whether the use the phrase 'exceptional circumstances' means that the weighing exercise contemplated by the new Rules is to be carried out compatibly with the Convention."

23. Mr Wilding submits that it is not a requirement that the Tribunal separate private and family considerations from other considerations. What is needed is to consider all factors in favour and not in favour of the appellant to decide where in the nature of proportionality the balance is to be struck. In this connection my attention was drawn to paragraph 50 of MF which says as follows:-

"50. Although we have disagreed with the UT on the question whether the new Rules provide a complete code, the differences between our approach and theirs is one of form and not substance. They conducted a meticulous assessment of the factors weighing in favour of deportation and those weighing against. As they said, the factors in favour of deportation were substantial. They gave sufficient weight to the serious view taken by the Secretary of State of MF's criminality and his poor immigration history. On the other hand, they attached considerable importance to the interests of F. The decision was finely balanced and a contrary decision would have been difficult for the appellant to challenge. But they did not take into account any irrelevant factors and they did not fail to take into account any relevant factors. In these circumstances, the UT were entitled to strike the balance in favour of MF. We can find no basis for interfering with their decision."

24. Mr Wilding invited me to find that, contrary to the contentions made on behalf of the appellant, the determination of the Tribunal was a very thorough and careful one looking at all factors both for and against the appellant.

25. The Tribunal looked at the nature of the appellant's offending and to the extent to which a repetition of that offending was or was not likely. It considered the various reports that had been prepared on the appellant from those in custody. It considered particularly how he had responded to supervision. It considered the review plan and other relevant comments that were made by those assessing the appellant to determine his likely future behaviour. An up-to-date NOMS Report dated March 2013 was also considered in addition to the OASys Report.

26. The Tribunal noted the determination of Judge Freestone and of the lifestyle of the appellant as was set out in that determination. It recognised at paragraph 103 in particular that the appellant had come to the UK when he was 4 and had been granted indefinite leave to remain. It also recognised that the appellant did not have any close relatives in Jamaica and had no connection with that country. It noted the findings of Judge Freestone.

27. At paragraph 11 the issue as to whether or not the appellant has matured since 2008 was considered, particularly in relation to his potential drug-taking.

28. It is to be noted however that the judgment of Judge Freestone predated the index offence for which the appellant faces deportation. The Tribunal looked at the appellant's family and private life. It recognised that the appellant's removal would interfere with his private life and relationship with family and friends. At paragraph 129 the Tribunal yet again reminded itself of the fact that he had spent most of his life in the United Kingdom and had little ties with Jamaica.

29. Mr Wilding submits that following the decision in MF the Tribunal looked at all relevant factors and came to the conclusions they were entitled to that there was nothing compelling to overturn deportation.

30. It is to be noted that in the submissions made there is heavy reliance by the appellant upon the decision in Masih (deportation - public interest - basic principles - Pakistan) [2012] UKUT 46. Reliance is placed particularly upon the headnote (f) in considering the relevant factors on "private and family life" under Article 8 of the Human Rights Convention, "for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in this country, very serious reasons are required to justify expulsion".

31. Mr Muquit in reply relied heavily upon the findings of Judge Freestone that there were compelling reasons why the appellant should not be deported in 2008. He submits that those reasons continue and that accordingly a number of matters should have been afforded greater weight in the proportionality exercise as conducted by the Tribunal. Failure to give adequate consideration to such powerful and compelling factors was, he submits an error of law in the circumstances.

32. It is to be noted that in its determination the Tribunal sets out the relevant case law to this matter. That includes the case of Maslov v Austria ECHR 23 June 2008 and Masih (deportation - public interest - basic principles - Pakistan) [2012] UKUT 00046 (IAC).
33. Maslov sets out a number of factors which should be considered in any proportionality assessment. Those factors include:-
- the nature and seriousness of the offence;
- the length of the appellant's stay in the country;
- the time elapsed since the offence was committed and the appellant's conduct during that period;
- the appellant's family situation;
- the solidarity of social, cultural and family ties with the host country and with the country of destination.
34. It is clear that when the appellant came before Immigration Judge Freestone and Mr Richardson on 15 July 2008 the Tribunal had such matters very much in mind. Generally speaking most of the offending behaviour had been committed by the appellant as a juvenile. After his arrest in October 2007 there had been no further offending for the six months that he had remained on bail. He was assessed at that time as representing a medium risk to the public and community. The appellant was 19 years of age and had been in the United Kingdom with his family for most of his life were matters which weighed heavily with the Tribunal resulting in his appeal being allowed.
35. That having been said ,however, matters then moved on. The appellant failed to heed the chance that had been provided to him and went on to offend in an even more serious manner. Maslov itself was more focused towards offending as a juvenile whereas for the target offence of this matter the appellant was an adult. The serious nature of the offending is considered by the Tribunal and indeed the judgment of the sentencing judge is set out in paragraph 82 of the determination. The appellant used a weapon in an aggravating situation, namely that he had attacked the victim with more intensive purposes in his own home.
36. It seems to me therefore that although the decision of Judge Freestone is a starting position and properly so under the provisions of Devaseelan, the findings made by that judge do not bind any subsequent Tribunal. Matters had moved on both in terms of the appellant's age and also his offending. Robbery is a particularly serious offence as was reflected by the length of sentence.
37. Although the element of risk is clearly a relevant factor to be borne in mind, it was the finding of the Tribunal that the appellant continued to present some risk to society. In many ways that analysis has been overtaken by the provisions of the statutory framework. By virtue of paragraph 398(a) the deportation of persons from the United Kingdom is deemed conducive to the public good when they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least four years.
38. The stronger the factors in support of the public interest so the stronger needs to be the countervailing factors, said to be compelling factors making deportation disproportionate.
39. It is clear from the determination, and I so find, that the Tribunal bore in mind all those factors which were to the advantage of the appellant, in particular his longstanding connection with the United Kingdom, his family contacts in the United Kingdom and the lack of ties in Jamaica. It seems to me that fundamental to the submissions made on behalf of the appellant by Mr Muquit is the suggestion that inadequate weight was given by the Tribunal to such factors.
40. Time had, however, moved on from 2008 to 2013. The appellant was older and seemingly had not modified his criminal behaviour. It would seem his criminality had worsened rather than improved.
41. The case of Masih is relied upon. It seems to me that that is a case which sets out the general principles rather than being compelling in its facts in favour of the appellant. It sets out that for a settled migrant, who has lawfully spent all or the major part of his life in the United Kingdom, very serious reasons are required to justify expulsion More so when the person concerned committed the relevant offences as a juvenile.
42. In this case the appellant was not a juvenile when he committed the offences. The was indeed a serious offence in commonsense and one deemed so by the legislature.
43. A number of factors are helpfully set out in Masih which are relevant to proportionality.
(a) in the case of automatic deportation full account must be taken of the strong public interest in removing foreign citizens convicted of serious offences which lies not only in the prevention of further offences on the part of the individual concerned, but in deterring others from committing them in the first place.
It is clear that the Tribunal bore those matters in mind.
(b) Deportation of foreign criminals expresses society's condemnation of serious criminal activity and promotes public confidence in the treatment of foreign citizens who have committed them.
(c) The starting point for assessing the facts of the offence of which an individual has been committed and their effect on others and on the public as a whole, must be the view taken by the sentencing judge. It is clear that the Tribunal focused upon that matter in its determination.
(d) The appeal has to be dealt with on the basis of the situation at the date of the hearing. The Tribunal in this case heard from the family members of the appellant and the appellant himself.
(e) Full account should also be taken of any developments in the sentence as passed, for examples the result of any disciplinary adjudications in prison or detention, or any OASys or licensed report. The Tribunal dealt at length with the various reports that had been prepared.
(f) In considering the relevant facts on "private and family life" under Article 8 of the European Convention on Human Rights for a settled migrant who has lawfully spent all or the major part of his childhood and youth in (this) country very serious reasons are required to justify expulsion.
44. It is clear to me that in the assessment of the matter the Tribunal has carefully considered all that can be said on behalf of the appellant and balanced that with the nature of his offending and the risk which he poses to society. Significantly at paragraph 129 the Tribunal notes that the appellant was aware from the previous hearing and the warning that he had been given ,that if he re-offended he was at risk of being removed. He was an appellant who was given one chance and who nevertheless proceeded to offend in a very serious way indeed.
45. Mr Muquit submits that the Tribunal erred in not paying greater regard to the interests of the appellant's family as well as to the appellant himself. I note however that the evidence of Mr Cardavan Serinash, the appellant's brother, was set out in detail as was the evidence from his mother, Georgia Montague. His sister, Virginia Montague, also gave evidence. It was recognised by the Tribunal at paragraph 66 that the family have been supportive of the appellant. It noted in paragraph 102 that there were no more than normal emotional ties between the appellant's mother and her sibling. Again that was repeated at paragraph 117. He accepted that there was substantial private life in the United Kingdom at paragraph 118.
46. It is difficult, without more, to see what further could have been considered in relation to the applicant's private and family life as set out by his mother and siblings. They spoke as to his increasing maturity and the issue of the appellant's drug-taking was considered particularly in paragraph 111.
47. The offence for which the appellant was convicted was a particularly violent and nasty offence as indicated by the length of sentence. It is clearly of importance for the public to be protected from such behaviour as indeed is reflected in the legislation. He had the help of his family after the previous hearing but had not heeded the advice. The Tribunal were not persuaded that the appellant was not at least a moderate or low risk to the public of re-offending. The appellant had been given opportunities to reform his behaviour and to remain in the United Kingdom. He had not chosen to do so.
48. In the circumstances I can see no reason why the conclusion that it was proportionate to expect him to return to Jamaica, albeit to a country that he had a connection with, was proportionate in all the circumstances. That was a finding properly open to the Tribunal, the Tribunal having properly considered as I so find, all factors that could be weighed both for and against the appellant. That was precisely the way in which it should come to its conclusion.
49. I find the findings were therefore properly open to the Tribunal. No error of law is disclosed.
50. In the circumstances the appellant's appeal is dismissed. The findings of the Tribunal shall stand, namely that the appeal under the Immigration Rules is dismissed, the appeal against the making of the deportation order is dismissed and that in relation to Article 8 of the ECHR is also dismissed.

Signed Date

Upper Tribunal Judge King TD