Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03322/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 February 2016
On 7 October 2016

Before

THE HONOURABLE MR JUSTICE COLLINS
DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Secretary of State for the Home Department
Appellant
and

ROLAND PETERS
(anonymity direction NOT MADE)
Respondent

Representation:
For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Mr A Sesay, Solicitor, instructed by Duncan Lewis & Co Solicitors

DECISION AND REASONS

1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Adio given on 11 November 2015 whereby he allowed the respondent's appeal against the decision of the Secretary of State that he should be deported following his conviction of an offence for which he was sentenced to two and a half years' imprisonment so that by virtue of Section 32(5) of the 2007 Act deportation was required unless there were reasons which are set out in the material Rules why such deportation should in an individual case not take place.

2. The respondent was born in November 1958 and so is now some 57 years old. At the time the decision was made he was just 56. He came to this country in February 1974 to join his parents, they being Dominican. He was granted indefinite leave to remain in this country. Unfortunately he has a very poor criminal record. It is set out in the decision by the Secretary of State and it involves eleven convictions for 21 offences.

3. It started in 1977 taking motor vehicles without consent and then in 1980 we have burglary and theft and a sentence which was community service of 80 hours. There was obstruction of police in 1982, handling stolen goods also in 1982 when he received a suspended sentence of two years but far more seriously in July 1983 he was convicted of having a firearm with intent to commit an indictable offence, robbery and conspiracy to rob and breach of the suspended sentence and he was then sentenced to a total of six years' imprisonment. He could of course then have been the subject of deportation but it was not decided that he should be deported. Of course one has to bear in mind that the automatic removal provisions were not then in force.

4. Following his release he continued to commit offences. He was convicted of criminal damage in 1989, he received conditional discharges and there was an offence of driving whilst disqualified in the same year. He then gets two years' imprisonment for violent disorder in November 2003. That again could have resulted in a deportation decision but did not. Then he receives in 2011 eighteen months for possessing cannabis with intent to supply and finally, and this is the conviction which triggered the deportation decision, on 24 January 2014 he was convicted of possession of a firearm and sentenced to 30 months' imprisonment.

5. We think it is important to bear in mind what the judge sentencing him said in relation to that because there is a requirement for possession of a firearm to impose a minimum sentence of five years' imprisonment unless there are truly exceptional circumstances in a given case which justify the imposition of a lesser sentence. The weapon in question was an adapted starting pistol. The judge bore in mind the previous firearm offence but that was some 30 years old by then and what the judge said was, so far as material:

"I take account of the fact that you were caught in a situation which was not of your own making. You had no obligation to help the police but you volunteered to help the police when they came to search your premises after your son had been arrested, and you provided when you spoke to the police all the evidence against yourself. I take account of what is said that in the circumstances you felt you couldn't go to the police with this weapon because this would have placed you in danger"

It was not suggested that he had handled the weapon because it was in a bag but he did appreciate, indeed suspect that it was a firearm. However, instead of handing it in he was handing it on to someone else and that meant that it was still a serious matter. It is we think important to take that into account because it goes to the seriousness of the offending in question and the seriousness of the offending and the seriousness overall of his conduct in this country is of importance in considering whether there are proper reasons why in his case deportation should not take place. What has to be considered in this context is paragraph 399A of the Immigration Rules. It follows from paragraph 398(a) which provides:

"Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and

(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months"
and of course it is 398(b) that is material for the purposes of this case.
One then goes to 399A which provides:
"This paragraph applies where paragraph 398 (b) or (c) applies if -
(a) the person has been lawfully resident in the UK for most of his life;
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.
6. Paragraph 399AA is not in issue but what is in issue is whether the judge was correct in deciding that 399(a), (b) and (c) availed the respondent. We say correct because of course the appeal depends upon there being an error of law when the decision was made and the error which is identified by the judge who granted leave was that the judge had not dealt with the public interest in deportation other than superficially, and not explained why the deterrence of offending was not significant, and in all the circumstances it was said to be arguable that the appellant's circumstances did not outweigh the public interest in his deportation and it was said that there was no reason why, even if he had no family and no accommodation in Dominica there were not the very significant obstacles to his integration into Dominica which were required by 399A.
7. The judge's conclusions are found so far as material in paragraphs 37, 38 and 39 of his decision. So far as [37] and [38] are concerned the judge deals there with whether he was socially and culturally integrated into the United Kingdom. He made the point that he lived here for 41 years, he knows no other country and the only occasion that he left this country was in 2008 when he went on a short visit to Dominica in order to attend his father's funeral. The judge made the point that no decision was made to deport following the conviction in 1983 and he approached the matter on the basis that one effectively did not look to that particular sentence in assessing whether there was cultural integration and social integration. He of course came here, attended school for two and a half years here, has received training here and has worked various ways. He has his family here, his children are now grown up and his whole life effectively since he was 16 has been in this country. Social and cultural integration within the meaning of 399A and 399B is not achieved necessarily by the length of residence here because if there has been criminal behaviour to such an extent that shows effectively an entirely anti-social approach to being here and indeed a blatant disregard for fellow citizens that can negate the cultural and social integration so far as 399A and 399B is concerned. That was the approach that was decided by this Tribunal in the Secretary of State for the Home Department v Bosade [2014] UKUT 415 (IAC), a decision by Judge Storey and Judge Dawson. That involved a 29 year old who came to this country when he was 4. He had numerous convictions culminating in a 42 month sentence of imprisonment for robbery. The history of his offending showed repeated robberies and that the Tribunal in Basade decided was a "serious discontinuity in his integration in the UK especially because it shows blatant disregard for fellow citizens".
8. It is as it seems to us essentially a question of fact in any given case whether an individual can be shown, albeit he has committed what may be serious offences, a cultural and social integration. It must be obvious that a line has to be drawn somewhere and it is not every sort of offending which can result in a decision that there is no cultural or social integration however long an individual has been in this country. We have set out the offending by this respondent. It is of course serious and it does show that he has regularly broken the law but the seriousness of his offending is particularly in the two firearms offences and there were clearly a number of mitigating factors to which we have referred in the offence which triggered the decision that he be deported. The other one in 1983 again very serious but committed a long time ago. His other offences, comprise two that perhaps we can regard as serious, in 2003, two years for violent disorder which must have indicated quite a serious violent disorder and possessing cannabis with intent to supply in 2011. Again we have in our papers the judge's observations in relation to that offence. The total amount was just under three kilograms of cannabis for which he was convicted. It is to be noted that he said that he was a cannabis user as part of his lifestyle. That of course was an offence but that was the culture in which he was involved. That certainly is not something in any way in his favour.
9. The question we have to ask ourselves in the circumstances is whether the judge, having looked at the whole of the history, could properly decide that he was socially and culturally integrated notwithstanding the offences. As we have said it is essentially a question of fact. It is important of course to recognise that it is regarded as in the public interest and clearly indeed is in the public interest that those who come here and who commit offences should not, if they are serious offences, generally speaking, be allowed to remain here but as we say it is a question of fact and in our judgment the First-tier Tribunal Judge could not be said to have erred in law in reaching the conclusion that he did.
10. We turn then to the other question under 399A(c) which is whether there would be very significant obstacles to his integration into the country to which he is to be deported, Dominica. The judge found and there is no issue as to these findings of fact that he has no ties in Dominica, he has not been there since he arrived in this country other than the short visit to attend his grandfather's funeral. He has no family or other links to people who he could turn to in Dominica, he has no property there and there is no one there who can in any way assist him. That is not of course in a given case necessarily fatal and we go back to Basade when this issue was considered. The Tribunal there made the point that the adverb "very" had to be taken into account. It was not whether there were significant obstacles but whether those obstacles were very significant that was material. In Basade's case he was 29 and had been here since he was 4 and he had no family connections in the Democratic Republic of the Congo which was the country which was in issue there. The Tribunal decided that it was reasonable to infer that his mother and other relatives here would seek to help him financially, at least until he had had time to find his own feet. There was no physical or mental disability preventing him from developing social and cultural ties in the DRC and he was young, able-bodied and of an adaptable age. Those clearly were highly material findings of fact which persuaded the Tribunal in that case that despite the fact that he had been here since the age of 4 and had no relations in the DRC, there were no very significant obstacles to his being returned there. So far as this respondent is concerned he is now 57, he has no links there, there is no suggestion that there is anyone here who can assist him financially and he will have to find somewhere to live. It is incidentally to be noted that Dominica has been damaged by a hurricane and so there are problems which result from that. As the judge said, he only has an abstract link with Dominica. It seems to us in all the circumstances that the judge was entitled again to decide that he did meet the provisions of 399A(c).
11. We must emphasise that this Tribunal is only able to interfere with a decision of a First-tier Tribunal Judge if persuaded that there was an error of law in the decision that was made. Provided that a factual decision was open to the judge we are not able to intervene. Of course we recognise and we would affirm the importance of protecting the public from those who commit serious offences and the need to remove such offenders but Parliament in approving the Rules has set out the reasons which may apply in deciding whether, in an individual case, notwithstanding that serious offences have been committed, it is appropriate to say that deportation cannot take place and if a First-tier judge decides that those conditions are met, then unless that decision is in some way wrong in law, this Tribunal cannot properly intervene. In those circumstances this appeal must be dismissed.

Notice of Decision

The appeal is dismissed under the Immigration Rules.

No anonymity direction is made.

Signed Date: 25th February 2016

Mr Justice Collins

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 25th February 2016

Mr Justice Collins