Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-000934
HU/03911/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 22 February 2022
On the 03 May 2022

Before

UPPER TRIBUNAL JUDGE CANAVAN
DEPUTY UPPER TRIBUNAL JUDGE LEWIS

Between

RAMADHANI AHMEDI
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the appellant: Ms E. Harris, instructed by David Benson Solicitors
For the respondent: Ms S. Cunha, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appealed the respondent’s decision dated 25 February 2020 to refuse a human rights claim.

2. The respondent’s records showed that the appellant claimed asylum on 26 December 1995. The application was refused on 22 January 1997. The respondent refused the recent human rights claim with reference to the ‘Suitability’ provisions. The application was refused under paragraph S-LTR.1.6 on the ground that the appellant’s presence in the UK was not conducive to the public good. The respondent noted that the appellant was convicted of a series of offences on 21 July 2008. He was convicted of possessing an improperly obtained ID card relating to another. At the same time he was convicted of driving otherwise than in accordance with a licence and while uninsured. He was disqualified from driving for 12 months and ordered to forfeit the false driving licence. The appellant was sentenced to a 24 month community order with a 60 day activity requirement to be served concurrently. The respondent also asserted that the appellant used deception to enter the UK under a different name as Abdi Mohammed Ahmed in 1999.

3. The respondent found that there was insufficient evidence to show that the appellant had been living in the UK for a continuous period of at least 20 years for the purpose of paragraph 276ADE(1)(iii) of the immigration rules. The respondent also concluded that the appellant would not face ‘very significant obstacles’ to integration in Tanzania for the purpose of paragraph 276ADE(1)(vi). He had spent most of his life there, was familiar with the cultural norms, and was unlikely to have lost those ties. There were no exceptional circumstances to outweigh the public interest in maintaining an effective system of immigration control.

4. First-tier Tribunal Judge Gandhi (‘the judge’) dismissed the appeal in a decision promulgated on 08 September 2021. She summarised the respondent’s reasons for refusing the application, the appellant’s case, and the evidence before the Tribunal. She noted that the psychiatric report prepared in support of the appellant’s case stated that he continued to have a subjective fear of return to Tanzania. Although she appeared to accept that the appellant may have been through a traumatic experience she rejected the assertion that it occurred during detention in Tanzania [26]. The judge concluded that there was insufficient reliable evidence to show that the appellant would be at risk on return.

5. The judge went on to consider the requirements of the immigration rules as follows:

’33. The first issue I have to consider is suitability. Ms Wass states that S-LTR.1.6 is a discretionary ground of refusal and I should take into account that there was no evidence of any difficulties with the appellant completing his community service, this was his one and only conviction, and it is now years ago, and is spent, and the appellant is very remorseful.

34. In my view on a clear reading of the Immigration Rules, S-LTR.1.1 of Appendix FM is a mandatory ground of refusal:

S-LTR.1.1 The applicant will be refused limited leave to remain on grounds of suitability if any of paragraphs S-LTR.1.2 to 1.8. apply [emphasis added]

S-LTR.1.6. The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3 to 1.5), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.

35. Further Mahmood (paras. S-LTR.1.6. & S-LTR.4.2.; Scope) [2020] UKUT 00376 (IAC) confirms that this is correct.

36. In my view therefore, regardless of my sympathy with the arguments of Ms Wass, I find I have no option but to find the appellant does not satisfy the suitability criteria due to his previous criminal convictions as set out in the refusal letter and therefore should be refused leave to remain in the UK.’

6. In relation to the second issue relied upon to refuse the application on ‘Suitability’ grounds, the judge accepted that no evidence had been produced to show that the appellant used deception to enter the UK in 1999 beyond the bare assertion made in the decision letter [37].

7. In the alternative, the judge went on to consider the evidence relating to his length of residence. She reviewed the written and oral evidence in some detail and explained its strengths and weaknesses. Having considered the evidence in the round, she concluded that the appellant had shown that it was more likely than not that he had lived in the UK for a continuous period of at least 20 years [71]. She went on to consider whether there would be ‘very significant obstacles’ to integration for the purpose of paragraph 276ADE(1)(vi) and explained why, even after this length of time, there would be no such obstacles.

8. The judge went on to undertake a wider assessment of Article 8. She took into account the appellant’s poor immigration history, having remained in the UK for so long without leave. She made clear that the fact that he did not meet the requirements of the immigration rules ‘weighs heavily in favour of it being proportionate to remove the appellant.’ [83].

9. The appellant appealed the First-tier Tribunal decision on the ground that the judge erred in her assessment of the balancing exercise under Article 8. The grounds argue that the judge failed to evaluate the public interest considerations properly. They also argue that the judge failed to take into account the fact that she had found that at least one of the considerations relied upon by the respondent was not made out. Having found that the appellant had lived in the UK for a continuous period of 20 years the judge failed to make any findings as to what weight should be placed on his private life in the UK.

Decision and reasons

Error of law

10. The First-tier Tribunal decision is well-structured and generally well-reasoned. However, we conclude that there is force in the submission that it was insufficient for the judge merely to state that weight was given to the fact that the requirements of the immigration rules were not met without weighing the circumstances surrounding the public interest considerations adequately.

11. The judge was correct to say that paragraph S-LTR.1.1 of Appendix FM states that an application ‘will be’ refused if any of the listed ‘Suitability’ grounds apply. However, when it comes to considering the terms of paragraph S-LTR.1.6 the wording requires an evaluative assessment of whether the appellant’s presence in the UK is not conducive to the public good because his conduct, character, associations, or any other reasons, make it undesirable to allow him to remain in the UK. The wording does not create a strict liability refusal merely because the appellant has a single conviction. It requires an assessment of how serious the conduct was within the proper context of the facts before a conclusion is reached on whether paragraph S-LTR.1.6 applies.

12. The judge had already noted that this was his only conviction, that it was relatively minor, that it was historic, and that the appellant was remorseful. There was no evidence of any further convictions in the 13 year period since. The judge had also made a finding that the second reason given by the respondent for relying on paragraph S-LTR.1.6 was unsupported by evidence. These were all factors that should have been evaluated in assessing whether the appellant’s presence in the UK was not conducive to the public good.

13. The judge failed to explain why her reliance on the decision in Mahmood supported her approach. It is correct that the Upper Tribunal in Mahmood rejected the submission that paragraph S-LTR.1.6 was discretionary in nature. The terms of paragraph S-LTR.1.1 make clear that if one of the relevant ‘Suitability’ criteria apply the application ‘will be’ refused. However, in our assessment what the Upper Tribunal said at [50] of Mahmood is not a finding that the terms of paragraph S-LTR.1.6 are not subject to any evaluation at all. The Upper Tribunal made clear that a mandatory refusal results ‘if one of the seven discrete factual circumtances are established’ [emphasis added]. If it is shown that a person’s conduct, character and associations are such that their presence in the UK is not conducive to the public good, only after that evaluation, will the finding justify a mandatory refusal.

14. We note that the wording of paragraph S-LTR.1.6 contrasts with the preceding paragraph S-LTR.1.5, which states that ‘the presence of the applicant is not conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm.’ [emphasis added]. Unlike paragraph S-LTR.1.5, the broader wording of paragraph S-LTR.1.6 is not phrased in the terms of administrative review. The wording requires a court or tribunal to conduct an evaluative assessment of the facts of the case and come to a conclusion as to whether the presence of the person is not conducive to the public good and it is therefore undesirable for them to remain in the UK.

15. For these reasons we conclude that the judge erred in finding that no evaluation of the facts was required for the purpose of paragraph S-LTR.1.6 merely because, if the conditions are established, it would lead to mandatory refusal. This error may not have made any material difference to the outcome of the appeal had the judge gone on to conduct a full evaluation of what weight should be placed on a relatively minor conviction in the course of the wider balancing exercise, but that assessment is absent from the decision. Nor was any consideration given to whether the public interest considerations relied upon by the respondent were somewhat reduced in light of her finding that there was no evidence to support the assertion that the appellant used deception to enter the country in a false name in 1999. Given that the judge accepted that the appellant met the 20 year requirement of paragraph 276ADE(1)(iii) of the immigration rules, her failure to evaluate what weight should properly be accorded to a relatively minor and historic conviction amounts to a material error of law.

Remaking

16. We indicated our decision relating to the error of law at the hearing. The parties agreed that the decision could be remade without the need for a further hearing. We invited submissions for remaking.

17. Both parties accepted that paragraph 276ADE(1)(iii) acknowledges a certain level of illegality. The rule is designed to recognise when a particularly long period of unlawful residence might nevertheless engage the operation of Article 8. This was discussed by the Court of Appeal in ZH (Bangladesh) v SSHD [2009] EWCA Civ 8; [2009] Imm AR 450 in the context paragraph 276B (the predecessor to paragraph 276ADE(1)(iii)). In Aissaoui v SSHD [2008] EWCA Civ 37 the Court of Appeal said that if the public interest considerations are applied too strictly it would defeat the purpose of the rule relating to unlawful long residence.

18. The relevant requirements of paragraph 276ADE(1) for the purpose of this appeal are:

276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment);

19. The wording of paragraph 276ADE(1)(iii) itself does not contain any public interest provisions. It only requires that a person has lived continuously in the UK for at least 20 years (discounting any period of imprisonment). In this way it contrasts with the previous wording of paragraph 276B where the public interest question of whether ‘having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence’ formed an integral part of the rule. Paragraph 276B required an assessment of that question with reference a non-exhaustive list of factors, which included an evaluation of the person’s ‘character, conduct, associations and employment record’ and ‘previous criminal record and the nature of any offence of which the person has been convicted’.

20. We bear in mind that paragraph S-LTR.1.6 is designed as a general ‘Suitability’ provision that might apply to a range of applications made on family and private life grounds under the immigration rules. However, it still forms an integral part of the overall requirements to be granted leave to remain on the grounds of private life in the UK because a person must show that the application for leave to remain on grounds of 20 years continuous residence does not fall for refusal under one of the ‘Suitability’ grounds listed in paragraph 276ADE(1)(i). Although the structure of the current scheme is different, the underlying intention to ensure that any relevant public interest considerations are properly evaluated in an application made on the grounds of long residence appears to be the same.

21. The question of whether a person’s presence in the UK is not conducive to the public good for the purpose of paragraph S-LTR.1.6 is binary. A person’s continuing presence in the UK is either non-conducive or not. It requires its own freestanding evaluation which is not, on the face of the wording, contingent upon the context of the applicable rule. However, the factual matrix that informs consideration under paragraph 276ADE(1)(iii), or any other rule where ‘Suitability’ is required to be considered, is likely to inform the evaluation of S-LTR. To this extent we find that the principles outlined in ZH (Bangladesh) and Aissaoui are still broadly applicable to applications made under paragraph 276ADE(1)(iii) in so far as the rule contains an inherent acknowledgment of a certain level of illegality.

22. In this case the judge accepted that the appellant met the underlying factual requirement to have lived in the UK for a continuous period of at least 20 years. The assessment of whether the presence of the appellant is not conducive to the public good because of his conduct, character, and associations, such that it is undesirable for him to remain in the UK needs to be considered in this context.

23. In evaluating whether paragraph S-LTR.1.6 applies we take into account the fact that the respondent relied on two factors to justify refusal on grounds of ‘Suitability’. We agree with the First-tier Tribunal that there is no evidence to support the assertion made in the decision letter that the appellant used deception to enter the UK in 1999. No weight can be placed on that assertion in assessing whether the appellant’s presence in the UK is not conducive to the public good such that it would be undesirable to allow him to remain.

24. The evaluation under paragraph S-LTR.1.6 then hinges on the single set of convictions in 2008 for which the appellant was sentenced to a 24 month community order. The offence appeared to involve the use of a false driving licence and driving without insurance. The respondent gave no consideration to the nature of the offence nor its age when considering whether paragraph S-LTR.1.6 applied. There is no indication that the respondent considered the ‘Suitability’ provision in the proper context of an application for leave to remain under paragraph 276ADE(1)(iii), which waives a certain level of illegality. This is not to say that a person’s conduct can never justify refusal under paragraph S-LTR.1.6 if they have lived in the UK for a continuous period of at least 20 years. Whether a person’s conduct justifies refusal on ‘Suitability’ grounds will depend on the facts of each case.

25. Clearly it is not to the appellant’s credit that he remained in the UK unlawfully after his asylum claim was refused. However, the mere fact of unlawful residence was described in ZH (Bangladesh) as a ‘neutral gateway factor’ given the terms of the underlying rule.

26. The appellant was convicted for an offence involving a false ID document. The character of the offence was one that was likely to be connected with the unlawful nature of remaining in the UK without leave. In the past the courts have recognised that a person might use a false identity to enable them to survive in the UK. Of course, offences of this kind can range in nature and scale. Immigration offences at the more serious end of the scale might still justify refusal on ‘Suitability’ grounds. However, in this case the conviction was for relatively minor offences, which was reflected in the sentence. We take into account the fact that the offences did not attract a custodial sentence and that there is no evidence to suggest that the appellant did not complete the community order as required.

27. In assessing whether the presence of the appellant is not conducive to the public good such that it would be undesirable to allow him to remain in the UK, we also take into account the historic nature of the offence. There is no evidence to show that the appellant has been convicted of any further offences in the 13 years since. There is no evidence to show that there is any current risk of offending.

28. Having considered the evidence in the round, we conclude that the appellant’s conduct, including his character and associations, do not show that refusal with reference to paragraph S-LTR.1.6 is justified. The public interest factor relied upon by the respondent is insufficiently serious to conclude that the appellant’s presence in the UK is not conducive to the public good. Such a minor conviction, when considered in the context of paragraph 276AD(1)(iii), does not show that it would undesirable to allow him to remain in the UK.

29. Having concluded that the appellant does not fall for refusal under paragraph S-LTR.1.6, on the findings made by the First-tier Tribunal, the appellant meets the requirement of paragraph 276ADE(1)(iii) to have lived in the UK for a continuous period of at least 20 years. Paragraph GEN.1.1 of Appendix FM states that the immigration rules reflect where the respondent considers a fair balance is struck for the purpose of the balancing exercise under Article 8 of the European Convention. For this reason it is not necessary for us to go on to conduct a full Article 8 assessment.

30. For the reasons given above, we conclude that the First-tier Tribunal decision involved the making of an error on a point of law. That part of the decision relating to the assessment of the appellant’s private life under Article 8 is set aside.

31. In remaking, we conclude that that the appellant meets the requirements of paragraph 276ADE(1)(iii) of the immigration rules. The removal of the appellant would be unlawful under section 6 of the Human Rights Act 1998.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law

The appeal is ALLOWED on human rights grounds

Signed M. Canavan Date 21 March 2022
Upper Tribunal Judge Canavan

________________________________________________________________________________
NOTIFICATION OF APPEAL RIGHTS
1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:
2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).
3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).
4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).
5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.
6. The date when the decision is “sent’ is that appearing on the covering letter or covering email