HU/07208/2015

• Status of case: Unreported
• Hearing date: 26 Jan 2017
• Promulgation date: 17 Feb 2017
• Publication date: 24 Nov 2021
• Last updated on: 24 Nov 2021

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07208/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 26 January 2017
On 17 February 2017



Before

UPPER TRIBUNAL JUDGE MCGEACHY


Between

TOLGA BINBUGA
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr C Jacobs, of Counsel instructed by Messrs Ahmed Rahman Carr Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer


DECISION AND REASONS
1. On 20 October 2016 I heard an appeal by the Secretary of State against a decision of Judge of the First-tier Tribunal Ruth in which he had allowed the appellant's appeal against a decision to deport. I found errors of law therein and set aside the decision. As I had not, at the hearing, indicated that I would re-make the decision without a further hearing I directed that the appeal came back before me for further submissions to be made. In my decision setting aside the determination of Judge Ruth I detailed the appellant's immigration history, his history of offending, and the evidence given before the judge as well as the reasons why I considered that the judge's findings on various matters contained errors of law. As I set out my reasoning for my conclusions on each aspect of the issues which had been before the judge in some detail, I incorporate that decision into this determination although for the sake of clarity where I have set out the judge's findings in paragraph 18 I have changed what I first wrote: that does not alter my statements regarding the relevant law and my conclusions. I wrote as follows:-
"1. The Secretary of State appeals, with permission, against a decision of Judge of the First-tier Tribunal Ruth who, in a determination promulgated on 11 April 2016, allowed the appeal of Tolga Binbuga against a decision of the Secretary of State to deport him to Turkey under the provisions of Section 3(5)(a) of the Immigration Act 1971. Although the Secretary of State is the appellant before me, I will for ease of reference refer to her as the respondent as she was the respondent in the First-tier. Similarly, I will refer to Tolga Binbuga as the appellant as he was the appellant in that Tier.
2. The appellant is a citizen of Turkey who was born on 4 April 1990. He entered Britain with his father, mother and siblings on 28 September 1999 and although his family's application for asylum was refused the family were all granted indefinite leave to remain on 25 June 2004.
3. On 17 January that year the appellant had received a reprimand for shoplifting, and on 27 July 2006 he was convicted of robbery at Wood Green Crown Court and received a conditional discharge of eighteen months. He was then warned by the respondent that although he would not be deported on that occasion, deportation might be considered in future if he were to come to adverse notice.
4. On 9 July 2008 he received a caution for the possession of cannabis. He was convicted of criminal damage on 27 March 2009 receiving a fine for that offence. Although the following year all other members of the family were granted citizenship, he was not included in the grant as he was already an adult and had not made an application.
5. On 23 August 2013 he was convicted at Wood Green Crown Court following a plea of not guilty of assault occasioning actual bodily harm. He received a suspended sentence of four months. On 7 August 2014, within the eighteen month period of his previous suspended sentence, he was convicted at the same court of burglary and theft from a dwelling. He pleaded guilty and received a sentence of imprisonment for nine months. Three months of his previously suspended sentence for assault were activated.
6. Following that conviction the respondent made a decision to deport under the automatic deportation provisions in the UK Borders Act 2007. The decision was initially certified but after judicial review proceedings, and on the basis that the appellant had received call-up papers for military conscription in Turkey and therefore it would be impossible for him to pursue an appeal effectively out of country, the initial deportation decision and certification was withdrawn and a fresh deportation decision was served on 22 September 2015 on the basis that the deportation of the appellant was conducive to the public good as he was a persistent offender and that his most recent convictions had resulted in consecutive sentences totalling twelve months' imprisonment. In the decision letter the respondent referred to paragraphs 398, 399 and 399A of the Immigration Rules. Although it was accepted that the appellant had been lawfully resident in Britain for most of his life, it was considered that he had failed to demonstrate that he was socially and culturally integrated into Britain and it was also considered that there were no significant obstacles to his integration into Turkey.
7. The appellant appealed and his appeal came before Judge Ruth on 15 March 2016. The judge heard evidence from the appellant and members of his family, and in paragraphs 51 onwards of his determination set out his conclusions and the reasons therefor before stating that he allowed the appeal under the Immigration Rules and on human rights grounds.
8. In paragraph 55 the judge stated that his approach would be to consider whether the appellant satisfied the definition of a foreign criminal set out in Section 117D of the 2002 Act and then, if that condition was satisfied, the next step would be to consider whether the appellant satisfied the requirements specifically set out in paragraphs 398, 399 and 399A of the Rules. He then noted that if the provisions in paragraphs 399 and 399A were not met the further question would be to consider whether or not there were exceptional or very compelling circumstances as set out in paragraph 398. He commented that that paragraph was to be interpreted as importing "the well established principles of assessing the proportionality of deportation on Article 8 grounds as set out in jurisprudence".
9. When considering Section 117D the judge accepted that the appellant satisfied sub-Sections 2(a) and (b). He stated however that the appellant had not been sentenced to a period of imprisonment of at least twelve months (he referred to the provisions of Section 117D(4)(b)) and then went on to conclude that he did not consider that the appellant was a "persistent" offender. He set out detailed reasons for that conclusion. In effect, he stated that the appellant's offending which had taken place up until 2009 had been persistent but that the break thereafter meant that the issue was whether or not the appellant was a persistent offender after 2013 and at the time of his last conviction in August 2014. He concluded that at the date of decision the appellant was no longer a persistent offender: his reasoning for that was that the appellant has committed no further offences since October 2013. He glossed over the question of whether or not the appellant had caused serious harm.
10. He therefore concluded that the appellant was not a foreign criminal and that paragraph 398 of the Immigration Rules would not apply to him.
11. The judge then considered the case in the alternative, if, as a persistent offender, the appellant satisfied the requirements of paragraph 398(c) of the Immigration Rules. He considered the provisions of paragraph 399A stating that he was applying the holistic approach set out in the determination of Bossade (Sections 117A-D - interrelationship with new Rules) [2025] UKUT 000415 (IAC). He stated it was clear that the appellant met the provisions of sub-paragraph (a) since he had been lawfully resident in Britain for most of his life and he then went on to consider whether or not the appellant should be considered to be socially and culturally integrated into Britain. He noted the respondent's view was that the appellant was not so integrated because of his criminality and his failure to make a positive contribution to society and also that the respondents had taken the view that there were no very significant obstacles to integration into Turkey.
12. The judge stated that he reached the opposite conclusion. In paragraph 80 he stated:-
"I reach my conclusion for a number of different reasons. Firstly, taking the oral evidence as a starting point, it seems to me that any person familiar with the accent, demeanour and presentation of youths from North London would be likely to regard the appellant and his brother as quintessential examples of such persons. Both spoke perfect and fluent English and expressed themselves with typical North London accents. They also presented themselves, in terms of their demeanour, in a manner entirely consistent with what one would expect from a young person who has grown up in North London. In my view this was so clear in evidence that it is a matter of which I am entitled to take judicial notice. This appellant is very clearly a 'native' North Londoner in his presentation".
13. The judge went on to say that having noted the demeanour of the appellant and his family the appellant was clearly remorseful for his previous actions. He referred to the fact that since he arrived in Britain as a 9 year old boy the appellant had completed all of his schooling up to GCSE and had made all of his friendships and social contacts in this country and that he had no such friendships or social contacts in Turkey apart from an elderly grandmother whom he last saw and spoke to in 2008. He noted that although the appellant appeared not to be in regular work, he had worked periodically in the past since leaving school, including as a cook working in a kebab shop and with his father in a butcher's shop. His language of normal social intercourse, even with his siblings, was English.
14. He referred to the OASys assessment and then went on to say in paragraphs 83 and 84:-
"83. It is a sad and unpleasant fact of life that in various parts of London 'gang culture' is an accepted and widespread part of life for many young people. According to the Probation Service report, the appellant is known to have previously associated with a gang called the 'Get Money Gang' in North London. It is clear from the report that the Probation Service accepted that the appellant conducted his previous offending behaviour always in the presence of other young persons.
84. In my view, although it is a sad and unpleasant conclusion, the likely association of the appellant with this North London gang is a good example of his integration into one of the less savoury aspects of UK life. I take the view that in considering integration into the life of the UK, it is necessary to take into account that life as it is genuinely and honestly lived on the ground. That means not putting out of account aspects of life in the UK which we might regard as unfortunate and unpleasant. Gang culture is sadly a part of life for many young people in this country and the fact that the appellant appears to have involved himself in that culture is, in my judgment, an example of his integration into life in the UK".
15. He then referred to a document from Enfield Council confirming the appellant's attendance at two schools in that local authority area and letters of support from various members of the community who have known the appellant and his family members over the years. He stated that all the letters confirmed the appellant had been part of the community in this country for many years, most notably during significant and important years as he grew from a child to an adult between the ages of 9 and 18. He referred to case law including BK (Deportation - Section 33 "exception" UKBA 2007 - public interest) Ghana [2010] UKUT 328 (IAC) and RG (Automatic Deportation - Section 33(2)(a) exception) Nepal [2010] UKUT 273 (IAC). He stated that although this was not an automatic deportation case, it seemed to him that much of the guidance contained within these decisions remained relevant to the appeal. He said that the essence in the guidance in those two cases was that where a person had spent a good deal or most of their life in the UK since childhood they are, in reality, home grown criminals and their long residence as a child can outweigh even the most serious kinds of offences including causing grievous bodily harm and dealing in class A drugs.
16. He also cited the judgment of Mr Justice Sedley in paragraph 35 of HK (Turkey) [2010] EWCA Civ 583 where Sedley J had stated that the number of years a potential deportee has been in Britain was always likely to be relevant but what was likely to be more relevant was the age at which those years began to run. Sedley J had referred to the example of fifteen years spent in Britain as an adult being not the same as fifteen years spent in Britain as a child. He stated that "The difference between the two may amount to the difference between enforced return and exile".
17. The judge took the view that the appellant was clearly socially and culturally integrated and could be regarded as a "home grown criminal" and that these facts should be taken into account when considering any obstacles to his integration into Turkey.
18. He noted that the appellant had spent the last seventeen years here and for almost a decade of that period he was a minor mostly as an adult living in the United Kingdom, and he took the view that there would be undoubted obstacles which the appellant would face upon deportation to Turkey. However, he stated that these could not be regarded as very significant as he would have spent his formative years growing up in that country. However, he emphasised that the seventeen years had been spent mostly in Britain and stated that was a fundamental difference. The appellant had no adult experience or memories of Turkey except for a very brief holiday with family members in 2008 while he was still a teenager, and his entire nuclear family lived here. The appellant had no experience of working or living in Turkey. It was his view that for the appellant to be sent to Turkey would amount to exile. He said that he took that view notwithstanding the submission of the respondent that the appellant was a healthy adult and could perhaps expect some at least temporary financial or other assistance from his UK-based family.
19. He therefore concluded that the appellant satisfied all the requirements of paragraph 399A of the Immigration Rules. However he went on again to consider the issue of the appellant's potential integration into Turkey. He did not place any weight on the assertion that the appellant did not want to undertake military service stating that if that really was the appellant's position he should apply for international protection. His overall conclusion was however that the appellant had failed to establish a prima facie case that he was entitled to such protection.
20. He then went on to consider whether or not there were any very compelling circumstances which would mean that the appellant would benefit from the provisions of paragraph 398 of the Rules. He set out the relevant tests under Huang and Razgar and said he took into account the requirements of Section 117A, B, C and D of the 2002 Act as amended by the 2014 Act. He stated that he was aware that the fact that parliament had "tilted the scales even more strongly in favour of deportation and that the assessment of proportionality must be looked at through the lens of the determination made by parliament as to where the public interest generally lies". Having found that the appellant was exercising family life with his family to an extent that there were "more than the normal emotional ties", he went on to say in paragraph 121 that he considered that this was a rather unusual case and that the evidence was that the family and the appellant had in effect "closed ranks" and faced ostracism from the UK-based Turkey speaking community as a result of the appellant's criminality. He went on to say that there was very compelling evidence that the appellant's parents and siblings had a kept close eye on him and had spent almost every day with him since he came out of prison. They had stated that they maintained an unusually strong connection because of the need to assist the appellant in his transition from a person involved in what might be described as gang culture to a person who no longer commits crimes.
21. He referred to the probation officer's report which stated that the appellant had made positive progress in identifying the impact his activities had had upon victims, the community and wider society and the risk he posed to the public depended on distancing himself from his criminal peers and peer pressure.
22. Having found that Article 8 was engaged, he then addressed the issue of proportionality. He placed particular weight on the seriousness of the appellant's crimes and referred in particular to the sentencing judge's remarks. He took into account the need to discourage non-nationals admitted to Britain from believing they could commit offences and yet be allowed to remain, referring in particular to the judgment of the Court of Appeal in N (Kenya) v SSHD [2004] EWCA Civ 1094. He concluded that clearly in this case deportation was in the public interest and indeed he concluded in paragraph 132 that:-
"In all of these circumstances I find deportation would clearly be necessary as contended by the respondent".
However, he then turned in the following paragraphs to the issue of proportionality. He found that the appellant's leave had not been precarious but then took into account the requirements of Section 117C(2) of the 2002 Act noting that the more serious the offence, the greater is the public interest in deportation. He referred to the sentencing judge's remarks and that the judge had said that he accepted that the appellant now saw how wrong his actions were and gave him full credit for the plea of guilty. He stated that, given the sentence, this was a matter which, although serious, was not in the highest "catalogue" of the very worst crimes and, in his view the public interest in deportation should be considered from that perspective when conducting the balancing exercise necessary for the assessment of proportionality. Having referred to relevant case law, he stated that he has taken into account the risk of re-offending, the need to deter foreign criminals and the necessity to make them realise that deportation was a likely consequence of criminality regardless of other factors, and the expression of society's revulsion at such crimes. He commented that as far as the risk of re-offending was concerned however, there was some inconsistency in the Probation Service report. He stated that the writer of the report appeared to have used different methodologies in assessing the appellant's risk of future offending and said that these had not been explained to him, nor was it clear why they appeared to reach different conclusions. He referred to paragraph 2.14 of the report where the probation officer states that using the "Offender Group Reconviction Score", the appellant represented a low risk of reconviction within a year (29%) and a low of reconviction within two years (46%). He then said that on the other hand the probation officer had stated that the appellant was assessed as a medium risk of serious harm and re-offending because he had partly blamed the influence of his peers for his criminal activity. He said it was not clear why the officer had reached that different conclusion in the same paragraph as concluding the appellant represented a low risk of future harm. He went on to say that at paragraph R4.4, the probation officer had used a different methodology, the "OVP" score, to assess the risk the appellant would re-offend as low within one year (16%) and low within two years (27%). Later on in the report at paragraph R11.12, the conclusion had been that the appellant represented a low risk of re-offending in either one or two years (29% and 46%), a low risk of violent re-offending in one or two years (16% and 27%) and a medium risk of non-violent re-offending in one or two years (25% and 38%). He noted the comments of the probation officer that the robbery in 2006 and damage to property in 2009 were probably linked to the appellant's growing up with a negative peer group, had been committed when he was a juvenile and were, because of the relatively minor sentences, at the lower level of the scale. He then referred to the family support and the fact that the appellant was disassociating himself from his peers.
23. He referred to his own assessment of the demeanour of the appellant in his conclusion that the appellant had probably been rehabilitated - he referred to the psychotherapist's report. He noted positive assessments from the prison wing and that the appellant had attended all of his probation appointments while on licence and complied with all the conditions attached.
24. He referred to paragraph 12.8 of the probation report where it was stated that:-
"Mr Binbuga did not openly express any pro criminal attitudes during reporting. In discussing the particulars of the index offence, he has demonstrated remorse for his actions and a positive attitude towards the community and overall society".
25. At paragraph 151 of the determination the judge set out his conclusion that:-
"It seems to me that when considered as a whole the probation report therefore clearly shows the appellant was initially reluctant to admit full responsibility for his crimes but then, particularly after being in custody and during the course of his licence, altered his perspective".
The judge noted that the report stated that the appellant's motivation had changed and he was now quite motivated to address his offending behaviour and that the report had stated the appellant had the capacity to change and reduce offending behaviour and expressed the view that the appellant had expressed remorse and made positive progress in identifying the impact of his offending on the victims, the community and wider society. The judge referred to the appellant's relationship with his nuclear family who were playing a key role in helping him move on from his previous behaviour and concluded that the appellant was a low risk to the public of future offending.
26. He did take into account the issue of deterrence and the importance of that and the fact that the Secretary of State's decision had a public importance beyond the personal impact of the individuals directly affected by it.
27. In paragraph 157 he stated that:-
"This is a matter which weighs heavily in favour of deportation as does the need to ensure public confidence in the treatment of foreign citizens who commit crimes such as this, where society's revulsion is expressed not merely in the sentence but also in the possibility that the appellant be deported".
He stated that he is giving due weight to the public interest in deportation. Again in paragraph 159 he stated that the public interest was strong as set out in Section 117C of the 2002 Act. He pointed out that under Section 117C(4) he was required to consider whether or not the appellant had been lawfully resident in Britain for most of his life, was socially and culturally integrated and whether there would be very significant obstacles to his integration into Turkey. He adopted his conclusions already given before going on to say that he considered there would be very serious obstacles to the appellant's integration into Turkey. He stated, in paragraph 162, that he had reached the conclusion that deportation would be a disproportionate interference with the established private and family life of this appellant. In the following paragraph he stated:-
"This is one of those rare cases where the interests of the respondent are outweighed by the extremely and exceptionally compelling interests of the appellant".
28. He therefore allowed the appeal.
29. The Secretary of State's grounds of appeal were detailed and clear. Mr Nath largely relied on those grounds and Mr Jacobs had prepared a detailed and useful skeleton argument, which he amplified in his oral submissions in reply. I therefore propose going through the grounds and their replies, and setting out my conclusions as I go through them.
30. Firstly the grounds argue that the judge was wrong to find that the appellant was not a persistent offender. It was argued that the judge had erred in his consideration of the definition of persistent offender and, indeed, that he had been illogical in his conclusions. It was stated that while a person might eventually stop being a persistent offender after a sufficiently long period of non-offending, this kind of extended period had plainly not been achieved in this case and there was no logical explanation for why a period of two years between offences was long enough to justify finding that this was not a persistent offence. It was pointed out that between the appellant's last offence and the date of decision some time had been spent by the appellant in prison. Moreover, it was stated that the judge had erred in importing into the assessment of whether or not the appellant was a persistent offender an assessment of the severity of offending.
31. In reply to that point Mr Jacobs stated that there is no statutory definition of a persistent offender. The judge had looked at Home Office guidance and the Oxford Dictionary and he had not been criticised for taking that approach. The judge was entitled to consider the present terms in Section 117D and he stated that the judge was correct to look at the exact working of the statute. He emphasised the appellant had committed no offences since October 2013 and stated that the grounds were merely a disagreement with the fact-finding of the judge.
32. It was accepted that, although not before the judge, of relevance was the guidance given in the reported case of Chege ("is a persistent offender") [2016] UKUT 00187 (IAC) which had stated that the question of whether or not an appellant is a persistent offender was a question of mixed fact and law and fell to be determined by the Tribunal as at the date of hearing before it. The head note went on to say:-
"A 'persistent offender' is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or that the continuity of the offending cannot be broken. A 'persistent offender' is not a permanent status that can never be lost once it is acquired, but an individual can be regarded as a 'persistent offender' for the purpose of the Rules and the 2002 Act even though he may not have offended for some time. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date. Each case will turn on its own facts".
33. I consider the facts in this case. The appellant did commit offences in 2004, 2006 and 2008. The judge correctly categorises him as being a persistent offender at that time. The judge also accepts that given the appellant's criminality between 23 August 2013, when he received the suspended four month sentence, and the conviction for burglary and theft in August 2014, when he was sentenced to nine months' imprisonment, was a period of persistent offending. The judge however takes the view that by the date of decision the appellant was not a persistent offender. Given that the appellant was in prison until February 2014 and the decision was made eighteen months later, I cannot accept that the conclusions of the judge were correct. The appellant had committed two crimes in a relatively short period of time. Those crimes should be taken in the context that this was a man who had committed a series of offences at a much younger age. There is nothing to indicate that in such a short period of time he should no longer be considered to be a persistent offender. I consider that in so finding the judge had made a material error of law. I would add that I accept that the judge, in his conclusions, erred by taking into account the seriousness of the offences - that is not a relevant factor, the factor is when the crimes were carried out.
34. The judge, of course, then went on to consider the issue of whether or not the appellant had been convicted of an offence that had caused serious harm. The grounds set out the guidance which effectively defines serious harm as:-
"'An offence that has caused serious harm' means an offence that has caused serious physical or psychological harm to a victim or victims that has contributed to widespread problems and causes serious harm to a community but to society in general".
The grounds stated that there was a prima facie case of the appellant's offences - burglary of a dwelling, and a second offence occasioning actual bodily harm - constituted two offences which have both the necessary effect on the general public and on the victims themselves. I consider that there is no defence to that argument. Although Mr Jacobs argued that paragraph 19 of the refusal letter did not state that the appellant was being deported because of an offence which had caused serious harm but had stated that the deportation was conducive to the public good and in the public interest because he was a persistent offender and that therefore the grounds of appeal were now raising a matter which had not been raised either in the letter of refusal or at the appeal, I do not consider that that is an answer to that ground of appeal. The reality is that both burglary and assault cause psychological harm to victims and in the case of the offence of assault, physical harm to the victim. I would add that gang culture is clearly a widespread problem that causes serious harm to a community and to society in general. Again I consider that the judge erred in law in his consideration of the issue of serious harm.
35. The grounds of appeal then argue that the judge had erred in finding that the appellant was socially and culturally integrated into Britain, particularly focusing on the judge's assertion that the fact that the appellant was a member of a gang showed that he was integrated in the UK. The grounds relied on the decision in Bossade (Sections 117A-D - interrelationship with Rules) [2015] UKUT 415 (IAC).
36. In reply Mr Jacobs stated that the facts of this case were totally different from those in Bossade - an assertion with which I agree - but that the findings of the judge in paragraphs 78 to 97 of the determination demonstrated social and cultural integration. He argued that there was no authority to advance the proposition that integration excluded "gang culture" and went on in his skeleton argument to state that while gang culture may not be particularly pleasant, it was removed from behaviour excluding an individual from society due to incarceration for the committing of offences that are antisocial. He argued that the Secretary of State was attempting to re-argue the facts.
37. I simply cannot accept that being a member of a gang in North London can possibly be considered to be an example of social and cultural integration. There must be imported into the term "social and cultural integration" the norms of British society. Indeed, I consider that being a member of a gang is the antithesis of being socially and culturally integrated into the UK. While I consider that the facts in Bossade are distinguished in this case, I follow that decision in that I consider that the appellant's criminal conduct broke the continuity of his social and cultural integration in Britain. The time since the last offence is such that it cannot be said that during that time, notwithstanding what I say below relating to the information set out in the OASys Report and the other matters raised by the judge in paragraphs 79 through to 97 of the determination which show that bar his offending the appellant would quite clearly have been integrated into Britain and also placing weight on the statement of Sedley J in HK (Turkey) [2010] EWCA Civ 583 that the number of years that the appellant has spent as a child and young adult in Britain is of particular importance in a case such as this, I consider that the judge was wrong, taking all the facts into account, to consider that the appellant was socially and culturally integrated into Britain.
38. The grounds of appeal then argue that the judge was wrong to place weight on the appellant being a "home grown criminal". The reality, of course, is that the judge relied on the determination of the Tribunal in RG (automatic deportation - Section 33(2)(a) exception) Nepal [2010] UKUT 273 (IAC) when of course that decision was overturned by the Court of Appeal in Gurung v SSHD [2012] EWCA Civ 62. Moreover the Secretary of State was correct to rely on the judgment in LW (Jamaica) [2016] EWCA Civ 369. Again, while it is the case that the appellant has not committed as many offences as that of the appellant in LW and that they are of lesser importance, he has offended in Britain and that is what makes him a "foreign criminal". Again I consider that the judge was wrong in law in placing weight on the fact that he considered that the appellant was a home grown criminal.
39. In the next ground of appeal the respondent argues that the judge had erred in importing a "threshold" for severity of offending in deciding there would be very significant obstacles to the appellant's integration into Turkey. The reality is that the way the Rules are drafted they take into account the length of time which an appellant would have lived in Britain but that is not a relevant factor when considering whether or not the appellant would be able to reintegrate into Turkey. It was argued that what the appellant had to show was there were very significant obstacles to his reintegration should he be deported to Turkey. Although Mr Jacobs argued that Turkey would essentially be a foreign country for the appellant and that what he would face would be exile rather than return, that is really not the relevant issue when considering the terms of paragraph 399A(c) of the Rules. The reality is that this is a Turkish man who speaks Turkish and has at least one relative in Turkey. He is fit and there appears nothing to stop him building his life in Turkey. Again, the determination of Bossade is relevant where it was stated at paragraph 57 that the test is not met by simply showing that a person has no family ties in the country to which they were deported. I would add of course that the appellant is aware of Turkish culture because he has been brought up within the Turkish community in North London - that is clear from the comment that his family have been ostracised because of his criminality - and of course he must speak Turkish to his parents.
40. The next ground of appeal argued that the judge had erred in finding that the appellant's presence in Britain was not precarious for the purposes of Section 117B(5) of the 2002 Act. The grounds of appeal refer to paragraph 33 of the determination in Bossade in which it is said:-
"Of course in some circumstances it may be that even a person with indefinite leave to remain, or a person who has obtained citizenship, enjoys a status that is 'precarious' either because that status is revocable by the Secretary of State as a result of their deception, or because of their criminal conduct. That is a different set of circumstances to these, but we can see no answer to the point that, vitiated by dishonesty, a grant of indefinite leave to remain would be susceptible to a curtailment of proper grounds with immediate effect, the consequent removal of the immigration status previously enjoyed".
41. That of course is exactly what the situation is here. Mr Jacobs argued that the Secretary of State had not advanced that argument and that therefore the judge was not obliged to consider that question. The judge had said that he had taken Section 117B into account and that he had noted that the appellant had been living lawfully in Britain for most of his life. I do not consider that that is an answer to the ground of appeal.
42. Mr Jacobs argued that the judge was entitled to take the issue of rehabilitation into account. The reality is that the OASys Report assessed the appellant as at medium risk of serious harm, medium risk of re-offending, and indicated that the appellant had only demonstrated slight ownership of his offence. I also note the comment at 6.9 of the report that the social worker stated that:-
"I note, however, his current connection with his younger brother and being in the presence of pro criminal activities may place Mr Binbuga at risk of future offending thus affecting desistance from offending".
43. I take that further factor into account when noting the arguments put forward by the Secretary of State that the appellant has not shown that there were very compelling circumstances over and above those described in paragraph 399 and 399A which would mean that the appellant should not be deported. The judge clearly found that there were and indeed I place some weight on the fact that it was he who saw the appellant and his family give evidence. However, he does not identify any such compelling factors other than the length of time that the appellant has lived in Britain and his close relationship with his family. While Mr Jacobs argued that the fact that the appellant's family support him, the reality is that they did not manage to prevent his criminal offending in the past.
44. I therefore consider that the judge was not entitled to conclude that there were exceptional compelling factors in this case.
45. For the above reasons I set aside the determination of the Immigration Judge.
46. This is a very full determination and all relevant factors have been set out. On the evidence before me it must be clear that had at the hearing I had heard no further submissions I would have gone on to dismiss this appeal. However, I reserved my decision and therefore it is appropriate that the appeal should be brought back before me for me to hear any further submissions which Mr Jacobs would wish to make.
Decision
The decision of the Judge in the First-tier is set aside.
Directions.
The appeal will be listed for a further hearing before me in the Upper Tribunal. At least 14 days before the hearing the appellant's representatives must serve on the respondent and lodge with the Tribunal any further evidence, including witness statements, on which they wish to rely".
2. When the appeal came back before me Mr Jacobs submitted a short statement from the appellant emphasising his remorse at his actions and that he had no-one to whom he could turn in Turkey. He emphasised also that he had lived in Britain since the age of 8 and that his only relative there was a grandmother who was aged 80. He concluded his statement by stating:
"I have no ties, relationships or friendship in Turkey. The friends and family that I have known all my life are all in the UK. I have never lived apart from my parents and brother, aside from my time in prison. My immediate family mean everything to me and they are my life. I could not imagine being apart from them particularly as I know how much pain this will cause my mother".
3. Although Mr Jacobs correctly recognised that I was not hearing an appeal against my decision, he took me through the various issues in the appeal on which I had found that there were material errors of law in the judge's decision. He emphasised that I should consider that this was, on its own facts, an exceptional case and referred to the findings of fact of the First-tier Judge regarding the closeness of the appellant's family, the way in which he was integrated into Britain which included, he argued, the applicant's membership of a North London gang.
4. He argued that the First-tier Judge had been correct to find that the appellant was not a persistent offender, emphasising that he had committed no offences since October 2013. With regard to the issue of whether or not the appellant had been convicted of an offence that caused serious harm, he referred to my own comments in paragraph 34 of my decision but stated that that was not an argument that had been put forward by the Secretary of State in the letter of refusal. He took me to the sentencing remarks and indicated that the judge had referred to his making a mess when committing the act of burglary rather than any more serious allegation.
5. He stated that I should find the appellant was socially and culturally integrated and that the assessment of the judge was properly and thoroughly made. He emphasised that I should take into account the appellant's remorse, and that for this appellant deportation would in effect be exile from all that he had known. He argued that I take into account that the appellant's presence in Britain was not precarious in that he had had indefinite leave to remain here and therefore his private life built up over many years here should be taken into account. In any event, he argued that the appellant's relationship with his family was beyond normal relationships between adults because it was so strong. He emphasised again the exceptional nature of this case.
6. Mr Walker replied that there were no exceptional compelling factors, that my judgment had set out all relevant factors, and that I should take into account the number of the appellant's convictions between 2006 and 2014 and the fact that he had engaged in gang culture.
7. In re-making this decision I take into account the provisions of Section 117 of the nationality, Immigration and Asylum Act 2002, and in particular Section 117C which states that the deportation of foreign criminals is in the public interest and the more serious the offence committed, the greater is the public interest in deportation. That Section also sets out the exception to the deportation where a claimant has been lawfully resident in the United Kingdom for most of his life and is socially and culturally integrated into Britain and there would be very significant obstacles to his integration into the country to which it is proposed he be deported. While I consider that the appellant has been lawfully resident in the United Kingdom for most of his life, I do not consider that it can be said that he is socially and culturally integrated into the United Kingdom given his history of offending. He committed offences in 2004, 2006, 2008 and again in 2013 and 2014. For the reasons I gave in my decision of 17 November at paragraph 37 I consider that his conduct was the antithesis of social and cultural integration. I would add that I consider that it cannot be argued that there would be very significant obstacles to his integration into the country to which it is proposed he be deported. The appellant speaks Turkish and has lived within the Turkish community in North London. He has close relationships with his parents who themselves were brought up in Turkey. He has a grandmother there. He is a fit, young man. I see no reason why there should be any significant obstacles to his integration into Turkey.
8. Taking into account the relevant Rules (398 onwards) it is clear that his deportation, because of his sentence, is considered to be conducive to the public good, a provision which was repeated in Section 117D of the 2002 Act. I have set out in my decision at paragraph 33 the reasons why I consider that the appellant can only be considered to be a persistent offender and in the following paragraph I have set out why I consider that his offences have caused serious harm. I have taken into account the report by Ms Susan Pagella, referred to as a psychosocial report on the appellant, regarding the risk of re-offending. I do not consider that report which concludes that the appellant's level of re-offending and his risk to the public to be low but I must take that in conjunction with the OASys Report which I consider indicates that the appellant was at a medium risk of serious harm, medium risk of re-offending and indicated that he had only demonstrated slight ownership of his offence. I consider that the OASys Report is a more objective report than that of Ms Pagella who was instructed by the appellant's solicitors.
9. I therefore do not consider that there are any factors which would mean that the appellant would come within any of the exceptional factors set out in Section 117 or in the rules. Moreover, I do not consider that there are any exceptional or compelling factors that would mean that his removal would be a disproportionate interference with his rights under Article 8 of the ECHR. I accept that he is exercising family and private life here, that he has close relationships with his parents and siblings, and has been brought up in this country but there is nothing further which would indicate particularly strong ties with Britain. He has no work record here of note, he is not married or in a durable relationship, and as I have said I do not consider that, difficult though it might well be, he would not be able to successfully integrate into life in Turkey. While I accept that he has a close relationship with his parents, the reality of course must be that they will be able to visit him in Turkey, let alone keep in touch by telephone or Skype. Indeed, there appears nothing to indicate that his parents, or at least his mother, would not be able to spend relatively long periods of time with him in Turkey. I note that the appellant's family were granted indefinite leave to remain on a discretionary basis: it is not the case that they were found to have a well-founded fear of persecution in Turkey.
10. I therefore conclude that there is nothing exceptional or compelling about this case. Taking into account the public interest in the deportation of foreign criminals, I can only conclude that his appeal must be dismissed.

Notice of Decision
This appeal is dismissed on both immigration and human rights grounds.


Signed Date

Upper Tribunal Judge McGeachy