Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/09826/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 February 2017
On 28 February 2017

Before

THE HONOURABLE MR JUSTICE COLLINS
UPPER TRIBUNAL JUDGE LINDSLEY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

tl
(anonymity direction MADE)
Respondent

Representation:
For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent: Mr T Fisher, Counsel instructed by Cardinal Hume Centre

DECISION AND REASONS
1. This is an appeal against the decision of Judge Rhys-Davies given on 26 October last year in which he allowed the appeal of the respondent against the decision of the Secretary of State that he should be removed following a number of convictions that he had been given.
2. The respondent is a citizen of Nigeria who was born in March 1961. There is some doubt as to how long he has been in this country. He said he arrived here in 1986 with entry clearance as a visitor and has remained here since. Whether or not the circumstances of his entry have been established or overall the lawfulness of his being here, the reality is that he was granted indefinite leave to remain in April 2013. He was certainly here before 1995 because in that year, whilst working as a taxi driver, he was attacked with an iron bar and suffered a very serious head injury resulting in brain damage. He has long-term cognitive impairments and what is described as a “dysexecutive syndrome”. The result of that was a change in his personality. He was a perfectly ordinary satisfactory worker as a minicab driver but following his serious injury and brain damage he began to commit criminal offences.
3. His convictions started in September 1998 and between then and 2004 he had 21 offences of shoplifting and possession of cannabis. He was also sleeping rough and was begging. Between 2008 and early 2012 he was in fact convicted of begging on seventeen occasions. He obtained assistance from a body known as the Westminister Compass Team who work with rough sleepers with complex needs and between February 2012 and the summer of 2014 he kept out of trouble and there were no convictions recorded. He was assisted in regularising his stay here and, as we have said, in 2013 he obtained indefinite leave to remain. No doubt there was very considerable sympathy for the condition in which he found himself, albeit he had been convicted of a number of offences, but none of them involved it would seem any violence. Sadly, too, he had taken up cannabis and it is certainly possible that particularly as he was taking skunk cannabis it may have affected his brain. However there was a serious change in his personality in the middle of 2014 and he then committed a number of offences which involved aggression. There were criminal damage, public order offences involving threats of one sort or another, handling stolen goods, common assault and possession of cannabis and shoplifting and he received a number of custodial sentences. The final conviction was one leading to a sentence of twelve weeks, suspended for twelve months, for two offences of criminal damage in June 2015. He appeared before the Crown Court at Blackfriars and there is in the papers before us an extract of the sentencing observations of the judge in March 2015 and the point was made that his life had been ruined by the assault upon him. Nonetheless he imposed then a sentence of 40 weeks’ imprisonment and it was clear that his aggressive behaviour was serious. The Secretary of State gave him warnings that if he continued to commit offences the likelihood would be a deportation order. He did continue offending and as a result the order was made.
4. The need to protect this country’s citizens from criminal aliens is clear and this offending, albeit not of the most serious, was such as undoubtedly justified the Secretary of State in forming the view that deportation was in principle to be correct. However it is always necessary to look carefully at the facts of the individual case and the question here is whether, in all the circumstances, the decision of the First-tier Judge that his appeal should be allowed was one which suffered from error of law. The judge records at paragraph 15 of his decision that Counsel for the respondent conceded that he could not prove that he satisfied the exceptions set out in paragraphs 399 or 399A of the Rules. The material provisions in those paragraphs are contained in 399A because what 399A requires is (a) that the person has been lawfully resident in the UK for most of his life, and (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. He has been in this country for a very long time and there is no question but that he was socially integrated here but the concession that is noted by the judge was that he could not prove that he satisfied the exceptions set out in 399 or 399A but rather relied on the general approach to Article 8 which is set out in 398 and as a result of that it is submitted both in the grounds of appeal and before us that what the judge did as we shall come to when we go through the decision was despite that concession to apply essentially 399A(c) which we have already referred to. We note that Counsel has denied that his concession went so far as the judge records and that he was never intending to concede that there would not be very significant obstacles to the respondent’s integration into the country to which it was proposed he was to be deported.
5. The judge sets out the background. He referred to detailed medical reports, particularly from a Dr Poole, that the criminal behaviour was a direct consequence of the attack upon him. He could not learn from punishments and was impulsive and could not reflect on his behaviour and there was as a result the significant deterioration. However it was possible that some form of treatment could be applied and it was desirable that he get off cannabis or any other drugs and of course to an extent it may be that he needs to recognise if he can that he has to co-operate with the authorities. However, having set out the history and referred to the worsening of his condition and having set out the various submissions the judge rejected properly and the respondent is not proceeding with an argument that he would be subject to treatment in Nigeria which would breach Article 3 or which would be persecution. He relied on the fact that as a former Muslim who had converted to Christianity he would be at risk from Boko Haram but that as we say is not pursued. The judge recorded this in paragraph 100 of his decision and we quote:
“While the reasons for the deterioration in the Appellant’s behaviour in 2014, from a quiet and reserved individual, to an erratic and aggressive one, are unclear. I do find that the sudden pattern of offending, with resultant periods of remands in custody, followed by short custodial sentences, was likely to have been a vicious circle. The Appellant moved ever further away from his previously stable and supported existence in the period 2012-2014, frustrating efforts to treat him and address his behaviour, leading to yet further offending.”
We see no reason to doubt, on the basis of material before him, those findings.
6. The judge then went to attach weight to the support which was still being given to him which had meant no offending between early 2012 and the summer of 2014 but his findings in paragraphs 104 and 106 are in our view central to the decision which he made, and we quote:
“104. I find that the expert medical evidence of Dr Poole satisfies me that if the Appellant is returned to Nigeria, he is likely to end up homeless and destitute, with irregular access to food and medicine, because of the significant disabilities he has with managing with day to day life. He cannot have anything other than a reactive subsistence existence without significant support.
106. Were the Appellant to be returned to Nigeria, I find it is fanciful to suggest that he would be able to obtain such medication and support alone, or with the help of his elderly and frail mother, who is his only relative there. Dr Poole is sceptical as to the availability of the treatments the Appellant would require in Nigeria in any event.”
7. The judge based his decision on very compelling circumstances that in his view outweighed the public interest in his deportation. That was applying as he understood the concession made by Counsel, paragraph 398 of the Rules. However, it seems to us that in addition to that from the judge’s proper findings about the situation in Nigeria were he to be returned, there would indeed be very significant obstacles to his integration there. The obstacles resulting from the condition that he suffers from, that he would be likely to end up homeless and destitute, that he would not have any support available to him and that the treatment that he might obtain would in the view of the doctors not be sufficient to meet his real needs. Whether one puts it on the basis of very compelling circumstances or applies Rule 399A(c) it seems to us that the judge’s decision was one that he was entitled to reach. It is not for us to reach an independent decision on the facts of the case. It is only if there is an error of law that the judge’s decision can be overturned and in our judgment, for the reasons we have indicated, there was no error of law in this case and in those circumstances this appeal by the Secretary of State is dismissed.

Notice of Decision
The appeal is dismissed on human rights grounds and under the Immigration Rules.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 15 February 2017

Mr Justice Collins

TO THE RESPONDENT
FEE AWARD
We have dismissed the appeal and therefore there can be no fee award.

Signed Date: 15 February 2017

Mr Justice Collins