Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/23818/2018

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Decision & Reasons Promulgated
On the 5th April 2022
On the 28th April 2022

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

Mr Shaquill Adler SELYER
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Tapfumaneyi of PT Law & Associates
For the Respondent: Mr T Melvin, Senior Presenting Officer

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Zimbabwe born in April 1999. He came to the UK in January 2004 to join his parents when he was four years old. He was given leave to remain until November 2007 and thereafter granted further periods of leave in 2012, 2015 and 2018. He made an application for indefinite leave to remain in May 2018. Until he was aged 13 there is no evidence of any incidents in the appellant’s life that brought him to the attention of the authorities.
2. Between 2013 and 2018 he acquired 4 convictions, the last, on 10 August 2018 at Northampton Crown Court, following an incident in December 2017. This was an affray in which the appellant and three others pursued another young man down the street and set about him with kicks and punches at about 3 o’clock in the morning. The violence was such that there had been a risk of permanent psychological or physical injury, or even death. The appellant, who pleaded guilty at trial, acknowledged that what was shown on the CCTV at trial was shocking, and expressed remorse and regret. It appears from the sentencing remarks that he, together with the other three who had pleaded guilty at an early stage, were all drunk. The judge imposed a twelve month youth custody sentence upon the appellant but also activated a suspended sentence in respect of which the appellant was in breach for offences of possession with intent to supply of class A drugs, namely heroin and cocaine. As a result the total sentence was one of 2 years and 2 months, of which half was to be served in a young offenders institution and half to be on licence.
3. On 23 August 2018 the respondent served the appellant with a notice of intention to deport, and a deportation order was made on 1 November 2018. The appellant then made an asylum and human rights claims. The asylum claim was refused on 2 July 2019. An appeal was brought against the two decisions: the refusal on 5 November 2018 to accept an asylum claim and the refusal on 2 July 2019 to accept a human rights claim. That appeal was dismissed on both grounds by the First-tier Tribunal on 25 October 2019. The appellant was granted permission to appeal against that decision, and the Upper Tribunal Panel found that the First-tier Tribunal erred in law for the reasons set out in our decision at Annex A to this decision.
4. The matter now comes back before me to remake the appeal pursuant to a transfer order. The Panel preserved the findings that led to the conclusion that the appellant could not succeed in his appeal on asylum/protection grounds. This remaking hearing therefore solely concerns the appeal on Article 8 ECHR human rights grounds. No findings are preserved from the First-tier Tribunal decision in relation to the human rights appeal.
5. At the start of the remaking hearing Mr Melvin properly raised the fact that the appellant had raised a new matter in his supplementary bundle, as there was a statement from a Ms S De Sousa, the appellant’s girl-friend, and she was in attendance and the appellant intended to call her to give evidence. Mr Melvin informed the Upper Tribunal that the respondent did not consent to this new matter being raised in these proceedings. I explained to the appellant and Ms De Sousa that as a result this new factual matrix could not be raised in this appeal, although it would be open to them to put it to the respondent in a new application if they wished to do so in the future.
6. The questions to be answer in the appellant’s Article 8 ECHR appeal are firstly whether the appellant can meet the requirements of Exception 1 as set out at s.117C(4) of the Nationality, Immigration and Asylum Act 2002; and if not, secondly, whether there are very compelling circumstances over and above the exceptions to deportation as per s.117C(6) of the 2002 Act.
Evidence & Submissions - Remaking
7. The appellant attended the Tribunal and gave oral evidence. In short summary his evidence from his statements and oral evidence is as follows. He acknowledges that he has been refused indefinite leave to remain and leave to remain on human rights grounds due to his criminal convictions. He says that these offences were committed during a period of juvenile delinquency at a time when his parents separated and he lost his direction in life. He argues that he no longer associates with those involved with criminal activities, and has integrated back into the community with the assistance of the probation service. He has lived in the UK for as long as he can remember, and has his mother, father, sister, two half siblings, two grandmothers and cousins in the UK – all of whom reside lawfully and some of whom are British citizens. He has done all of his education in the UK, and has a level one qualification in brick laying, and worked for periods of time in 2017 and 2018 this country for McDonalds and in a Waitrose warehouse. He is currently not allowed to work due to his immigration status and so has therefore been helping his sister renovate her hair dressing salon, has done some gardening for a neighbour, is doing DIY to help out at home and is providing some care for his paternal grandmother who recently came out of hospital and is in a care home. Since his release from prison in September 2019 he has been living with his mother, maternal grandmother, and for some of the time his sister, and is entirely financially supported by his family who provide a varying amount of pocket money, for instance £20 or £30, in return for his doing chores. He spends his time with his family, including paternal cousins and his half-siblings on his father’s side, and his girl-friend. All of the appellant’s family live in the Milton Keynes area.
8. The appellant says that he has no friends or family in Zimbabwe, and no understanding of the culture or any Zimbabwean languages. He has not been there since 2004. Zimbabwe is in a very bad situation economically, and there are no job opportunities with very high levels of unemployment. There is a shortage of water and power cuts. The Covid-19 pandemic has made things worse, and led to severe lockdowns. It is also a place where human rights violations take place; a place that he does not know or understand; and where he would not be accepted due to accent, which he fears would lead to knowledge in the community/ with the authorities of his lack of the necessary political associations and his history of criminal convictions.
9. The appellant’s mother, Tanisha Selyer, attended the Tribunal and gave evidence. In short summary her evidence from her two statements and oral evidence is as follows. She believes that the appellant should not be deported to Zimbabwe as he has lived in the UK since he was a very young child. She is very upset that he committed crimes, and knows he did the wrong thing, but feels that this was a response to the break-up of his parents’ marriage. She is certain the appellant is no longer in touch with the others with whom he committed crimes, and she has not seen them in the area either. She confirmed that he currently helps out with chores for various family members, including his sister and paternal grandmother, and that they provide him money, such as £50, for helping out. She also pays for his mobile phone which costs on average about £20 or £25 a month.
10. She says that the appellant has no ties to Zimbabwe or family there, and that no one will be able to provide for him there and that he should be allowed to remain in the UK as this is his home. Her view is that the cost of living in Zimbabwe is very high and the family in the UK do not earn enough to be able to keep the appellant there. She is making ends meet in the UK by working as a mobile hair-dresser and working as a part time care assistant in a care home. She believes that it would cost about 800 US dollars a month to rent an apartment in Harare, this information coming from an international Facebook Zimbabwe group to which she belongs. She last went to Zimbabwe approximately ten years ago to see her mother and step-father. She accepts that at the time of the last appeal her step-father had not come to the UK, as he came in 2021, but said that she had said there were no relatives in Zimbabwe because he spent his time between Zimbabwe and Zambia where her step-siblings live. Her step-father has not returned to either place since he arrived in the UK, and he no longer rents the family home they used to have there. She believes that the appellant lost his old Zimbabwean passport because he was using it as an identity document when he was a teenager. He could not renew his Zimbabwean passport in the UK as he does not have an ID card, and so would therefore need to travel to Zimbabwe to get a new passport.
11. The appellant’s father, Adler Selyer, attended the Tribunal and gave evidence. In short summary his evidence, from his two statements and oral evidence is as follows. The appellant should not be deported to Zimbabwe, a lawless pariah state where he has no links or ties given that he has lived in the UK since he was a very small child and speaks no native languages. Zimbabwe has a broken economy, and the appellant would not be able to find work there and would be forced to live in extreme poverty. His family, aside from his mother who is in the UK and father who has died, have emigrated to Australia. He explained that he and his family left Zimbabwe after they, including the appellant, were robbed at gun point when he was at work. They were able to come to the UK due to ancestral links. There are no family left in Zimbabwe to help the appellant. He believes that the appellant lost his passport a few years ago and this loss was probably reported to the Zimbabwean authorities in the UK.
12. His opinion is that the appellant’s offending was as a result of an unhappy home environment during his teenage years, and he feels responsible for not being a good role model during this time. He and the rest of the family are now committed to supporting the appellant so that he does not offend in the future. He sees the appellant at weekends when he is not working, and the appellant sometimes stays over. The appellant has now formed close relationships with his two young children, aged 4 and 3 months, from his new partner. He is very proud of how the appellant has changed his life around since going to prison. The appellant does DIY jobs for family members, and they give him some money in exchange. Sometimes he gives the appellant £100 a week, and sometimes he buys him some clothes. He explained that his mother (the appellant’s paternal grandmother) could not attend the Upper Tribunal to support the appellant, although she would have liked to do so, because she was unwell.
13. The appellant’s sister, Kamil Selyer, attended the Tribunal and gave evidence. In short summary her evidence, from her statement and oral evidence, is as follows. She acknowledges that the appellant committed crimes in the UK, but she believes that he is very sorry for what he did and is now a changed and better person following his time in prison. She confirmed that the appellant has spent a lot of time helping her with DIY renovations to her flat and hairdressing salon. She moved out of the family home in 2019 and moved into her own apartment in December 2020. She believes he should be allowed to remain in the UK, the country in which he has lived since he was a small child, and says that it would devastating for all of the family if he were not allowed to stay. She sees the appellant four or five times a week. He lives only ten minutes away with her mother and maternal grandmother, and is a big part of her life. It would be very hard for her to send money to the appellant in Zimbabwe although she would try if she had to do so.
14. The last time she returned to Zimbabwe was for a summer holiday in about 2005 with her brother to stay with her maternal grandmother. She does not believe her mother has been to Zimbabwe in recent times, but she did think she had been to Zambia to see her sisters. She believes that the appellant lost his passport sometime prior to the applications they made in 2018. She had managed to renew her passport at the Zimbabwean embassy whilst she has lived in the UK but was uncertain whether she had needed an ID card to do this.
15. The appellant’s maternal grandmother, Mrs Avril Miller, attended the Tribunal and gave evidence. In short summary her evidence, from her statement and oral evidence, is as follows. She says that the family recognise that the appellant broke the law but that now, with their support, he is a decent and law-abiding member of society. The appellant was badly affected by the horrible home environment the appellant had to endure due to the toxic relationship between his parents at the time of his offending, and particularly he was very angry towards his father who had badly let the family down. She asks that the appellant be allowed to remain with his family who are all very upset about the possibility of losing him. She spoke about how, when she first came to the UK, she could not get on with the appellant and they were not close as they disagreed a lot as they were culturally very different as he did not have an African mindset, but now they have become very close and there has been an amazing change. She finds it hard to say but she is glad he was sent to prison because he learned that crime does not pay, and he is now a better person. She works as a carer and contributes to the household, but does not give the appellant money regularly to support him.
16. She explained that she had come to the UK because her daughter had wanted her too as her daughter was supporting her financially in Zimbabwe due to the economic situation there and it was too expensive – and in the UK she knew she would be able to work. She came via an ancestry visa in 2017, as her grandfather was a British citizen. She has one brother in the UK and two sisters in South Africa. Three of her four children live in Zambia, and her daughter, the mother of the appellant, lives in the UK. She has no relatives in Zimbabwe. She explained that her husband came to the UK in June 2021, and she accepted that she had given evidence that there were no relatives in Zimbabwe at the last appeal which was heard in October 2019. Her recollection of his movements was that her husband had lived in Zimbabwe until the end of 2017 when he went to Zambia to stay with their daughters. He was trying to get back his Zambian nationality which he had to renounce when he married her and became Zimbabwean. He stayed there until approximately the end of June 2018 when he returned to Zimbabwe, where he stayed until about June 2019. He then went back to Zambia for a couple of years. He could not sort out his Zambian citizenship so came to the UK, and he now lives with her, her daughter and the appellant.
17. She firmly believes that the appellant could not go and live in Zimbabwe as the mentality is so different and he would have no one to help him there. She believes he would be in danger there. The cost of living is now ridiculously high: when she left in 2017 it would have cost around 700 or 800 US dollars a month to rent a flat with another 100 US dollars for food. The house she and her husband rented cost 1500 US dollars a month. They had their own business which had paid the rent, but it was workshop dealing with farmers and when they left the business folded. They no longer rent the house so there is no family home in Zimbabwe.
18. The appellant’s paternal grandmother, Mrs Elaine Selyer, sets out in her statement as follows. She says that the appellant has grown up in a close family environment in the Milton Keynes area where she lives with her three children and six grandchildren. She sees the appellant every week, along with his sister and mother, and they all have a close relationship, and he help her with medical and mobility issues. She says that the appellant’s criminal behaviour started with the break-up of his parents’ marriage. He sought companionship from friends who led him into criminal activities, and to behaviour which was out of character from the sweet, considerate and loving grandchild she has known. She argues that he should not be deported to Zimbabwe as he has lived in the UK all of his life, and has all of his extended family here and they all have close relationships. He has no one in Zimbabwe and it is a country with severe economic hardship and political unrest, which will deny him a future.
19. Mr Melvin made submissions for the respondent, relying upon the skeleton argument of his colleague, Ms Cunha, and also making oral submissions. In short summary it is argued as follows. It is argued that the appellant’s deportation would be proportionate given his criminal convictions for serious offences. He was convicted of a number of offences between 2013 to 2018, which culminated in a 26 month sentence: 12 months for affray and 14 months for a breaching a previous suspended sentence. The appellant’s offending led to potentially fatal harm to an innocent member of the public.
20. It is accepted that the appellant has been lawfully present in the UK for most of his life.
21. It is argued that the appellant is not socially and culturally integrated in the UK due to his criminal convictions. As a result of these convictions he has not accepted the core values, ideas, customs and social behaviour expected in the UK. It is acknowledged that alone offending behaviour and time in prison alone cannot destroy the social integration of someone whose entire social identity has been formed in the UK, as per CI (Nigeria) v SSHD [2019] EWCA Civ 2027, but it is still a relevant consideration, particularly as the appellant did not enter an early guilty plea but waited until later when he had viewed the CCTV evidence against him. It is argued that the fact the appellant speaks English, and has been educated in the UK is not sufficient in these circumstances.
22. It is considered that the appellant is an independent adult who can live away from his family, and keep in contact with them, and friends in the UK, via modern means of communication. It is argued that the appellant has acquired education and work skills in the UK which he can use in Zimbabwe, and that there are no cultural, linguistic or language barriers to his re-integration in Zimbabwean society as his immediate family are all from Zimbabwe and English is widely spoken there. It is argued that he would be enough of an insider if he went to live there. It is accepted that he has no direct familial ties in Zimbabwe but that, on its own, is not a very significant obstacle to integration, particularly as his grandmother, who left in 2017, and her husband, who left in 2021, would have some links which could assist him. The appellant has some GCSEs and bricklaying qualifications, and would be able to obtain employment in Zimbabwe as a healthy young man with some UK work experience in warehouses and McDonalds even given the high unemployment in Zimbabwe. It is not accepted that the appellant would have no real financial support from his UK family, and there is no good evidence of the cost of living in Harare to show that the amounts they could send would not support him. The expert evidence of Dr Clayton should not be given weight as it does not comply with the requirements for expert reports set out by the Upper Tribunal, and further she is not an expert on Zimbabwe. It is not accepted that the appellant has lost his Zimbabwean passport as there is no documentary evidence of this being reported to the Zimbabwean Embassy and his sister renewed her passport in the UK. Further there is no evidence that a lost passport would lead to difficulties with his integration. or that he would be at any risk of stigmatisation from his English accent or lack of political connections in Zimbabwe.
23. It is not accepted that there are any very compelling circumstances over and above the exceptions which would outweigh the public interests in light of the appellant’s serious convictions.
24. Mr Tapfumaneyi made oral submissions, and argued that the appeal should be allowed, in short summary, for the following reasons. It is argued that the appellant’s criminal convictions are outweighed by his private life ties to the UK, his having lived lawfully in the UK since he was five years old. It is argued that the public interest in his deportation is reduced by the fact that he no longer poses a risk of re-offending as he has cut off his ties with the bad company he kept during his parent’s separation and ceased to be a drug user, and his reoffending risk is now assessed by his probation officer as low. It is said that the appellant has reintegrated himself into society, and engaged positively with the probation service. He clearly speaks English, and is of English ancestry so has cultural links with the UK within his family even if they were/are of Zimbabwean nationality. He has all of his extended family in the UK and has unusually strong family bonds with his mother, sister and grandmothers. He has been educated and worked in the UK.
25. It is submitted that he would have very significant obstacles to integration in Zimbabwe, a country he does not know, and which is in a very poor state with threats of political violence and economic collapse, with 800% inflation and 90% unemployment. It is argued that I should place weight on the report of Professor Clayton and the other country of origin reports in the supplementary bundle which show Zimbabwe to be a desperate, hostile and violent place. It is argued that without family and a home the appellant could not survive, particularly as since the Covid 19 pandemic half of those in Zimbabwe live in extreme poverty. It is argued that I should accept that there are no family in Zimbabwe to assist the appellant, and that the evidence was correct at the last hearing as the maternal step-grandfather was going backwards and forwards to Zambia at that time and not living permanently in Zimbabwe. The UK family could not send funds to assist which would enable the appellant to live in Zimbabwe without working as prices are very high there and the family in the UK are in low paid occupations such as hairdressing and care work.
26. At the end of the hearing I reserved my decision.
Conclusions - Remaking
27. There is no doubt that the appellant is a foreign criminal and that the public interest therefore requires his deportation unless he is able to show that he falls within one of the exceptions set out at s.117C of the Nationality, Immigration and Asylum Act 2002, or that there are very compelling compassionate circumstances over and above those exceptions. I will look first to see whether the appellant is able to fulfil the private life exception to deportation.
28. As set out at s. 117C(4) of the Nationality, Immigration and Asylum Act Exception 1 to deportation applies if the appellant has (a) been lawfully resident in the UK for most of his life; (b) is socially and culturally integrated in the UK; and (c) there would be very significant obstacles to his integration in Zimbabwe.
29. It is accepted by the respondent that the appellant has been lawfully resident in the UK for most of his life so I find (a) is satisfied.
30. I turn now to s.117C(4) (b). In CI (Nigeria) v SSHD guidance was given with respect to the issue of whether an appellant is socially and culturally integrated as follows:
“[ 77] …. The judge should simply have asked whether – having regard to his upbringing, education, employment history, history of criminal offending and imprisonment, relationships with family and friends, lifestyle and any other relevant factors – CI was at the time of the hearing socially and culturally integrated in the UK. The judge should not, as he appears to have done, have treated CI ‘s offending and imprisonment as having severed his social and cultural ties with the UK through its very nature, irrespective of its actual effects on CI’s relationships and affiliations – and then required him to demonstrate that integrative links had since been “re-formed”.
31. I find that the evidence of the appellant and his witnesses is generally evidence on which I can place weight. There was a broad consistency in the evidence both in the statements and that given orally, both for each witness and across their evidence. The witnesses all answered questions put to them as fully as they were able, and with care, giving indications when they were uncertain, and I find they did their utmost to assist the Upper Tribunal. None of the witnesses tried to excuse or belittle the appellant’s history of offending. The evidence was clearly heartfelt, particularly from the appellant’s maternal grandmother. I do not find that the witnesses told untruths at the previous hearing in 2019 about there being no family in Zimbabwe with respect to the appellant’s step maternal grandfather. I find, on the totality of the evidence, that he was no longer based in Zimbabwe at the time of the appeal, and was probably in Zambia at the time the appeal was heard in October 2019, based on his wife’s evidence, although he did return to Zimbabwe from time to time whilst trying to recover his Zambian citizenship with a view to basing himself in Zambia, where his three children live, before eventually giving up this quest and joining his wife with his step-daughter in the UK in 2021.
32. I do however find that the witness evidence was not sufficient for me to find that the appellant has lost his Zimbabwean passport. This is because there is in fact no evidence (written or oral) from the appellant himself that this was the case, and only the vague evidence of other family members which, as Mr Melvin, has pointed out, is not supported by any documentary evidence of reports either to the British police or Zimbabwean authorities with respect to its loss. Further it appears that the original passport was submitted to the respondent on 21st May 2018 by PT Law Associates with his application for indefinite leave to remain, as reflecting at page A32 of the respondent’s bundle, and so the passport may still be with the respondent rather than lost. The passport copy, which appears in the respondent’s bundle at A39-42, is very poor but is of a document issued in August 2003 and expiring in August 2008. It appears therefore that it has not been renewed whilst the appellant has been in the UK, and it is possible that this was not done due to his lack of an ID card. In any case the issue is irrelevant for this appeal as there is no evidence or submissions as to how loss of a passport would be relevant to the issues I must determine.
33. The evidence in this appeal is that the appellant had grown up in the UK entirely since his arrival at the age of four years in January 2004 and has, except for a summer holiday in 2004 (from the date stamps in his passport), when he would have been five years old, never left. He has had his entire education in the UK, acquiring some BTEC level 1 & 2 qualifications in sport and construction, including bricklaying, cooking and some level 1 functional skills AQA certificates in maths and English. He has also worked for a few months for McDonalds and in warehouses in this country. His only language is English. The evidence is that he had never supported or cared for himself outside of the family home in Milton Keynes, which he shared initially with both of his parents and sister, and now lives in with his mother, maternal grandmother and her husband except for the time, a period of some 13 months, he spent in prison. His extended family all lives in the Milton Keynes area: his father and his new partner and his two very young half-siblings; his paternal grandmother, his uncles and cousins. They are all lawfully present, and are either British or Zimbabwean, and as Mr Tapfumaneyi has submitted the appellant, his mother and maternal grandmother have British ancestry. I find that the appellant has a strong family bond with his mother, his father and step-siblings, his sister and his grandmothers, and has a strong support network from this family, and that he visits those members he does not live with very frequently, and that his social life revolves around his family.
34. I find on the evidence of the convictions, the appellant and the witnesses that the appellant went through a period of five years juvenile delinquency when he associated with an anti-social group of friends, between the ages of 13 and 19 years, and that this was triggered by unhappiness at home during the breakdown in his parents’ marriage. During this period the appellant was convicted of the following offences: burglary and theft of a bicycle; robbery/attempted robbery; the possession and intent to supply of class A drugs; and affray. His custodial sentence resulted from the conviction for affray which partially activated a suspended sentence in relation to the drugs convictions. It goes without saying that these offences are serious ones, particularly the drugs dealing and the violent affray in which the appellant attacked an innocent person whilst drunk at night in such a way as it could have resulted in serious injury or death. I find however that being sent to prison caused the appellant to re-assess his life trajectory, and to break off contact with this group, reject their lifestyle, and re-align himself with his family. On the facts of this case, therefore, the time the appellant spent in prison caused him to rethink his life and realign himself to with pro-social attitudes. I find that he has spent his time since being released from prison in September 2019, a period of two and a half years, helping out his family members with chores and DIY, babysitting, gardening and caring for his elderly paternal grandmother in exchange for small amounts of money. I find that he has realigned himself with his family’s ethic of decency and hard work, and will seek lawful work if and when he is allowed to remain in the UK, and is at low risk of reoffending. I find at the time of the hearing before me, on consideration of all of the evidence, that the appellant is socially and culturally integrated in the UK given his positive pro-social behaviour since starting his prison sentence in August 2018 and his period of positive integration as a very young child of five years until thirteen years, and in light of his schooling and work in this country. I find that the appellant has shown before me that he accepts and assumes the customs, culture, core values and social behaviour of the UK, as per the guidance from the Court of Appeal in Binbuga v SSHD [2019] EWCA Civ 551.
35. I now move on to consider whether the appellant can satisfy the final requirement of the private life exception to deportation at s.117C(4)(c), namely whether he can show that he would have very significant obstacles to integration if returned to Zimbabwe. The ultimate question I must answer is whether on return to Zimbabwe the appellant would be enough of an insider to have a meaningful private life, as per the Court of Appeal in SSHD v Kamara [2016] EWCA Civ 813.
36. I find that the appellant would be returning to a country he does not know and has no recollection of living in. The evidence of the appellant’s maternal grandmother leads me to conclude that return to Zimbabwe would undoubtedly be a culture shock to the appellant, as she gave highly credible evidence of the different mindset she and he had when she arrived from Zimbabwe, but this, of itself, would not amount to very significant obstacles to integration, as per SSHD v Olarewaju [2018] EWCA Civ 557. The appellant would have the disadvantage of not speaking any local languages, but I accept that English is widely used and understood in Zimbabwe. I find that the appellant only has very basic low-level qualifications, and only a small amount of work experience in warehouses and a fast-food restaurant. He is also a young person who has never lived away from his family. He is however fit and personable, and in a buoyant labour market such as the UK I have no doubt would find manual or unskilled work and be able to earn some money to support himself. I find however he would have no extended family or friends to turn to in Zimbabwe for financial support or support providing accommodation. This is because I find, on the witness evidence before me, that all close family members now live in the UK, and other extended family have left Zimbabwe due to the political and economic difficulties in that country and now live in Zambia, South Africa and Australia. There would be no family home that he could live in as I accept the evidence that it was a rented property, which was given up when the appellant’s maternal grandmother came to the UK and his step maternal grandfather tried to re-establish his Zambian citizenship rights. I find that the appellant’s family could send some money to assist him with living expenses in Zimbabwe, as they have been doing by way of pocket money for chores in the UK, but this would be a maximum combined amount of around £500 a month, as they are all working in low paid sectors such as care work and hairdressing.
37. I now place the above findings in relation to the appellant in the context of the country of origin situation in Zimbabwe.
38. I do not give any weigh to the report of Professor Clayton as the report fails to comply with the Senior Presidents Practice Directions on expert evidence as there is no statement of truth and no statement that the expert understands and has complied with her duty to the Tribunal. It is also unclear what documents the expert was provided with by PT Law & Associates. In any case whilst Professor Clayton may be an expert on asylum policy that is an expertise which is not relevant to the determination of this appeal as she is not an expert on Zimbabwe.
39. The most recent Zimbabwe CPIN, dated September 2021, from the respondent describes the economic and political situation in Zimbabwe as fragile at paragraph 2.4.1. At paragraph 2.4.9 there is reference to the heavy handed and partisan enforcement of Covid regulations. At 3.1.2 the CPIN cites the International Crisis briefing of December 2020: “Three years after a coup ended Robert Mugabe’s rule, the situation in Zimbabwe has gone from bad to worse, as political tensions mount, the economy falls apart and the population faces hunger and Covid-19. Having signalled a desire to stabilise the economy and ease repression, President Emmerson Mnangagwa has disappointed.” The appellant has provided a number of articles on Zimbabwe which support this view. I find that the IOM document from September 2020 with respect to the return of Zimbabwean migrants to do be pertinent. It states: “In the Zimbabwean context, those returning will encounter a deteriorating economic situation, exacerbated by a debilitating liquidity crunch, foreign currency shortages, rising inflation, spiralling basic commodity prices, erosion of disposable incomes, high unemployment, lack of institutional finance and poor social safety nets.” In the Guardian Article of 21st June 2021 “Half of Zimbabweans fell into extreme poverty during Covid” it is noted that 7.9 million Zimbabweans (out of a population of about 15 million) are in extreme poverty, which means that they live under the food poverty line of £21 per month.
40. Ultimately, on consideration of all of the evidence, I find that the appellant would have very significant obstacles to integration if he were to return to Zimbabwe, as I find that he would not be able to establish a meaningful private life in that country. I find that his low-level qualifications and minimal work experience would not suffice for him to obtain employment in a country where there is such a high level of unemployment, and in circumstances where he is returning to a country where he has no family or friends. It is possible that his step-grandfather might have some acquaintances but I do not find it probable that they would be willing or able to assist the appellant, who is not a blood relative of this gentleman, particularly as I have found that this gentleman has not been based properly in Zimbabwe for many years, and because half of the population are living in absolute poverty and struggling to survive themselves and so are unlikely to be able to assist a stranger who is being forced to return due to a criminal past, a fact that I find would have to be explained were the step-grandfather to try to find such help. I find that I can place weight on the consistent evidence of the appellant’s mother and grandmother as to the cost of renting a flat and food in Harare, being in the region of 800 US dollars a month, which would be considerably more than the maximum amount of £500 a month I have found the family would probably be able to send to the appellant to support him from their UK work. I note, in this connection, that the appellant’s grandmother came to the UK in part because her daughter could not afford to support her in Zimbabwe. I find therefore that the appellant would probably be without accommodation and without work, and would definitely be without friends and family. I find that he would struggle to have any sort of social life without the social support of his family with whom he has lived all of his life bar the 13 months he spent in prison, as I find that he is not a person who has experienced independent living and because his social life currently revolves around his close and extended family in the UK. I note in this connection that his family do not have a history of visiting Zimbabwe in the past ten years, and that whilst some contact could normally be maintained via modern means of communication this would be complicated by the homelessness I have found it is probable that the appellant would face, and power cuts, and so would leave him very largely without this form of private life too.
41. As I find that the appellant is able to satisfy the private life exception to deportation at s.117C(4) of the 2002 Act he succeeds in his appeal as the interference with his Article 8 ECHR rights that his deportation would represent is disproportionate. This is because the statutory framework states that the public interest does not require his deportation if he can show an exception applies. Given this finding there is no need for me to go on and consider whether there are very compelling and compassionate matters over and above the exceptions to deportation.

Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law.
2. The decision of the First-tier Tribunal dismissing the Article 8 ECHR appeal, and all the findings except those relating to the asylum claim were set side.
3. The appeal is remade by allowing it on Article 8 ECHR grounds.

Signed: Fiona Lindsley

Upper Tribunal Judge Lindsley

Dated: 11th April 2022

Annex A: Error of Law Decision

DECISION AND REASONS
Introduction
1. The appellant Shaqwill Selyer, who was born in 1999 in Zimbabwe, came to the UK in January 2004 to join his parents. He was given leave to remain until November 2007 and thereafter granted further periods of leave in 2012, 2015 and 2018. He made a further application for leave to remain in May 2018. Until he was aged 14 there appear to have been no incidents in the appellant’s life that brought him to the attention of the authorities.
2. Between 2013 and 2018 he acquired 4 convictions, the last, on 10 August 2018 at Northampton Crown Court, following an incident in December 2017. This was an affray in which the appellant and three others pursued another young man down the street and set about him with kicks and punches at about 3 o’clock in the morning. The appellant, who pleaded guilty at trial, acknowledged that what was shown on the CCTV at trial was shocking, and expressed remorse and regret. It appears from the sentencing remarks that he, together with the other three who had pleaded guilty at an early stage, were all drunk.
3. The judge imposed a nine-month sentence upon the appellant but also activated a suspended sentence in respect of which the appellant was in breach. A drug rehabilitation order and an order to do unpaid work and rehabilitation activity had previously been imposed by Oxford Crown Court in September 2017. Fourteen months of the original suspended 24 -month sentence was activated.
4. On 23 August 2018 the respondent served the appellant with a notice of intention to deport and a deportation order was made on 1 November 2018. The appellant then made an asylum claim, and the claim for humanitarian protection and article 8 protection. The asylum claim was refused on 2 July 2019. The appellant was released from custody on 9 September 2019.
5. An appeal was brought against 2 decisions, the refusal on 5 November 2018 to accept an asylum claim and the refusal on 2 July 2019 to accept a human rights claim. That appeal was refused on both grounds by the First-tier Tribunal on 25 October 2019.
6. The deportation had been expressed to be conducive to the public good in accordance with section 32 (5) of the UK Borders Act 2007 and the Secretary of State declined to accept that the appellant met the criteria set out in paragraph 399 and 399A of the Immigration Rules in respect of the private life exception to deportation. That is to say, the appellant was unable to bring himself within the following provisions of the Rules:
“A398
These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applied for a deportation order made against him to be revoked.
Where…
(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 four years but at least 12 months;
the Secretary of State in assessing the claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraph … 399 A
…
399A.
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; 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.”
7. As the respondent accepted that the appellant had been lawfully resident most of his life in the UK, the issues before the First-tier Tribunal centred upon 399A(b) and (c), and also whether there were very compelling circumstances over and above the exceptions to deportation set out at IR paragraph 398.
Outline Conclusion
8. We have come to the conclusion that the decision of the First-tier Tribunal as to the asylum claim cannot be impugned.
9. However, we have also concluded that there were errors of law in the assessment of the human rights claim which cannot at this stage be dismissed as immaterial. We have, accordingly, directed that a re-making hearing will take place confined to the human rights issue and the findings by the First-tier Tribunal on that issue alone.
10. It seems to us, that the findings on the human rights issues, generally, have the potential to be relevant to both of the criteria articulated in IR 399A that were in issue, and we also cannot rule out that, applying the law correctly to the evidential material then before the Tribunal, it will be impossible for the Appellant to make out his case under both criteria under IR paragraphs 399A or 398.
11. The reasons for our decision are as follows.
Background
12. The Secretary of State, and indeed the Tribunal, accepted the Appellant had been lawfully resident in the UK for most of his life. The Secretary of State concluded that the behaviour of the Appellant namely five convictions for eight offences since 2013 including the last offence meant “he had been unable to demonstrate social integration into the British way of life”. Put shortly, the Secretary of State held that the Appellant had continued to be exposed to and influenced by Zimbabwean cultural norms through his family here, English was the first language in Zimbabwe and therefore not a problem, accordingly it was not accepted there would be very significant obstacles to his integration on return to Zimbabwe.
13. The Secretary of State had indicated that the appellant had not adduced evidence indicating it would be impossible or exceptionally difficult for him to integrate successfully, only that it might entail practical difficulties. The Secretary of State also said there was no evidence of elements of dependency beyond normal emotional ties and therefore no family life in the sense understood under article 8 and the First tier Tribunal accepted that submission.
14. Material from the asylum claim, which was rejected, included the Claimant’s assertion he had no family in Zimbabwe and didn’t know anybody else.
15. The learned Judge at the First-tier Tribunal recorded (beginning at paragraph 44) the evidence that was before him. Included in that evidence was the appellant’s statement that he had lived at home until he was 16, although he had lived elsewhere for a couple weeks but then returned home. The evidence by him and on his behalf was recorded as including on more than one occasion that he had no family or friends in Zimbabwe and had nowhere to stay there (paragraphs 58, 63, 65) including from Tanisha Selyer, the mother of Shaqwill Selyer who said no one had been back to Zimbabwe since 2004, except for the paternal grandmother.
16. When dealing with the humanitarian protection issue, the Judge recorded that the respondent submitted the appellant was excluded from humanitarian protection because he constituted a danger to the community. The Judge accepted the appellant’s evidence of being affected by his periods of imprisonment and said it was arguable he had successfully rebutted the presumption that he was a danger to the community through his evidence of intention and assurance regarding his rehabilitation.
17. The Judge recorded that the Secretary of State had said the lack of evidence of the whereabouts of the extended family led him to conclude that there was in fact an extended family living in Zimbabwe, and noted that in spite of being on notice, there had been no further evidence put in about extended family members. It was likely some still lived in Zimbabwe and that a network of their friends or contacts could support the Appellant. There was also his family in the UK who could be supportive there.
18. The Judge also said ([81]) that it was not unduly harsh even if he had to relocate to another part Zimbabwe if he were unable to return to his own family home area.
19. The Judge then considered the issue of integration and in paragraph [85] found that the appellant was not socially and culturally integrated in the UK. He said he took into account in Binbuga v SSHD [2019], describing it as a case “in which the Court of Appeal rejected the suggestion that the person associated with gang was integrated, albeit into one of the less savoury aspects of life in the UK”.
20. The Judge cited a passage of that judgment at paragraph 56; it begins thus:
“56 Membership of a pro-criminal gang tells against rather than for social integration. In this context, social integration referred to the extent to which foreign criminal has become incorporated within the law. Structure of the UK. This includes various incidents of society such as clubs, societies, workplaces or places of study, but not associated with pro-criminal.”
21. The Judge then continued, that whilst the appellant’s group was not described as a gang, it was clearly an anti-social group of people. He considered that to be evidence of the appellant’s lack of social integration.
22. The Judge accepted some evidence of integration but continued thus: “He has also been in the UK since he was five years old and had received his education in the UK. However, this must be considered in the context of his continued and repeated involvement in overtly anti-social behaviour since 2011.”
23. The judge then expressly accepted the submission of the Home Office Representative at the hearing that the Appellant was not socially and culturally integrated in the UK.
24. The Judge went on to consider the issue of very significant obstacles to integration into Zimbabwe.
25. In dismissing the argument that there were very significant obstacles to his integration in Zimbabwe he recognised that the immediate family were in the UK. In so finding the judge expressed himself as follows:
“89 In finding that there are not very significant obstacles to his integration into Zimbabwe, I recognise that the appellant immediate family members live in the UK, and that he may have little or no contact with any wider family members or their friends in Zimbabwe, as he was only five years old when he left, although it is only two years since his grandmother left.”
26. The Judge then considered whether there were “very compelling circumstances” over and above those described in paragraph 399A.
27. He dismissed the “very compelling circumstances” by reference to KO (Nigeria) and others v Secretary of State for the Home Department (Respondent) [2018] UK FC 53 in which the Supreme Court held that a foreign criminal facing deportation was not altogether disentitled from seeking to rely on matters falling within the scope of Exceptions 1and 2 in section 117C of the Nationality Immigration and Asylum Act 2002, but is required to point to features of a kind mentioned in those exceptions, or features falling outside them, which made the article 8 case especially strong. (Those exceptions are, of course, provisions which are mirrored here.)
28. This element is considered to the extent that the Judge of the First-tier Tribunal said he took into account the support from the family and their fear he would not be able to cope in Zimbabwe – however, it would seem without further explanation he dismisses the factors in the case as being exceptional so as to amount to “a very compelling circumstances”.
Error of Law and Our Concerns
29. In our judgement, the reliance upon Binbuga v SSHD is inapt in the present context and appears to have led the Judge into error. The case is not authority for the proposition that offending and imprisonment, and “overtly antisocial behaviour”, in the presence of a continued childhood and domestic life, education and upbringing within the UK, are a decisive factor indicating lack of cultural integration here.
30. The context in which the issue arose in Binbuga was following a Secretary of State’s appeal against a finding by the Tribunal that being a member of a criminal gang was positive evidence of integration. The passage from the First- tier Tribunal with which the Secretary of State took issue in that case was as follows:
“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."
31. It was that that the Court of Appeal disavowed; and that is why they held that membership told against rather than for social integration.
32. Indeed, in CI (Nigeria) v SSHD [2019] EWCA Civ 2027 guidance was given with respect to the issue of integration as follows:
“[ 77] …. The judge should simply have asked whether – having regard to his upbringing, education, employment history, history of criminal offending and imprisonment, relationships with family and friends, lifestyle and any other relevant factors – CI was at the time of the hearing socially and culturally integrated in the UK. The judge should not, as he appears to have done, have treated CI ‘s offending and imprisonment as having severed his social and cultural ties with the UK through its very nature, irrespective of its actual effects on CI’s relationships and affiliations – and then required him to demonstrate that integrative links had since been “re-formed”.
33. The learned Judge also considered the submission that the appellant had established the existence of a family life in the UK. The Judge’s reasoning, when rejecting that proposition was contained in paragraph 95 thus: “Although he has said he is close to his family member,[sic] I find that he has not established the existence of a family life in the UK, over and above the normal ties between adult family members.”
34. The evidence showed that the appellant had grown up entirely within the family unit in the UK since his arrival at age 5 and had, except for 2 weeks absence, never left it other than when recently imprisoned. The evidence was he was effectively dependent in that he had never supported himself, or cared for himself outside the home; further, that all his family was here in the UK where his formative years and early adult life had been spent. The submission on his behalf was that he had an unusually strong family bond ([28]) with his mother, his sister and his grandmothers (all of whom gave evidence) , and a strong support network ([36]).
35. In these circumstances we are of the view that there is a failure of reasoning in this part of the Decision.
36. The approach taken by the judge in the present case appears to us therefore to be in error. The basis for this view is in summary:
a. The judge formed his view that there were not very significant obstacles to the appellant’s integration in Zimbabwe even though, he had left at the age of five, and he might have no contact with any wider family members or friends in Zimbabwe ([89]). The appellant is a young man who has never lived away from the care of his family, never fended for himself, significantly, and was serving a custodial sentence for the first time in his life – and for the first time as an adult.
b. The Judge approached the issue of integration in an erroneous manner, by treating the fact that there were four perpetrators in the affray for which he was convicted in the index offence, as positive evidence of the absence of social and cultural ties with the UK, whereas the appellant had been here since the age of five, was educated wholly here, and obtained qualifications from school and had known no other cultural environment, and had, albeit for a short time, had a job after leaving school in the UK.
c. The Judge fell into error in failing to give reasons why he rejected the submission that the applicant had a family life in the requisite sense.
d. Given the overlap between the issues that arise in cases of this nature, it is impossible to be confident that, were the issues decided to be approached correctly, they might not produce a finding that there were in any event, “very compelling circumstances”.
37. For these reasons, the decision of the First-tier Tribunal is set aside for an error of law and a re- making hearing has been directed.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law.
2. We hereby set aside the decision of the First-tier Tribunal and all the findings except those relating to the asylum claim.
3. We adjourn the re-making hearing.
DIRECTIONS
1. The parties should file and serve any updating material and a short skeleton argument 10 days prior hearing date

Signed Date

The Hon. Mrs Justice Foster sitting as an Upper Tribunal Judge.