The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/24342/2016


Heard at Field House
Decision & Reasons Promulgated
On 30 August 2019
On 05 September 2019






For the Appellant: In person
For the Respondent: Mr. N. Bramble, Senior Presenting Officer

1. This is an appeal brought by the respondent. However, for convenience I will refer to the parties hereinafter as they appeared in the First-tier Tribunal.
2. The respondent appeals against the decision of First-tier Tribunal Judge Wilding ('the Judge'), issued on 3 July 2019, by which the appellant's appeal against a decision of the respondent to refuse him leave to remain in this country on human rights grounds and to deport him to Jamaica was allowed.
3. Judge of the First-tier Tribunal Buchanan granted permission to appeal on all grounds.

4. The Judge did not issue an anonymity order and no order was not sought before me.

5. The appellant is a national of Jamaica and aged 28. He accompanied his siblings to the United Kingdom in July 2000, when aged 9, and was granted 6 months leave to enter as a visitor. He travelled to this country to meet relatives whilst his parents remained in Jamaica. He was subsequently granted limited leave to remain from November 2004 and secured indefinite leave to remain in December 2006, when aged 15.
6. He has several convictions commencing in October 2008 when he was aged 17. Save for the index offence, all were dealt with by way of non-custodial sentences, including four convictions post-dating the index offence which were dealt with by way of fines.
7. As to the index offence, he pleaded guilty to three counts of robbery at the Inner London Crown Court on 21 May 2012 and subsequently, on 27 February 2013, he was sentenced by HHJ Darling to a custodial sentence of 22 months. The sentencing judge noted that a knife was used in all three robberies, which were committed over a three-day period and at night.
8. Following the appellant's conviction for the index offence, the respondent issued a deportation order on 14 October 2016 with accompanying reasons dated 17 October 2016.

Hearing before the FtT
9. The appeal came before the Judge sitting at Taylor House on 5 June 2019 and was allowed by way of a decision dated 3 July 2019. The Judge observed that the sentence for the index offence was less than 4 years and he accepted that the appellant had been lawfully present in this country for over half of his life. The Judge found that the appellant enjoyed the protection of Exception 1 established by section 117C(4) of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act') and paragraph 339A of the Immigration Rules.
10. The Judge observed at [26] of his decision:
'Turning to whether the appellant is socially and culturally integrated in the UK. He arrived here as an 8-year-old (sic), he attended school here. All his family are in the UK. He has done some work. He has undertaken a large number of qualifications. On the opposite side he has 10 convictions for 16 offences between 2008 and 2016 and has an impending prosecution. Save for the index offence his criminality is very much at the lower end of the spectrum. The index offence was in 2012 and he was held on remand until trial. He was released upon sentencing given he had already served half of his sentence in May 2013. As a result, he has been out for over 6 years. It is noteworthy that this is the only occasion he has received a sentence of imprisonment. Additionally, his offences subsequent to this are of a very minor level, resulting in fines and a restraining order.'
11. He found that the appellant was not currently in a criminal gang nor had he ever been. The appellant was accepted to be culturally and socially integrated in this country. As for the existence of very significant obstacles to his integration on return to Jamaica, the Judge noted the decision of the Court of Appeal in Secretary of State for the Home Department v. Kamara [2016] EWCA Civ 813; [2016] 4 W.L.R. 152 and reasoned at [37] - [40]:
'The appellant came to the UK as an 8-year old (sic). He has been back to Jamaica once for his father's funeral in 2010. He has no family that he knows of there from either parent. Whilst he speaks English that is about all he has in terms of an ability to get by in Jamaica. He has never worked there. Never studied above primary school. Never lived there on his own. I do not consider that the appellant can properly be described as 'enough of an insider' to understand how life in Jamaica is carried on with sufficient ability and capacity to participate in it or be able to operate on a day-to-day basis. He knows nothings of life there.
I am not convinced that he would have the wherewithal to find a job or sustain himself when there. The lack of awareness of Jamaican society and culture, with no past history there to fall back on, and a lack of capacity to adapt and engage in society there leads me to conclude that the appellant will have very significant obstacles to integration on return. His deportation there will, in effect, be akin to exile given the lack of any familiarity, links, contacts and ability to participate in society there.
I have not taken this decision lightly. I have considered the significant public interest in the deportation of foreign criminals. The appellant's criminal history is not insignificant, albeit it is at the lower end. If there was a requirement to undertake a balancing exercise within the rules, then this decision may well have been different. However, nowhere in the requirements of exception 1 of the 2002 Act or in paragraph 399A of the immigration rules is there a balancing exercise to be undertaken. The public interest is factored into the test found within it. Albeit on a different provision I have considered the reasoning of their Lordships in KO (Nigeria) in which they conclude that the question of unduly harsh does not carry with it an assessment which requires the public interest being factored into it. The same must be said also for exception 1.
I therefore conclude that the appellant meets the provisions of paragraph 399A of the immigration rules and s.117C(4) of the 2002 Act (as amended). The appellant's deportation would breach his article 8 rights.'

Grounds of appeal
12. The respondent relies upon detailed grounds. As to section 117C(4) of the 2002 Act, the respondent does not take issue with the finding as to lawful residence. However, complaints are made that the Judge erred in law in considering whether the appellant is socially and culturally integrated in this country and that there would be very significant obstacles to his integration in Jamaica.
13. In granting permission to appeal JFtT Buchanan observed:
'The grounds of appeal [GOA] contend that the FTtJ arguably erred in law because (1) he did not give due consideration to lack of current social and cultural integration and (2) there are inadequate reasons given for concluding that there would be very significant obstacles to integration.
GOA1: The reference in GOA to the case of Binbuga arguably raises a requirement for this appellant to prove that he has regained social and cultural integration following upon his earlier criminal conduct which led to the decision to deport. The observations made by the FtTJ at [28] that 'criminality in of itself does not render someone incapable of showing cultural and social integration' does not specifically address the nature of criminality in which the appellant himself was concerned. He is noted to have 10 convictions for 16 offences between 2008 and 2016 and he has had minor offences post release which appear to relate to drug use. The conclusion that 'culturally and socially integrated' must be akin to whether an appellant has established a private life of some substance in the UK is arguably a factor in 'the judge's failure to have proper regard to relevant matters' in assessing social and cultural integration as contended at GOA paragraph 7.'
14. No rule 24 response was filed by the appellant.

The hearing
15. The appellant attended the hearing unrepresented. He informed me that save for having received the notice of hearing, he lacked understanding as to the nature of the proceedings. He further informed me that he had not actually seen the decision and reasons of the Judge and was not aware that he had been successful on appeal, nor that the respondent had been given permission to appeal the decision. He asked for time to read the relevant paperwork and the matter was adjourned to later in the morning so as to permit him time to read relevant papers. Upon reading the papers, the appellant was content to proceed.
16. Mr. Bramble fairly observed as to ground 1 that the author, when relying upon [57] - [58] of the judgment in Binbuga v. Secretary of State for the Home Department [2019] EWCA Civ 551 ought properly to have made reference to [60] so as to provide relevant context to the Tribunal. Mr. Bramble continued to place significant reliance upon ground 2, asserting that the Judge failed to sufficiently engage with the appellant's criminal actions.

Decision on error of law
17. Section 117C of the 2002 Act provides, inter alia:
'(3) In the case of a foreign criminal ('C') who has not been sentenced to a period of imprisonment of four years or more the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where -
a) C has been lawfully resident in the United Kingdom for most of C's life,
b) C is socially and culturally integrated in the United Kingdom, and
c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
18. Paragraphs 398 and 399A of the Immigration Rules provide, inter alia:
'398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; ...

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.'
19. I announced at the hearing that the respondent's appeal on ground 1 was dismissed, but a material error of law was established in relation to ground 2.
20. By way of ground 1, the respondent complained as to the Judge's approach to the question of cultural and social integration. Criticism is made as to the purported failure to give due consideration to the appellant's anti-social behavior and lack of current social and cultural integration.
21. The Judge reasoned at [28] - [32]
'As to the second point regarding his general criminality it has not been explained to me why or indeed how the appellant is prohibited from showing cultural and social integration because he has previous convictions. I accept that committing serious criminal offences which attract significant periods of imprisonment do not positively point towards social and cultural integration, however criminality in of itself does not render someone incapable of showing cultural and social integration.
In this case there are positive factors going towards his social and cultural integration. He has studied here, including doing a series of courses in order to help him into employment. He has also found employment and was working for a period of time, however that was taken away from him when the respondent made the decision to deport and he was thereafter no longer allowed to work. This has been somewhat counterproductive. The respondent quite understandably wants to remove those people who commit serious crime and who have no right to be in the UK. This appellant had indefinite leave to remain, that leave continues to run up to the point that this appeal has concluded. By taking away his right to work the respondent has played a part in the vicious circle which the appellant finds himself in. Despite that he committed no further significant offences since being released. His minor offences post release all amount to issues surrounding his drug use which on his own evidence, which I accept, stems from the feeling of helplessness at being unable to work, contribute and play a part in his family home and wider society.
His lawful status for the majority of his life is an indicator as to that integration. The fact he was schooled up to senior school level, and then has undertaken a series of qualifications goes a long way to show a further establishment of such integration. Furthermore, the appellant has undertaken work here.
Additionally, his family are all here. Whilst, as outlined above, I am not able to find he has a family life with them for the purposes of article 8, their presence here is a feature of the appellant's private life and goes to his social and cultural integration given those ties here. I am also told they are all British, this was not disputed, and given the appellant was refused nationality in 2008 on character grounds I accept that it is likely his family members all have British nationality. This further goes towards the ties he has here and is of some, but not determinative, assistance in his own integration.
Taking all of that into consideration I conclude that the appellant is culturally and socially integrated here.'
22. The respondent seeks by way of her grounds to establish criminal behaviour as being enough in its own right to establish a lack of cultural and social integration, asserting that 'at [28] the Judge finds that the appellant's previous convictions do not render someone incapable of showing cultural and social integration, but this is contrary to the findings in Binbuga (at [57] - [58]). The grounds of challenge do not accurately reflect the Court of Appeal's decision. The Court of Appeal in Binbuga confirmed that social and cultural integration in this country connoted integration as a law-abiding citizen, the continuity of which might be broken by criminal activity. I further observe that if the respondent's position were the case, there would be no requirement for section 117C(4) of the 2002 Act and paragraph 399A(b) of the Rules. This was confirmed by the Upper Tribunal in in Tirabi (Deportation: "lawfully resident": s.5(1)) [2018] UKUT 00199 (IAC); [2018] Imm. A.R. 1180, at [15]:
'Bearing in mind again that these factors are being taken into account always in the context of the deportation of a person who has committed an offence, it is inconceivable that it could have been intended that, in any general sense, the commission of an offence would demonstrate a lack of integration.'
23. The Judge was required to undertake a fact-sensitive consideration and though some may view his finding as to cultural and social integration generous, I am satisfied that it was a decision that could be reasonably made on the evidence provided. Whilst the Judge may have erred in transposing the appellant's subjective belief that he was not entitled to work into a finding that the respondent had barred him from employment pending conclusion of his appeal, this finding of fact does not materially undermine the careful analysis of other relevant factors. By way of her grounds, the respondent has strayed into seeking to rely upon factual findings made in other, reported, decisions, without appropriately observing that each decision is fact sensitive. I am satisfied that the Judge lawfully considered the test under section 117C(4)(b) of the 2002 Act and paragraph 399A(b) of the Rules and provided cogent, sustainable reasons for finding that the appellant satisfied the requisite qualitative test and is socially and culturally integrated in this country: AM (Somalia) v. Secretary of State for the Home Department [2019] EWCA Civ 774.
24. As to the Judge's consideration of section 117C(4)(c) and paragraph 399A(c), concerned with there being very significant obstacles to the appellant's integration into Jamaica, the respondent complains by means of her grounds of appeal:
'Insofar as the appellant facing 'very significant obstacles' to integration if removed to Jamaica, the judge relies on paragraph 14 of Secretary of State for the Home Department v. Kamara [2016] EWCA Civ 813, to find the appellant would not have the ability to get by in Jamaica. However, this has been done without reference to Mwesezi v. Secretary of State for the Home Department [2018] EWCA Civ 1104 which explains that in the case of Kamara there were very particular reasons why there would be very significant obstacles to integration in the proposed country of return - i.e. no ability to communicate in day-to-day life and in the presence of Ebola. Nothing like that can be said to apply to [the appellant], who lived in Jamaica for the first 10 years of his life and who would have no problem with language. He has transferrable skills and claims his family support him financially in the UK, so could continue to do so. The appellant comes from a Jamaican family, so contrary to the finding at [38], he would have some awareness of its society and culture. While the judge has found that returning the appellant to Jamaica would be akin to exile, Bossade at paragraph 73-74 confirms this is not the relevant issue when considering the terms of 339A(c) of the Rules.
The respondent submits that nothing other than the usual initial difficulties faced by a person moving to a new country have been highlighted here, certainly nothing that can be said to amount to facing 'very significant obstacles' to re-integration.'
25. In Mwesezi, Sales LJ sought at [26] to explain the factual conclusion that he reached in Kamara but he did not resile from the principle confirmed by that judgment, at [14], namely that the concept of a foreign criminal's 'integration' into the country to which it is proposed that he be deported is a broad one and it is not confined to the mere ability to find a job or to sustain life while living in the other country.
26. I have sympathy for the Judge who sought to address this issue with very limited aid from the appellant, who was unrepresented, and in circumstances where the appellant had asked his family not to attend because he felt he was causing them problems. Care was taken by the Judge to address the requirement of section 117C(4)(c) and paragraph 399A(c) on the evidence presented. However, I accept the respondent's contention that the Judge materially erred at [38] when failing to weigh in his assessment the appellant's connection to Jamaican culture whilst residing in this country. There was also a failure to engage with the appellant's return to Jamaica for his father's funeral. Whilst it could have been open to the Judge to reasonably find in the appellant's favour upon considering these relevant factors, it cannot be said that such a decision would be the only one reasonably open to the Judge and so such failure was a material error of law, infecting the assessment as to significant obstacles existing as to integration upon return to Jamaica.
27. In such circumstances, the respondent's appeal is successful on ground 2 alone.

Remittal to the First-tier Tribunal
28. At the hearing I directed that the matter be remitted to the First-tier Tribunal (IAC) sitting at Taylor House.
29. Mr. Bramble requested that the decision be remade by this Tribunal. In considering whether to remake the decision or remit to the First-tier Tribunal I was mindful that under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of 25 September 2012 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
30. I observe that the appellant was not represented either before the First-tier Tribunal or this Tribunal. I was acutely aware that the appellant had attended before me lacking a true understanding as to the nature of proceedings. He informed me that though he had previously not asked his family to attend the hearing before the FtT because he was tired of hurting his family and creating problems for them, he did not want to be deported to Jamaica and wished to now call them to give evidence on his behalf. In such circumstances, because of the nature of judicial fact finding that is to be undertaken, I decided to remit this matter to the First-tier Tribunal.

Notice of decision
31. For all of these reasons, the decision discloses an error on a point of law, namely as to the application or otherwise of section 117C(4)(c) of the 2002 Act and paragraph 399A(c) of the Immigration Rules.
32. The Judge's decision promulgated on 3 July 2019 is set aside pursuant to section 12(2)(a) of the Tribunal, Courts and Enforcement Act 2007. All findings of fact are kept save for those made in relation to whether there would be very significant obstacles to the appellant's integration in Jamaica, the country to which it is proposed he is to be deported: section 117C(4)(c) and paragraph 339A(c).
33. This matter is remitted to the First-tier Tribunal sitting at Taylor House to be heard before any judge other than JFtT Wilding.
34. No anonymity order is made

Signed: D. O'Callaghan
Upper Tribunal Judge O'Callaghan Date: 2 September 2019