Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/26282/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 October 2017
On 9 January 2018

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

M--- P--- T---
(ANONYMITY DIRECTION made)
Respondent
Representation:

For the Appellant: Mr T Wilding, Senior Home Office Presenting Officer
For the Respondent: Ms T Murshed, Counsel instructed by A B Mackenzie Solicitors
DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the respondent. Breach of this order can be punished as a contempt of court. I make this order following the example of the First-tier Tribunal because the respondent is vulnerable and any publicity may lead to his harm.
2. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal (Designated Judge of the First-tier Tribunal McCarthy) to allow the appeal of the respondent, hereinafter "the claimant", against a decision of the Secretary of State on 22 November 2016 to deport him.
1. I will endeavour to set out below in appropriate detail my understanding of the relevant law but by way of introduction I explain that Judge McCarthy allowed the appeal because the claimant is a 28-year-old man described as vulnerable who suffers from a degree of autism and who has lived in the United Kingdom since he was about 10 months old.
2. However, he is also a persistent criminal. This is not a case where the Secretary of State has rushed in to make a deportation order at the first possible opportunity but has on two occasions warned him that he risked deportation if his behaviour did not improve and the decision to deport was only made after the claimant was sent to prison for 30 months for possessing with intent to supply controlled drugs of Class B, in this case cannabis. He was also convicted of having a counterfeit currency note with dishonest intent and assaulting a police constable, for which matters he was given concurrent terms of imprisonment. Judge McCarthy noted that the respondent commenced deportation action for the fourth time after these convictions.
3. Mr Wilding, appropriately, built his case on the suitably brief grounds of appeal on which permission was sought but in extreme summary it was his case that the First-tier Tribunal had not considered properly or made clear and rational findings concerning the degree of the claimant's integration into life in the United Kingdom and the difficulties he would face in the event of his establishing himself in Malaysia. This is not an appeal under the Rules and there might be some room to debate the extent to which the consideration of the Rules is relevant. However the parties agreed, and it is plainly correct, that the Tribunal was obliged to consider Section 117C of the Nationality, Immigration and Asylum Act 2002. This is a Section that establishes as a matter of statute law that the deportation of foreign criminals is in the public interest and that the more serious the offence committed the greater the public interest in deportation. However, in the case of a person who had not been sentenced to a period of imprisonment of four years or more, and this is such a case, there are statutory exceptions to the requirement of deportation. Exception 2 is not relevant here, but Judge McCarthy found that Exception 1 applies. There are three elements in exception 1 and Mr Wilding, correctly, emphasised that they are cumulative, not alternative. They refer to the foreign criminal as "C" and Section 117C(4) says that:
"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."
4. Clearly the requirements of sub-paragraph (a) are met in this case. It is not in dispute that the claimant was born on 28 January 1989 and he was brought to the United Kingdom with permission with his parents on 19 November 1989. It follows that he was less than 10 months old when he arrived in the United Kingdom and he has lived there without any substantial absences for holiday or other reasons since then.
5. It is the Secretary of State's contention that the judge failed to ask himself properly if the claimant was socially and culturally integrated into the United Kingdom and failed to decide rationally if there would be very significant obstacles to his integration in Malaysia.
6. I consider the complaint first because that is, I find, the most straightforward. The judge said at paragraph 47 of his decision that he was satisfied that there were "very significant obstacles to the appellant integrating into Malaysia". The judge found that the claimant is a vulnerable adult whose vulnerabilities make him unable to cope on his own and that would severely impact on his ability to integrate into Malaysia. This finding is supported by evidence in particular from a Mr Peter Horrocks, an independent social worker and a Dr Rozmin Halari, a Consultant Clinical Psychologist. Together these reports show that the claimant has been treated for behavioural disorder and that he has "attention deficit and hyperactivity" for which medication was prescribed. Mr Ewart opined that the claimant should have received a formal statement of special educational needs and that his difficulties with social communication and interaction are suggestive of Autistic Spectrum Disorder. Dr Halari confirms that the claimant has difficulties with social communication and interaction and the GP's records refer to anxiety, panic attacks and depression. It was the expert's opinion that the claimant would not be able to integrate into Malaysian society without a significant degree of support. He is only able to manage to the extent that he does in the United Kingdom because of the help he receives from his parents, sister, partner and professionals.
7. The judge was, rightly, critical of the Secretary of State's decision letter which minimised the claimant's difficulties saying that she:
"acknowledged that you have previously been prescribed treatments for perceived mental health issues, that you have previously been diagnosed with ADHD, depression and you may have possible traits of autism".
8. The judge described this as "hedging language" that was not a proper analysis of the evidence. The judge was satisfied that the claimant has all of these conditions and I see no basis for challenging the judge's finding on this point which is explained more fully in paragraph 23 of his decision. Judge McCarthy was not writing a decision for public record. He was resolving a dispute between the parties. I do not criticise him for not saying more about the contents of the reports to which he refers, which were properly disclosed to the Secretary of State, which have not been met by any alternative expert evidence and which have not been challenged with any force.
9. As is to be expected in a report by a social worker, much of the content repeats the claimant's version of events, although Mr Horrocks does not treat it uncritically. At paragraph 4.7 of his report dated 25 September 2015 Mr Horrocks says:
"As a result [the claimant] does not have the basic qualities, skills, knowledge and functioning to live independently, even in the UK he will require ongoing support and intervention in terms of his daily life and functioning. [The claimant] lacks any friendship network and his only support network is his immediate family, his mother and father. They are not willing to give up on their son and are prepared to support him on an ongoing basis; they recognise that he lacks the skills and abilities to live independently and that he will remain dependent on their support on an ongoing basis. They have been through many difficult times with [the claimant], they have seen how he has damaged their home and they have experienced the pain and shame of their son being sent to prison. But they recognise that there is no alternative option."
10. Under the heading "5.0 Conclusions/Recommendations", a part of the report where Mr Horrocks is clearly expressing his professional opinion and not simply repeating instructions he says:
"5.2 [The claimant] lacks the basic skills to live independently in the UK, including self-care skills, financial management and basic communication skills and if he remains in this country, he will continue to be dependent on the support of his parents. If he was returned to Malaysia that would spell disaster for [the claimant], he has no support network there at all. The most likely and rapid outcome would be that he would end up homeless, living on the streets and foraging for food. He would be unable to find employment because he lacks the language and skills. He is also at high risk offending [(sic) of ending (?)] up in a conflict situation because of his social communication difficulties, which in turn could lead to violence and serious harm if not death. The most likely outcome if he was returned to Malaysia is that he will experience an untimely end. A return of [the claimant] to Malaysia would also in all likelihood lead to a major deterioration in the mental health problems of his girlfriend, [C], she has a history of being considered as high risk of self-harm and suicide and the trauma caused by her loss could lead to a return of this behaviour."
11. There was an update to that report dated 19 May 2017. The more recent report shows encouraging signs of improvement. The claimant appears to have benefitted from his time in prison in that it has caused him to reflect on his life and given him opportunities to improve himself. He has found a steady partner who is in the latter stages of a pregnancy. Mr Horrocks concludes his report at paragraph 4.9. He says of the claimant:
"He has a strong support network in his parents, although the enmeshed nature of their relationship with [the claimant] will lead to difficulties and arguments. He also has a partner, who knows him well and is committed to him and they are in the process of having a child together. [The claimant] is also committed to accessing the necessary support for his mental health to avoid any future problems and difficulties. [The claimant] has struggled to function in British society, where he has a good understanding of the rules and expectations of society and in an alien society the challenge will be even greater and the risks for [the claimant] will be even greater."
12. The psychologist's report is dated 17 October 2016. It is prepared by Dr Rozmin Halari whose main qualifications are being a Chartered Consultant Clinical Psychologist and an Honorary Senior Lecturer at Kings College, London.
13. Dr Halari observes that much of the claimant's criminality has been linked with his inability to understand other people's intentions and behaviour. At paragraph 127 Dr Halari says:
"[The claimant] struggles to understand people, initiate social conversation, understand other people's thoughts, intentions and behaviours and he is easily led. With these difficulties [the claimant] would struggle to get a job, seek support, find accommodation and he would struggle to understand and follow instructions because of his neurodevelopment and learning difficulties."
14. It must be remembered that there is no evidence to say that the claimant will have any help in Malaysia. The relatives are estranged and elderly. There is no basis for concluding they would have the inclination, still less the skills, necessary to give this disturbed man the support that he needs.
15. Unless there are proper reasons for going behind the expert's reports, and as far as I can see none whatsoever were advanced before Judge McCarthy who has criticised the Secretary of State for not reading them properly, there is no basis whatsoever for doubting the lawfulness of his decision that there would be "very significant obstacles" to the claimant's integration into the country to which it is proposed that he would be deported.
16. Of course, this is not the end of the matter. The judge also had to be satisfied that the claimant is "socially and culturally integrated in the United Kingdom".
17. This is something of a Delphine term in the context of a deportation appeal because there will be a sense in which a person, by reason of being eligible for deportation, can be said not to have been "socially and culturally integrated in the United Kingdom", or at least not into those parts of the United Kingdom society that the Secretary of State wishes to encourage.
18. Mr Wilding was particularly keen to emphasise that time spent in prison can hardly be described as integration in British society.
19. The claimant's criminal record is set out conveniently, if a tad confusingly, under the heading "Immigration History" on the top sheet of the Secretary of State's bundle. That he was made subject of a three-month curfew order is to his discredit, but I do not regard that as a significant breach of his integration.
20. In September 2007 he was sent to a young offenders' institution for three years. In November 2010, he was sentenced to imprisonment for a dwellinghouse burglary and the sentence was reduced to eighteen months by the Court of Appeal. In August 2014 he was sentenced to 30 months' imprisonment. I do not accept that these sentences of imprisonment, which no doubt are considerably longer than the time actually served, prevent the claimant being recognised as someone "socially and culturally integrated in the United Kingdom". Indeed, by the time Judge McCarthy heard the appeal there was evidence that the claimant had shown signs of more responsibility and was coping with support in the United Kingdom. With the benefit of hindsight it may have been more helpful if Judge McCarthy had said more about this, but it is quite clear to me that he was entitled to conclude on the evidence before him, as he undoubtedly did, that the claimant is socially and culturally integrated in the United Kingdom.
21. Judge McCarthy no doubt will have seen the claimant's father's statement dated 16 June 2017 where he refers to the claimant being "thoroughly integrated to the British way of life", being able to speak only the English language which he speaks fluently, and having been educated there and adopting its local habits in respect of food and supporting local football teams and social life.
22. Paragraph 55 of Judge McCarthy's decision is particularly pertinent. He said:
"However, the [claimant's] evidence is sufficient to show that it is more likely than not that although he has integrated into the UK, this has not been without difficulties. His personal situation means there are obstacles that would prevent him integrating into Malaysia. He can only integrate if he has clear support structures, which he would not have in Malaysia."
23. The Secretary of State's grounds draw attention to the decision of this Tribunal in Bossade (ss117A-D-interrelationship with Rules) [2015] UKUT 415 (IAC). Whilst it is plain that the Act looks for both "social" and "cultural" integration it is not clear what difference the use of these two words is intended to highlight. Clearly mere residence in the United Kingdom is not sufficient and the longer a person has spent in custody in the United Kingdom the less chance there is of showing that he is socially and culturally integrated. However it must be remembered this claimant is a young man who came to the United Kingdom at the age of 10 months. Apart from a few short holidays his whole life experience has been in the United Kingdom. One of the reasons he has found it difficult to be "integrated" is his mental health problems suggestive of autism. It cannot be the law that a person is easier to deport because he is autistic. To the extent that the claimant has managed to integrate anywhere he has integrated himself into life in the United Kingdom, both socially and culturally. As the grounds themselves recognise the evidence is that he has now established a partnership. It is also right to say that he has established some residence without committing further offences. The test for being socially and culturally integrated is in the present tense. The finding of social and cultural integration was permissible.
24. The grounds complain that there should not have been a finding that there are very significant obstacles to integration. The grounds state:
"In paragraph 43 the FTTJ finds that family in Malaysia cannot be approached to assist the [claimant]. This fails to address paragraph 84 of the decision letter with reference to the [claimant's] father's statement that confirms he continues to visit Malaysia, and friends and relatives there have visited him in the UK. Failure to resolve this conflict and give clear reasons for any conclusion is an error of law."
25. Paragraph 84 of the refusal letter needs to be considered. There the Secretary of State said:
"There are some discrepancies between your father's accounts regarding contacts and extended family in Malaysia. In the Social Worker's report of September 2015, he is reported as saying that he had not told his family in Malaysia of your behaviour or criminality, yet in his 8 September 2016 statement, he states that his three sisters in Malaysia do not want to be involved with you due to your medical and criminal history. He also claims in his 8 September 2016 statement that he has continued to visit Malaysia and that he has had friends and relatives that have visited him in the UK - despite simultaneously claiming to have been 'semi ostracized' by his family for having a mixed marriage. It is considered that the evidence submitted with respect to your father having continued contact with friends and relatives in Malaysia is a clear indication that there are people present in Malaysia who could provide support to you on return there. This is supported by the findings of the Upper Tribunal Judge who refused your application for Judicial Review at the paper hearing stage on 7 September 2016, stating: 'The applicant has family members in Malaysia and the claim that he would be unable to look to them for help is speculation'."
26. All the claimant's father says in his statement which tends to support a finding that the claimant could access family support in Malaysia is that his knowledge of contemporary Malaysia has been updated through relatives and friends who come to visit the United Kingdom and through his own visits to Malaysia. He makes it plain that on his visits to Malaysia he has had to stay in a hotel because of the attitude of his family. He did explain in his statement that as he is now a British citizen he has had to relinquish his Malaysian nationality. He explains rather carefully that he could only stay on a short stay visa for between two weeks and three months. He would not be eligible for any of the long-term stay visas. Neither would he have the resources to get the necessary health insurance. There may be occasions where a close relative has such strong links with the country to which the candidate for deportation would be returned that he would be in a position to provide useful help. This appeal is about a young man who is going to need a lot of help and the suggestion that his father could or would provide it depends on nothing more than it being convenient to the Secretary of State's case. In fact the evidence shows that the claimant's father has considered the possibility with rather more care than is often shown in cases of this kind and it is clearly not a viable option.
27. The suggestion that the claimant's partner could return with him is misconceived. The Judge did not decide that this was an "Exception 2" case but an "Exception 1" case. Judge McCarthy did give reasons for saying that the claimant's partner could not accompany him. She has never left the United Kingdom having had a troubled past and remains close to her mother in the United Kingdom.
28. The Judge thought it unreasonable to expect her to leave the United Kingdom, but also found that there was no reason to accept that she would be of any use to the claimant in Malaysia. She does not know the country and has no experience of life there. To see her as an agent of integration, even assuming (and I see no basis whatsoever for such an assumption) that she could enter Malaysia lawfully is unrealistic to the point of being silly and show no appreciation of her circumstances.
29. I note the comments made about the facilitated return scheme, but the claimant is not a person of ordinary health and robustness. This has been explained very carefully several times and was clearly in the Judge's mind and the conclusion was open to him. The Secretary of State also suggested that family members could go in the short term and assist in the initial integration. I do not see why they should. They want their son to remain in the United Kingdom with them. I see no reason whatsoever why they should go to Malaysia for the purpose of making it easier for the Secretary of State to deport the claimant. It would be against their interests. It cannot be assumed that that is something they would do.
30. More importantly, there no basis in the evidence for assuming that visits of that kind would be sufficient. The claimant is a young man who has no real experience of Malaysia whatsoever and no language and considerable difficulties in adjusting to anything.
31. In short, if Judge McCarthy's decision can be criticised at all, he can be criticised for not giving more reasons from the many available to him which he had plainly considered before making his findings, and particularly his finding that the claimant is socially, culturally integrated in the United Kingdom. I am satisfied that the decision as a whole is at the very least adequate and has not been undermined by the Secretary of State's grounds or Mr Wilding's realistic and measured submissions.
32. Although it is the claimant's fault that he has chosen to commit serious criminal offences, it is not his fault that he has lived in the United Kingdom since he was a little boy and it is not his fault that his mental state makes it particularly difficult for him to establish himself in what is in all but name to him a foreign country.
33. Although statute law has made it difficult for a person subject to deportation to establish a human rights claim, certain exceptions are recognised and Judge McCarthy clearly found that the circumstances of this case came within one of the exceptions. That was a decision that was open to him and I dismiss the Secretary of State's appeal.

Decision
The Secretary of State's appeal is dismissed.

Signed

Jonathan Perkins, Upper Tribunal Judge
Dated: 22 December 2017