Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21382/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 November 2016
On 1 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

M C L
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr S Staunton, Home Office Presenting Officer
For the Respondent: Mr A Mackenzie, Counsel, instructed by Birnberg Peirce & Partners, Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal (Judge Scott-Baker) allowing an appeal by the respondent against the decision made on 28 April 2014 refusing him leave to remain in the UK and to give directions for his removal. In this decision I will refer to the parties as they were before the First-tier Tribunal, the applicant as the appellant and the Secretary of State as the respondent.

Background
2. The appellant is a citizen of the DRC born on 20 May 1993. He arrived in the UK on 14 February 2003 with his three older sisters. They claimed asylum on 25 February 2004 accompanied by their older brother, who was already in the UK. The appellant's oldest sister claimed to be 16 but her age was disputed and she was treated as an adult. The appellant and his two other sisters were treated as accompanied minors and their asylum claims were dealt with accordingly.
3. On 23 April 2004 the appellant was served with a form treating him as an illegal entrant. His asylum claim was refused on 16 November 2006 and a subsequent appeal was dismissed on 9 May 2007. On 28 May 2007 he made further representations which were considered under para 353 of the Rules and refused on 16 September 2011. Following further submissions made on 28 November 2011 the appellant was identified as a foreign national offender under Operation Nexus on 8 August 2012 and detained. On 20 August 2012 he was released on immigration bail. On 21 January 2013 the appellant's further submissions were considered and refused. Further submissions were made on 20 February 2013 and 4 April 2013 which were refused on 13 September 2013. Yet further submissions were made on 25 September 2013 which were refused on 16 October 2013 but that letter was withdrawn and replaced with a fresh refusal letter dated 1 November 2013. On 6 December 2013 judicial review proceedings were lodged and further submissions were made on 27 January 2014. A decision to refuse leave to remain and to remove was made on 28 April 2014, the subject of the present appeal.
4. It was the respondent's view that the appellant did not qualify for a period of leave to remain under the Rules introduced on 9 July 2012 as he fell within the provisions of S-LTR.1.6 in that
"his presence was not conducive to the public good based on his conduct (including convictions which did not fall within paragraphs S-LTR.1.3 to 1.5), character, associations, or other reasons, making it undesirable to allow him to remain in the UK".
The appellant had two convictions in the UK for robbery and possession of an offensive pointed blade when a minor but the respondent also took into account information supplied by the Metropolitan Police as the appellant had been identified as a foreign national offender under Operation Nexus, a joint partnership between immigration enforcement and the police to target the increasing number of high-harm foreign national and immigration offenders in London. Further, the respondent was not satisfied that removing the appellant would be a breach of article 8. In so far as there was any interference with his family life, removal would be for the prevention of disorder and crime, one of the permissible aims under article 8(2) and it was not accepted that his removal would result in a breach of his right to private life.
The Hearing before the First-tier Tribunal
5. At the hearing of the appeal before the First-tier Tribunal, the respondent relied on evidence in the form of two Nexus bundles containing witness statements from a number of police officers. This evidence is summarised by the judge at [41] - [86]. She heard evidence from the appellant, who adopted his witness statements and gave further oral evidence summarised at [88] - [149]. The appellant also relied on a report dated 21 November 2014 from an independent social worker and a psychological assessment in a report dated 21 April 2015.
6. The judge noted that there was no dispute that the appellant had two convictions, the first for robbery in 2009 when he was aged 15 where a 14 year old had been threatened by the appellant and another man with a knife and robbed of his cash, necklace and bracelet. The appellant and his co-accused were both convicted, the appellant receiving a nine month referral order with an order to pay costs and compensation. Secondly, the appellant was found guilty of possessing an offensive weapon in 2010 following an incident when he was found on the street in possession of a large kitchen knife wrapped in a plastic bag and concealed in his jacket. He was charged and received a twelve month youth rehabilitation order.
7. The judge took into account the fact that the respondent relied on police records which showed that the appellant had come to the attention of the police on 71 occasions between 20 January 2009 and 14 September 2013. He had been arrested on fifteen separate occasions on suspicion of offences including criminal damage, five offences against the person, five thefts, two public order offences and possession of a knife but he had not been prosecuted. That was often because the victims were unwilling to cooperate with the police due to his gang association and no further action could be taken. She also noted the evidence that he had been seen wearing a green bandana and had been encountered in the company of other males known to be members of the "Dem Africans" Gang which fell under the umbrella of the Green Gang. Thirty associates had been listed all of whom had criminal convictions for a range of serious offences including theft, robbery, burglary, possession of knives and firearms, possession of class A drugs, assault and criminal damage. Three of his siblings were known to the police for shoplifting offences and a further two siblings were believed to be associated with gang members who had convictions for robbery, carrying weapons and possession/distribution of drugs and firearms.
8. The judge commented that the appellant had not received any convictions resulting in a term of imprisonment of at least twelve months and was not the subject of a deportation order and therefore did not fall to be considered under S-LTR.1.2 - 1.5. She referred to the 71 occasions between 20 January 2009 and 14 September 2013 when the appellant had come to the attention of the police but said that she accepted that on most occasions he had been encountered whilst in the companionship of known individuals, which was evidence of association and character but not per se evidence of criminality. She also accepted that the police had an interest in him and had attended his home on a number of occasions but commented that, whilst the evidence established that the police had an interest in the appellant, it was not evidence of further criminal behaviour. The judge dealt specifically with recorded incidents in 2013 but found that they could not be regarded as evidence of criminal gang-associated activities as distinct from the last of the 2012 entries, that of 9 May 2012 which she did accept as evidence of gang-related association. She, therefore, found that the respondent had not established any gang-related activity or association by the appellant since the incident of 9 May 2012, three and a half years before the hearing.
9. The judge summarised her findings as follows:
"191. I find that in considering the evidence in the round that as at the date of decision in April 2014 there was sufficient evidence before the respondent to indicate that the appellant had indeed matured and was attempting to distance himself from the gangs. The social worker's report had been produced to the respondent prior to the decision. The evidence available at the hearing before me reinforced the appellant's claim that he had indeed matured and was no longer involved in gang-related activities or conduct."
10. When considering within the context of proportionality the issue of whether excluding the appellant for reasons of character and association was conducive to the public good the judge said:
"203. ? During his young life he has resorted to gang-related activities with his peers and was involved in criminal activities and certainly came to the attention of the authorities. He has however matured and has realised the errors of his ways and the evidence before me shows that he is achieving this. Clearly it is a process and to date he has been successful. It is of note that his offending has never been of such a level that any probation workers have been involved with him and therefore there is no OASys Report or pre-sentence report before me to indicate the risk of his reoffending in the future. The lack of past offending is therefore to his credit but to his detriment in that there is no documentary evidence as to the rehabilitation that he claims to have experienced over the last few years."
11. When considering the application under the Rules it was conceded by the Presenting Officer that the appellant had satisfied the requirement of para 276ADE(1)(v). In the light of the judge's findings relating to suitability the appellant therefore came within the Rules. In the alternative, the judge went on to consider article 8, finding that there would be a significant interference to the appellant's right to family and private life. The respondent's decision would be in accordance with the law as he had no basis on which to remain in the United Kingdom and removal would be for the purpose of effective immigration control. When considering proportionality she reminded herself of the requirements of ss.117A - B of the Nationality, Immigration and Asylum Act 2002. She accepted from the psychological assessment and the social worker's report that the effect of removal on the appellant and his immediate family would be immense. The judge then said:
"205. The past history of the appellant has been carefully considered. He has accepted that he had been in a gang or gangs in the past but he has realised the error of his ways. The subsequent evidence of this can be taken into account in considering article 8 and I note that there is no intelligence on the appellant since September 2013, two and a half years ago or material intelligence since May 2012."
12. She found that the decision to remove would not be proportionate, commenting that on this basis the appellant should be given a limited period of leave but adding as a warning note that any further act of criminality, or indeed association, might well render him at risk of deportation proceedings and his claim to have reformed would have been shattered.
The Respondent's Grounds for challenging the Decision
13. In the grounds of appeal the respondent raises three grounds of appeal: ground 1, failing to give reasons or adequate reasons for findings on material matters in relation to the suitability criteria, ground 2, making a material misdirection of law in relation to para 276ADE(1)(iii) to (vi) and ground 3, failing to give reasons or adequate reasons for findings on material matters relating to article 8.
14. I can dispose briefly of ground 2 relating to para 276ADE(1). This ground asserts that the Tribunal erred in allowing the appeal under para 276ADE(1)(v) on the basis that the appellant had spent at least half his life in the UK. It was submitted that to meet the requirements of the Rules the appellant must also meet the requirements of para 276ADE(1)(vi), which had not been considered, and further that as required by (vi) there were no very significant obstacles to the appellant's integration into the DRC. As Mr Staunton accepted, this ground is entirely misconceived. It is clear that subparas (i) to (vi) are alternatives, the relevant subparagraphs ending with "or" but in any event at the hearing before the judge it was conceded at [195] that the appellant had satisfied the requirement of para 276ADE(1)(v) and the issue of subpara (vi) was not an issue raised in the respondent's decision letter. There is therefore no substance in ground 2 (paras 8 to 10) of the grounds.
15. I now turn to ground 1. The challenge to the judge's findings in relation to the suitability criteria is particularised in paras 1 - 6 of the grounds. In para 1 it is argued that the Tribunal failed to provide adequate reasons for the finding that the appellant's case did not fall for refusal under S-LTR.1.6, arguing that whilst the judge had found at [191] that the appellant had attempted to distance himself from gangs and had matured, she found at [203] that there was no documentary evidence as to the rehabilitation he claimed to have experienced. As there was no independent evidence to corroborate the appellant's claim to be rehabilitated, the Tribunal's findings were, it is argued, wholly inadequate. There was no adequate evidence why the Tribunal found the appellant to be credible. The police had submitted evidence that he had continued to associate with gang members in 2013 and 2014 after his claim to have left gang life behind. There was sufficient evidence to show that he was still associating with gangs and negative influences and had not reformed. The Tribunal had completely ignored that at para 59 the psychological assessment of the appellant had found that he remained a present and moderate risk while he continued to live in the same area and may return to the same lifestyle and continue to associate with gangs. Whilst the appellant might claim that he had been unable to move, there had been no reasons preventing him from doing so and that even if he had not associated with gangs since 2012 as the Tribunal had found at [187], the judge had failed to take into consideration that he might have tried to improve his behaviour due to his outstanding application rather than any desire to change.
16. I am not satisfied that there is any substance in the various issues raised in this ground. There is no contradiction of any substance between the judge's finding in [191] and the comment in [203] that there was no documentary evidence as to the rehabilitation he claimed to have experienced. In [203], the point the judge was making was that the appellant's rehabilitation was a process and to date he had been successful. She was also entitled to note, as was indeed the case, that his offending had never been of such a level that any probation workers had been involved with him and therefore there were no OASys Report or pre-sentence reports to indicate the risk of future reoffending. The comment that the lack of past offending was therefore to his credit but that it was to his detriment that there was no documentary evidence as to rehabilitation can only be read as a comment that the absence of such reports meant that there was no positive evidence of rehabilitation or the prospects of reoffending that might otherwise have been in such reports.
17. However, the judge did have the psychological assessment which expressed the view that the process by which the appellant chose to leave the gang showed a surprising amount of insight and that he presented as being fully aware of the seriousness of the gang lifestyle and of the violence it produced. It was acknowledged that whilst the appellant continued to live in his home locality, there remained a risk that he would be exposed to his previous lifestyle and could choose to return to it and a risk that police intelligence continued to build on him being present in the area in certain places with certain people that indicated the risk was increasing. The author therefore set the risk factor as partially present and moderately relevant due to the appellant's stated desistence but it had also been suggested that residing in the same area did serve as a protective factor as the police were aware of him and therefore his actions were being monitored. To this extent the risk of future reoffending was dealt with in the psychological report and it was for the judge to decide what weight to attach to it.
18. The ground argues that there was no independent evidence to corroborate the appellant's claim to be rehabilitated and that the Tribunal's findings are wholly inadequate. However, the judge's decision must be read as a whole. She took into account the independent social work report and the psychological report together with her findings in relation to the appellant's activities. The judge's finding that the appellant had matured and was attempting to distance himself from gangs [191] was a finding of fact properly open to her. It is also argued that the judge failed to consider the evidence that the appellant continued to associate with gang members in 2013 and 2014 but these issues were specifically considered in [187] where the judge dealt with the reports for 2013 explaining why she did not consider that this was evidence of gang-related association.
19. It is further argued that the psychological evidence found that the appellant remained a present and moderate risk while he lived in the same area. In fact as set out in [159] the report says that one of the risk factors potentially relevant to reoffending, problems with the appellant's living situation was "partially present and moderately relevant". Here the judge correctly summarised para 6.17(iii) of the report where it was also said that the risk factors were largely historical and that there were a high number of protective factors. It is then argued that there had been no reason preventing the appellant from moving from his home area but he had failed to do so but at the hearing that issue was considered by the judge, the presenting officer noting that the appellant was trying to move away from gangs but still living in his local area but also accepting that the evidence showed that it was difficult for him to arrange to move away [179]. Whilst this was not a formal concession by the presenting officer, it was clearly a sensible point that he was making, not least as the appellant's accommodation was provided by Social Services and to this extent he had a limited, if any, choice about where he lived.
20. Paragraph 2 of ground I appears to argue that the judge failed to consider the evidence from the police appropriately and that there was clear evidence that the appellant had been involved in undesirable conduct and in criminal activity which included violence but on many occasions charges were not pursued as the victims withdrew their allegations. The appellant, so it is argued, had admitted involvement in offences for which he had not yet been arrested or that had not been proceeded with [44(25)] and that therefore it was wholly inadequate for the Tribunal to find there was no evidence of the appellant's criminality when there was substantial evidence of involvement in criminal activities. However, the issue for the judge was whether the respondent had established that the application should be refused under the suitability grounds at S-LTR.1.6. When reaching this decision the judge took into account the appellant's convictions, both when he was a minor. She dealt with the evidence in the incident reports at [183] - [187]. It was accepted at the hearing that the evidence was historic [188]. It was for the judge to assess what inferences could properly be drawn from the evidence and whether and to what extent there was any substance in the appellant's assertions that he had broken free of involvement with gangs and was attempting to rehabilitate himself. I am satisfied that the judge properly directed herself on the law citing the principles set out in Farquharson (removal - proof of conduct) [2013] UKUT 00146, which reflects the guidance given by the Court of Appeal in Al-Sirri v Secretary of State [2009] EWCA Civ 222.
21. Paragraph 3 of ground I seeks to challenge the emphasis placed on the social worker's report to demonstrate that the appellant has matured and is no longer involved in gangs. It is argued that the report was unreliable as it relied on the appellant telling the social worker that he had not been in trouble since 2010 when he had continued to be involved in criminality in 2011 - 2013. The social worker had also found that the appellant had no family in the DRC whereas his parents remained there and he had failed to inform her that he was in contact with them. It is further argued that the appellant sought to deceive the Tribunal about his involvement with gangs, claiming no involvement since 2011 which the Tribunal had found not to be true and his family had also sought to deceive the authorities about contact with their parents, showing that they were not credible and that these matters cast serious doubts upon the appellant's assessment by the social worker. However, as already referred to in relation to paras 1 and 2 of this ground, the appellant's convictions were in 2009 and 2010. I am not satisfied that there is any substance in the argument that the social worker was misled by the appellant or that an experienced social worker would have been unaware that the appellant might wish to put a gloss on his account of events to her. There was extensive evidence before judge about the appellant's involvement in gangs and it was for her to assess what weight should be given to the social worker's report.
22. Paras 4 to 6 of ground I argue that the appellant has at no point expressed remorse for his behaviour and that his attitude suggests he sees himself as a victim and even if he has not reoffended or associated with gangs since 2012, he has demonstrated undesirable conduct and it is proportionate to remove him because of a risk of reoffending and causing possible harm to the public. However, these grounds raise issues of fact and in substance, like the other grounds, are seeking to reargue issues of fact. There is nothing to indicate that these factors were not taken into account by the judge when assessing the evidence.
23. I am therefore satisfied that the judge was entitled to find that the appellant met the requirements of para 276ADE(1) and that the appeal fell to be allowed under the Rules. In these circumstances I shall deal relatively shortly with ground 3, which seeks to challenge the judge's reasoning when allowing the appeal in the alternative on article 8 grounds. It is argued at para 12 that the judge failed to provide adequate reasons for her finding on proportionality and was wrong to find at [197] that the appellant and his family had lost touch with his parents whereas he had admitted [31] that they were in contact with them. However, it was not in dispute that the appellant and his siblings had had contact with their parents in 2008. This is not inconsistent with them subsequently losing contact. In this context at [197] the judge said: "I accept the evidence concerning the appellant's parents and that they and the family have lost touch with them." This paragraph also argues that the appellant's siblings failed to attend the hearing or provide any evidence and this casts serious doubts about their claims regarding their close relationship but this wholly ignores [3] - [4] where the judge said that she heard oral evidence from the appellant's family members identifying his three sisters. She recorded that there was no summary of the evidence in the determination but the witnesses spoke in one voice stating that they were a close family unit in the UK and had no ties now to the DRC.
24. In para 13 it is argued that the social worker was not qualified to make the assessment that the appellant could not return to the DRC as her report was based on inadequate facts and there was no sufficient evidence to demonstrate that the appellant and his family would be emotionally harmed if he were to be removed. It is further argued that emotional harm was not sufficient to demonstrate that it would be unduly harsh or that there would be compelling circumstances and the consequences referred to are nothing more than the ordinary effects separation would have on any family. Whatever the merits of this paragraph as a submission of fact, I am not satisfied that it raises any arguable point of law capable of successfully challenging the judge's analysis and her conclusions under article 8. The judge was entitled to rely on the psychological assessment and the social worker's report when considering the effect of removal on the appellant and his immediate family.
25. Finally, at para 14 the respondent argues that the finding at [202] that the appellant was not financially independent was due entirely to his own making and he had shown no desire or attempts to obtain employment; he was not financially independent and his precarious immigration status should be held against him and further he had been a burden to taxpayers through the constant encounters he had had with the police and the courts. However, there was evidence of the appellant's attempts to obtain voluntary work as a first step to putting himself in a position to obtain employment should he be granted leave to remain as set out by the judge at [122] - [123]. Again, I am not satisfied that this ground raises any arguable point of law capable of undermining the judge's assessment of the evidence in relation to proportionality.
26. In summary, I am satisfied that the judge reached findings and conclusions properly open to her for the reasons she gave. It may well be that a different Tribunal might have reached a different decision. There was evidence more than capable of supporting a finding that the presence of the appellant in the UK was not conducive to the public good because of his conduct, character and associations but it was for the judge to decide whether that had been established in the appellant's particular circumstances.
27. In the light of the fact that his convictions were when the appellant was a minor, the evidence of gang involvement was historic to the extent that the judge accepted that he had not been involved in such activities since May 2012 and the fact that the judge accepted that the appellant had dissociated himself from gangs and to date had been successful provides a reasonable and rational basis on which she could properly conclude that the position had been reached when it was not shown that the appellant's presence was not conducive to the public good. As I have already indicated, in substance, the grounds seek to reopen and reargue issues of fact where the judge has reached findings and conclusions properly open to her for the reasons she gave.

Decision
28. For these reasons the grounds do not satisfy me that the judge erred in law such that the decision should be set aside. The First-tier Tribunal decision therefore stands. The anonymity order made by the First-tier Tribunal remains in force

Signed H J E Latter Date: 30 November 2016

Deputy Upper Tribunal Judge Latter