Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03258/2020
UI-2021-000430

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 15th March 2022
On the 23rd June 2022

Before

THE HON. MRS JUSTICE ELLENBOGEN,
SITTING AS A JUDGE OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

YOBO BOKULA
(anonymity directioN NOT MADE)
Respondent

Representation:
For the Appellant: Ms C Cunha, Senior Home Office Presenting Officer
For the Respondent: Ms A Radford, Counsel, instructed by Turpin and Miller LLP

DECISION AND REASONS

Introduction
1. For ease of reading, we shall refer to the parties as they were before the First-tier Tribunal. Thus, the Secretary of State is once more “the Respondent” and Mr Bokula is “the Appellant”.
2. This is an appeal by the Respondent against the decision of First-tier Tribunal Judge Wyman (“the judge”), promulgated on 10 August 2021. By that decision, the judge allowed the Appellant’s appeal against the Respondent’s decision, dated 11 May 2020, refusing his protection and human rights claims.
3. The Appellant is a citizen of the DRC, born in 1997. He arrived in the United Kingdom in 2005 at the age of 7, accompanied by his older brother. His mother and two other siblings had arrived in this country earlier that year. His mother made an asylum claim, with the Appellant named as her dependent. That claim was refused, but the decision was later withdrawn. On 6 April 2009 the Appellant was granted indefinite leave to remain. He went through the education system and was accepted on a sports management course at university. He had obtained part-time employment in order to assist both himself and his family.
4. On 15 March 2019, the Appellant was convicted on a guilty plea of possession with intent to supply Class A drugs (crack cocaine and heroin) and of resisting a constable. On 24 April of that year he was sentenced to 2 years’ imprisonment. The relevant Sentencing Remarks described the Appellant as “an extremely popular, thoughtful and kind young man in so many ways and very talented in other ways”, referred to the “very bad decision” to sell drugs, and noted the fact that his ambition to become a teacher had been stopped in its tracks as a result of the conviction. Account was taken of previous convictions for travelling on a train without a ticket (2015, resulting in a fine) and possession of cannabis, driving without a licence, and resisting a constable (February 2019, again resulting in a fine).
5. The sentence triggered the automatic deportation provision under section 32(5) of the UK Borders Act 2007 and the Respondent accordingly initiated proceedings, issuing a decision to deport on 6 June 2019. In response to this, the Appellant made protection and human rights claims, asserting that he would be at risk of harm in the DRC because of his father’s problems with the authorities, and that his connections to the United Kingdom would render deportation disproportionate.
6. The Respondent refused both claims. She did not accept that the Appellant’s father had ever experienced problems in the DRC, or that the Appellant himself would be at risk on return to that country. In addition, a certificate under section 72 of the Nationality, Immigration and Asylum Act 2002, as amended (“the 2002 Act”) was issued. In respect of Article 8 ECHR, it was noted that the Appellant did not claim to have a partner or children in United Kingdom. It was accepted that he had spent most of his life lawfully resident in this country, but it was not accepted that he was either socially and culturally integrated, or that there would be very significant obstacles to his integration into the society of the DRC.
7. The refusals of the protection and human rights claims gave rise to a right of appeal, which the Appellant duly exercised.

The decision of the First-tier Tribunal
8. The judge set out the Appellant’s immigration and criminal history, quoting sections of the Sentencing Remarks and noting the previous convictions from 2015 and February 2019. Relevant provisions of the Immigration Rules relating to deportation were set out, together with section 117C of the 2002 Act.
9. At [40], the judge recorded that the Appellant was not pursuing the protection claim.
10. A summary of evidence provided by the Appellant and two of his siblings was then set out, followed by references to two expert reports: the first was from Dr Howard Ryland, Consultant Forensic Psychiatrist, dated 26 January 2020, who concluded that whilst the Appellant did not then meet the criteria for a diagnosis of a specific mental health condition, there was a risk of deterioration in mental health if deportation occurred and that close monitoring should continue; the second was from Mr Alex Ntung, a country expert on the DRC, dated 13 July 2021. He concluded that the Appellant would face obstacles to integration on return to the DRC by virtue of a combination of factors, including the country’s poor social and economic situation, the lack of familiarity, and the absence of close family members. Reference was also made to the evidence of a trainee probation officer, Ms Toseland, who confirmed that the Appellant was deemed to constitute a “low risk” of serious harm and re-offending.
11. The judge’s findings and conclusions were set out at [102]-[131]. Having had regard to a wide variety of factors drawn from the evidence before her, the judge ultimately concluded that: (a) the Appellant had been lawfully resident in the United Kingdom for most of his life (as accepted by the Respondent); (b) he was socially and culturally integrated in the United Kingdom; and (c) there would be very significant obstacles to integration into society of the DRC. In addition, at [130], the judge concluded that, on a cumulative view of the relevant considerations, the Appellant had demonstrated the existence of very compelling circumstances in his case.
12. The appeal was duly allowed, effectively on the basis that the private life exception contained within section 117C(4) of the 2002 Act had been satisfied, and additionally that very compelling circumstances existed, pursuant to section 117C(6).

The grounds of appeal and grant of permission
13. The Respondent put forward two grounds of appeal in her application for permission. Under the heading “Failing to give adequate reasons for findings on a material matter”, it was said that the judge “failed to make a finding that the appellant is socially and culturally integrated in the UK.” Relying on Binbuga (Turkey) [2019] EWCA Civ 551; [2019] Imm AR 1026, the following proposition was asserted:
“… as social and cultural integration requires integration as a law-abiding citizen, the appellant’s criminal record and period of imprisonment demonstrate that he is not socially and culturally integrated in the UK.”
14. The second ground appeared under an identical heading to that of the first. Reference was made to the facts in Bossade (ss.117A-D- interrelationship with Rules) [2015] UKUT 415 (IAC); [2015] Imm AR 1281, a decision concerning a citizen of the DRC who had come to the United Kingdom at a young age, acquired a criminal record, and had sought to resist deportation on the basis of the private life exception under section 117C(4) of the 2002 Act. Passages from the judgment of the Court of Appeal in AS [2017] EWCA Civ 1284; [2018] Imm AR 169 followed, emphasising the point that so-called “generic factors” can be of significance when evaluating whether an individual would face very significant obstacles to integration in his or her country of origin.
15. The only aspects of the second ground relating specifically to the Appellant’s case are found at paragraphs 5 and 6:
“5. The appellant speaks Lingala and has extended family in the DRC, [the judge] has failed to consider how these factors may assist the appellant’s reintegration. [The judge] has similarly failed to consider that the appellant has skills which may assist him to find employment in the DRC… In these respects the appellant finds himself in a more advantageous position to Bossade, whose appeal was dismissed. It is submitted that [the judge] has erred in failing to have regard to the relevant case law.
6. It is submitted that [the judge] has failed to give adequate reasons for finding that the appellant is socially (sic) culturally integrated in the UK, nor that his integration in the DRC would be prevented by very significant obstacles such as to amount to a breach of the appellant’s Article 8 right to a private life.”
16. Permission to appeal was granted by First-tier Tribunal Judge Feeney on 24 September 2021, who noted that there appeared to be greater merit in the second ground than the first.
17. Following the grant of permission, the Appellant provided a rule 24 response. In summary, this asserted that the judge had correctly directed herself in law, had provided adequate reasons on all issues, and that the Respondent was simply disagreeing with the outcome.

The hearing
18. The Respondent did not provide a skeleton argument, as directed. Ms Cunha relied on the grounds of appeal. She quite rightly acknowledged that there was no perversity challenge in play, that the judge’s consideration of the expert reports had not been challenged, and that it was “too late and unfair” to seek to amend the grounds at this stage.
19. She nonetheless submitted that the grounds were made out. As with the grounds themselves, her submissions were not at times entirely easy to follow. (We might suggest that the latter was a consequence of the former.) As we understood it, the essential points being made were as follows:
(a) there was a lack of findings and reasons on the issue of social and cultural integration;

(b) the judge had failed to take account of the Appellant’s offences in 2015 and February 2019;

(c) the judge had failed to conduct a proper balancing of the factors for and against integration;

(d) the length of residence in a country was not enough to demonstrate integration or very significant obstacles;

(e) criminal offending by an individual had the consequence that social and cultural integrative ties would be broken;

(f) if the judge had properly applied the relevant case-law, a different outcome might have occurred;

(g) the assessment of very significant obstacles was flawed because not all factors had been taken into account and the Appellant’s circumstances were better than those in Bossade so he should not have succeeded;

(h) although the judge’s conclusion on the compelling circumstances had not been challenged in the grounds, if the assessment of the private life exception was flawed then that conclusion was fatally undermined.
20. Ms Cunha accepted that the failure to expressly refer to the leading authority of Kamara [2016] EWCA Civ 813; [2016] 4 WLR 152 on the question of integration did not of itself constitute an error of law.
21. On the issue of social and cultural integration in the United Kingdom, Ms Radford relied on CI (Nigeria) [2019] EWCA Civ 2027; [2020] Imm AR 503 for the proposition that offending did not necessarily break social and cultural integrative links: cases were fact-specific. The judge was clearly aware of the previous convictions, the nature of which was very unlikely to have made any difference to the outcome on that issue. As to the existence of very significant obstacles, the judge had taken relevant factors into account and factual comparisons with other cases was unhelpful. The judge was not obliged to mention each and every point for and against the Appellant. Ms Radford emphasised the lack of any challenge to the expert evidence. On the question of very compelling circumstances, it did not follow that any errors in respect of the private life exception would necessarily fatally undermine the judge’s conclusion at [130].
22. At the conclusion of the hearing we announced to the parties our decision that there were no material errors of law in the judge’s decision and that reasons for this would follow in due course.

Discussion and conclusions
23. Before turning to the substance of the Respondent’s challenge, we emphasise the following important points. There is a need for appropriate restraint before interfering with a decision of the First-tier Tribunal, bearing in mind its task as primary fact-finder on the evidence before it, allocator of weight to relevant factors, and overall evaluator within the applicable legal framework. Decisions are to be read sensibly and holistically, perfection might be an aspiration, but is clearly not a necessity, and there is no requirement for reasons for reasons. Exhortations to this effect have emanated from the Court of Appeal on numerous occasions over the course of time: see, for example, Lowe [2021] EWCA Civ 62, at paragraphs 29-31, AA (Nigeria) [2020] EWCA Civ 1296; [2020] 4 WLR 145, at paragraph 41, and UT (Sri Lanka) [2019] EWCA Civ 1095, paragraph 19 of which reads as follows:
“I start with two preliminary observations about the nature of, and approach to, an appeal to the UT. First, the right of appeal to the UT is "on any point of law arising from a decision made by the [FTT] other than an excluded decision": Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"), section 11(1) and (2). If the UT finds an error of law, the UT may set aside the decision of the FTT and remake the decision: section 12(1) and (2) of the 2007 Act. If there is no error of law in the FTT's decision, the decision will stand. Secondly, although "error of law" is widely defined, it is not the case that the UT is entitled to remake the decision of the FTT simply because it does not agree with it, or because it thinks it can produce a better one. Thus, the reasons given for considering there to be an error of law really matter. Baroness Hale put it in this way in AH (Sudan) v Secretary of State for the Home Department at [30]:
"Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently."”
24. In addition, we feel it necessary to highlight the need for careful drafting of grounds of appeal by the party seeking to challenge a decision of the First-tier Tribunal. There is now an established body of case-law addressing the various types of legal errors which may be committed. Whilst some heads of challenge may overlap to an extent, others are distinct. What is required for the purposes of fairness to the other side and in order to assist the Tribunal with its task of dealing with cases effectively and efficiently is proper adherence to procedural rigour, an aspect of which is the exposition of clear and succinct grounds of appeal: see Talpada [2018] EWCA Civ 841, per Singh LJ at paragraphs 67-69.
25. The Respondent’s first ground of appeal fails to accord with the observation made in the preceding paragraph and has no apparent regard to the concept of restraint mentioned before that. The ground is headlined by the assertion of a failure to provide adequate reasons, whilst its substance relates to an alleged failure to make a clear finding. These are not the same thing.
26. Beyond the inconsistent terminology, we conclude that there is no merit in this aspect of the Respondent’s challenge, whichever way one approaches it.
27. As to the assertion that the judge failed to make a “clear finding” on the issue of social and cultural integration, one only needs to look at [129] to see the judge’s finding in favour of the Appellant. We are at something of a loss to understand why the Respondent chose to formulate this aspect of her challenge as she did.
28. It is clear to us that the judge also provided legally adequate reasons for her finding on social and cultural integration, with specific reference to what she had said across numerous paragraphs of her decision: the Appellant had been in the United Kingdom since the age of 7 and had never returned to the DRC; he had gone through the primary and secondary education system and had started at university; his “cultural identity” was British; he had not acquired any convictions since being released from prison and had engaged positively with the Probation Service; he had undertaken some part-time work, attended college, and been involved in voluntary work since release; he had a large family in the United Kingdom, with whom he still resided; and he had “no significant social or cultural links” with the DRC: [111]-[113], [122]-[124], and [127].
29. The fact that the judge did not expressly refer to the Appellant’s convictions in 2015 and February 2019 when setting out her findings and conclusions does not in our view disclose an error of law. She was plainly aware of that aspect of the Appellant’s history (having specifically referred to them at [8]) and there is no requirement for each and every aspect of the evidence to be referred to. We note that the previous convictions played no substantial part in the Respondent’s refusal of the Appellant human rights claim and, in all the circumstances, we are satisfied that they did not form an important element of the case against him. Even if the judge’s omission could be said to have constituted an error, we are entirely satisfied that it could not have made any material difference to the outcome of her overall assessment of the social and cultural integration issue. They were, at best, peripheral matters.
30. The bare fact of the length of the Appellant’s residence in the United Kingdom was quite clearly not the sole basis for the judge’s conclusion on social and cultural integration. As set out in paragraph 28, above, a variety of additional factors were taken into account.
31. The Respondent’s reliance on Binbuga (Turkey) as support for the proposition that criminal offending will break social and cultural integration of links is demonstrably wrong. The judgment in that case says no such thing. In fact, the passage quoted in the grounds makes it clear that criminality is a relevant, but not a determinative, factor:
“58. Social and cultural integration in the UK connotes integration as a law-abiding citizen. That is why it is recognised that breaking the law may involve a discontinuity in integration.”
[Emphasis added]
32. If that were not clear enough, the judgment in CI (Nigeria) cites Binbuga (Turkey) and provides further reasoning:
“60. What then in principle is the relevance to the assessment of the offences committed by a “foreign criminal” and the period(s) of imprisonment to which he or she has been sentenced? In the first place, it is clear that the person facing deportation cannot place positive reliance on associations with criminals or pro-criminal groups to demonstrate social and cultural integration. Thus, in Binbuga v Secretary of State for the Home Department [2019] EWCA Civ 551, paras 49-60, the Court of Appeal held that it was an error of law to regard the appellant’s involvement in gang culture as a good example of his integration into life in the UK, for the reason that social and cultural integration in the UK connotes integration as a law-abiding citizen.
61. Criminal offending and time spent in prison are also in principle relevant in so far as they indicate that the person concerned lacks (legitimate) social and cultural ties in the UK. Thus, a person who leads a criminal lifestyle, has no lawful employment and consorts with criminals or pro-criminal groups can be expected, by reason of those circumstances, to have fewer social relationships and areas of activity that are capable of attracting the protection of “private life”. Periods of imprisonment represent time spent excluded from society during which the prisoner has little opportunity to develop social and cultural ties and which may weaken or sever previously established ties and make it harder to re-establish them or develop new ties (for example, by finding employment) upon release. In such ways criminal offending and consequent imprisonment may affect whether a person is socially and culturally integrated in the UK.
62. Clearly, however, the impact of offending and imprisonment upon a person’s integration in this country will depend not only on the nature and frequency of the offending, the length of time over which it takes place and the length of time spent in prison, but also on whether and how deeply the individual was socially and culturally integrated in the UK to begin with. In that regard, a person who has lived all or almost all his life in the UK, has been educated here, speaks no language other than (British) English and has no familiarity with any other society or culture will start with much deeper roots in this country than someone who has moved here at a later age. It is hard to see how criminal offending and imprisonment could ordinarily, by themselves and unless associated with the breakdown of relationships, destroy the social and cultural integration of someone whose entire social identity has been formed in the UK. No doubt it is for this reason that the current guidance (“Criminality: Article 8 ECHR cases”) that Home Office staff are required to use in deciding whether the deportation of a foreign criminal would breach article 8 advises that:
“If the person has been resident in the UK from a very early age it is unlikely that offending alone would mean a person is not socially and culturally integrated.””
33. It is of concern to us that the Respondent’s grounds make no reference to CI (Nigeria).
34. It follows from what we have said that the judge did not misdirect herself as to the relevance of offending to social and cultural integration.
35. The assertion that the judge failed to conduct a proper balancing exercise is misconceived. The “very serious” nature of the index offence was specifically noted at [107] and this was clearly part and parcel of the overall evaluative assessment.
36. We have previously noted the absence of any perversity challenge against the judge’s conclusion on social and cultural integration.
37. In light of the foregoing, we conclude that the first ground of appeal fails.
38. We now turn to the second ground of appeal. The essential test to be applied to the very significant obstacles issue is found in Kamara, paragraph 14 of which states:
“14. In my view, the concept of a foreign criminal's "integration" into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of "integration" calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life.”
39. The judgment in AS did not amend that test, but simply confirmed that all relevant factors must be considered, including those which might be described as “generic”: see paragraphs 58 and 59.
40. It is right that the judge did not specifically refer to these authorities in her decision. However, as Ms Cunha rightly acknowledged, that does not of itself constitute an error of law: substance prevails over form.
41. In our view, the judge was aware of the need to apply the very significant obstacles test, having referred to both paragraph 399A(c) of the Immigration Rules and section 117C(4)(c) of the 2002 Act in the early stages of her decision. She then cited the judgment of the Supreme Court in Sanambar [2021] UKSC 30; [2021] WLR 3847, which quotes paragraph 14 of Kamara: see paragraph 55. Finally, the judge stated her own conclusion that there would be very significant obstacles to integration: [129]. Reading the decision sensibly and holistically, we are satisfied that the judge had in mind the correct legal approach.
42. Did the judge fail to have regard to relevant factors weighing against the Appellant when assessing the question of very significant obstacles? The answer to this is, in our judgment, “no”. She was aware of the fact that the Appellant spoke Lingala and had experience of life in the DRC until the age of 7: [110] and [127]. It is sufficiently clear to us that these factors formed part of the evaluative assessment. In respect of the presence of relatives in the DRC, the judge found herself unable to state any clear findings as to possible assistance from this source: [115]. We observe that the grounds of appeal do not include a challenge to the lack of specific findings on this point. Further, we note the judge’s finding at [124] that the Appellant had not had contact with anyone in the DRC.
43. As with the Appellant’s linguistic abilities, we are satisfied that the judge implicitly had regard to any skills which the Appellant had acquired whilst in the United Kingdom. His education and employment were expressly referred to in the context of ties to the United Kingdom and, as submitted by Ms Radford, there is no reason to believe that they were simply overlooked when the issue of integration in the DRC was being considered. On a fair reading of the judge’s decision, she evidently found that any alleviating factors did not outweigh what she considered to be the considerable obstacles to integration.
44. Ms Radford also emphasised the expert evidence in the case (specifically that from Mr Ntung) and the absence of any challenge by Respondent to the judge’s assessment thereof. The judge was, she submitted, entitled to place appropriate weight on the country report and the particular aspects summarised at [80]-[86]. We agree. That evidence addressed a number of factors going to the difficulties which were said to face the Appellant on deportation to the DRC.
45. For the avoidance of doubt, whilst the judge was entitled to, and did, take account of the medical evidence, it is clear to us that this (and the Appellant’s mental health in general) did not play a significant part in her overall assessment of very significant obstacles.
46. We also agree with the submission that seeking to make factual comparisons between one case and another is, in general terms, an unhelpful exercise and is apt to potentially distract attention from the important question of whether a judge has erred in law, as opposed to simply having reached a sustainable decision based on the facts of the individual case: see, for example, MI (Pakistan) [2021] EWCA Civ 1711, at paragraph 50, and RA (s.117C: "unduly harsh"; offence: seriousness) Iraq [2019] UKUT 123 (IAC), at paragraphs 14 and 15.
47. In the present case, the second ground of appeal effectively seeks to employ Bossade as a factual comparator. That Mr Bossade’s case involved a different factual matrix which was deemed insufficient to meet the high threshold of very significant obstacles cannot be said to indicate any error of law on the judge’s part in this case. That decision does not set out any proposition of law to the effect that the facts of the Appellant’s case in some way precluded him from success. Every case is highly fact-specific.
48. The Respondent’s second ground of appeal also fails.
49. Finally, we briefly address the judge’s conclusion on very compelling circumstances, which, as we have already seen, has not been the subject of challenge. In light of our conclusions on the private life exception, this aspect of the judge’s decision did not involve any error of law.

Anonymity

50. The First-tier Tribunal made an anonymity direction without providing reasons for this. There is no presumption that such a direction will also be made by the Upper Tribunal. At the hearing we asked the representatives for submissions on the issue. Ms Radford made reference to three specific factors, which she contended should justify the making of a direction: the psychiatric report on the Appellant; the fact of his sister’s mental health problems; and the mother’s status as a failed asylum-seeker. Ms Cunha adopted a neutral position.

51. We conclude that an anonymity direction should not be made, having regard to all the circumstances of this case. We note that the Appellant did not pursue his protection claim. We have made no detailed reference to the medical evidence relating to him and indeed there is no diagnosis of any specific conditions. The sister’s situation has played no part in our decision. In respect of the mother, her status as a failed asylum-seeker is not a sound basis for making a direction.

52. The matters referred to in the preceding paragraph do not, taken alone or cumulatively, outweigh the important principle of open justice.

Notice of Decision

53. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law and that decision shall stand.

54. The appeal to the Upper Tribunal is accordingly dismissed.

Signed: H Norton-Taylor Date: 25 April 2022

Upper Tribunal Judge Norton-Taylor