Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03900/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination and reasons promulgated
on 21st July 2016
On 4th August 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

S H S
Respondent

For the Appellant: Mr Matthews, Senior Presenting Officer
For the Respondent: Mr Knox, of Hamilton Burns & Co., Solicitors

DETERMINATION AND REASONS

1. The parties are as described above, but the rest of this determination refers to them as they were in the First-tier Tribunal.
2. The appellant is a citizen of Pakistan, born in 1947. He came to the UK as a student in 1975 and was granted extensions of leave until 30th April 1985. He applied for asylum on 29th April 1985. He claims not to have been aware that his claim was refused on 24th October 1988. He was offered the chance to be interviewed further about it in 2015, but did not then wish to revisit the issue. During the current proceedings he made a rather half-hearted attempt to revive it, but the First-tier Tribunal judge found in her determination that any such claim did not succeed. He has not sought to contest that finding.
3. On 14th February 1986 in the High Court in Glasgow the appellant was convicted of rape and of attempted rape, and sentenced to four years' imprisonment. He was released from prison in 1988. He continues to deny any guilt.
4. On 23rd July 2010 the appellant was encountered by Immigration Officers and served with notice as an overstayer. Various procedure followed, which it is not necessary to rehearse here. On 9th June 2015 the respondent made a decision to deport the appellant.
5. Section 117C of the 2002 Act states:

Article 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(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.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
6. The terms of paragraph 399A of the Rules are to the same effect as Exception 1.
7. The respondent's decision analyses the question of "compelling circumstances over and above those described in paragraphs 399 and 399A of the Immigration Rules" thus (paragraph numbers taken from the decision):
77, significant public interest in deportation, given the offence and sentence;
78, a very strong article 8 claim would be required, over and above the circumstances described in the exceptions;
79, residence in UK since 1975 and nearly 30 years since conviction, in appellant's favour; accepted he will have established some private life here;
80, no evidence of relationships which might not be maintained by modern communications or by meeting friends in Pakistan or elsewhere;
81, appellant unmarried, with no children; his representations showed no social and cultural integration to a level at which his removal would adversely affect the community;
82, no valid leave since 1985, so any relationships formed while status precarious;
83, some contact with brother in Pakistan; retained familiarity with culture of that country;
84, some weight given to delay in considering representations made in 2014 -2015; consideration of representations since deportation decision made within reasonable timescale; delay significant but not such as to outbalance the criminal record and the public interest;
85, absence of further convictions noted, but deterrence of other foreign nationals and social revulsion also to be taken into account, and not a significant mitigating factor; adherence to the law does not reduce public interest in deportation;
86, no very compelling circumstances.
8. First-tier Tribunal Judge Bircher allowed the appellant's appeal by decision promulgated on 4th May 2016. At paragraph 21 she said she was satisfied that the appellant was no danger to the community. She went on to reject the asylum claim. She referred to the test posed by the rules, and to some case law. She said at paragraph 29 that the appellant had relatives in Pakistan who would be able to offer some help on his return. She dealt with his health problems but found nothing which had any significant bearing on the outcome of the case, another point which (again rightly) was not disputed on his behalf. The decision then goes on:
34. The appellant has produced limited evidence as to the extent to which he has integrated into the UK and in particular Glasgow during the last 40 years. There are no witness statements from friends and members of the community. There is little evidence to indicate how he spends his time on a day-to-day basis. It is difficult to build up a picture of the extent to which he has socially and culturally integrated into UK society ? [he] is not married, does not have a partner and has no children.
35. Against these factors I have taken into account the considerable period of time the appellant has resided in the UK. He was aged 28 when he entered the UK and is now aged 69 ? the mere fact that he has resided in the UK for the last 40 years without being able to formalise his stay ? or be removed by the respondent is exceptional. He has spent a considerably longer period living in the UK than in his own country. He has not returned to his home country of Pakistan in 40 years and it is not unreasonable to conclude that he identifies culturally with the UK as opposed to his country of birth given that he was only 28 years old when he last lived there. His only links with Pakistan are through occasional contact with his brother and his brother's family.
36. The Home Office places reliance on s.117B (2) ?. The appellant speaks excellent English ? the Home Office also places reliance on s.117B (3) ?. The appellant is financially independent ? no evidence that he is dependent on public funds ?
?
40. The appellant has maintained the same address for a number of years, has been registered on the electoral roll, registered with various utility companies, has a bank account and is responsible for paying all household bills.
41. In conclusion I am satisfied that for all of the above reasons there are very compelling circumstances as to why this appellant should not be deported.
9. The SSHD appeals to the Upper Tribunal on the grounds that the judge failed to adopt the correct legal approach to the issue of "compelling circumstances over and above those described in paragraphs 399 and 399A of the Immigration Rules."
10. There is no difference between the parties as to the applicable law, to be found in the paragraphs of the Immigration Rules referred to above, in the 2007 Act, in Part 5 of the 2002 Act, and in a series of cases most recently including NA (Pakistan) and Others v SSHD [2016] EWCA Civ, where the overall position is conveniently summarised.
11. It was acknowledged that the nature of the appellant's conviction and the length of his sentence place him in the category of a serious offender, as that categorisation is used in NA. The particular point added by that case is that very compelling circumstances upon which an appellant might rely include reference back to other factors relevant to Article 8 but not falling within the terms of the relevant exceptions.
12. The Court in NA said at paragraph 37:
In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are "very compelling circumstances, over and above those described in Exceptions 1 and 2" as is required under Section 117C(6). It will then be necessary to look to see whether any of the factors falling within Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6).
13. To succeed under Exception 1, all of its conditions must be met. The appellant does not satisfy Exception 1(a). He has not been lawfully resident in the UK for most of his life. The judge does appear to have thought that he met part (b), although her finding is a rather qualified one, based on length of time only and on a paucity of evidence. There was no evidence of very significant obstacles to the appellant's integration into Pakistan. The evidence and findings are all to the contrary. He fell well short of the "private life exception".
14. The court in NA said at paragraph 33:
Although there is no "exceptionality" requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be few. The commonplace incidents of family life, such as aging parents and poor health or the natural love between parents and children, will not be sufficient.
15. Mr Knox drew attention submitted that the judge did apply the correct approach. He said that the very compelling circumstances test had been set out, and applied at the point of decision. He drew attention to the first sentence in paragraph 33 of NA, and argued that the judge correctly identified this case as one of the few instances where the test was met.
16. I am not persuaded by those submissions.
17. The judge said that the respondent founded on s. 117B (2) and (3), relating to ability to speak English and financial independence. I was not referred to and have found no record that the respondent did make such a submission. The judge plainly thought both those factors counted significantly in the appellant's favour. That was an error. There is no rule in the statute or elsewhere that those points positively advance a case very far.
18. As Mr Matthews pointed out, the judge did not refer to the following provisions in s. 117B, at (4) and (5), to the effect that little weight is to be given to private life formed during residence which is unlawful or precarious - a strong indication against the appellant.
19. It was up to the appellant to assert and prove any positive private life features. As submitted by Mr Matthews and indeed as acknowledged by the judge, despite her eventual decision, there was a dearth of evidence to show what makes up the appellant's private life.
20. The second sentence of paragraph 33 of NA is illustrative. Even strong family life claims are not likely to be sufficient to outweigh the public interest in the deportation of foreign criminals, and of serious offenders in particular. This case is based on private life only. Its one unusual factor is the long period which has elapsed since the conviction. That time has been spent in the UK, but with no right to be here, and subject to a statutory rule that it carries little weight.
21. I am persuaded by the respondent's grounds and submissions that the judge failed to ask herself, as she should have done, whether there were very compelling circumstances requiring the strong presumption in favour of deportation of a foreign criminal to be overridden. She lost sight of the overall scheme of deportation as set out in Immigration Rules, statute and case law. The respondent's decision follows a rational scheme of analysis, within the legal framework, which is missing from the judge's decision.
22. The judge erred in her legal approach. She did not specify in her decision any circumstances which either by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exception 1 satisfied the test in section 117C(6).
23. The evidence does not yield any circumstances sufficiently compelling to outweigh the high public interest in deportation. There is nothing but a private life, of which the sketchiest of evidence is provided, and to which little weight is to be given.
24. The First-tier Tribunal made an anonymity order, on the rather tenuous grounds that its decision touched on matters regarding the appellant's health. Neither party mentioned the matter in the Upper Tribunal. In the circumstances, I have preserved anonymity in this decision.
25. The decision of the First-tier Tribunal is set aside. The following decision is substituted: The appeal, as originally brought by the appellant to the First-tier Tribunal, is dismissed on all available grounds.

Upper Tribunal Judge Macleman
2 August 2016