Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-003722

[PA/04367/2020]

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 26 November 2025

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

[T N]
(anonymity order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Karnik, Counsel instructed by Citywide Solicitors
For the Respondent: Mrs Newton, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 17 June 2025

DECISION AND REASONS

1. The Appellant is a national of Zimbabwe born in 1995. In this matter he seeks to resist, on human rights grounds, the Secretary of State’s decision to deport him as a ‘foreign criminal’.

Case History

2. This matter has a regrettably extensive history before this Tribunal. It is known to both parties so for the purpose of this decision I record it only very briefly here.

3. The Appellant has lived in the United Kingdom since was a young child. His first conviction of any significance was on 9th November 2011 when he was 16: he was convicted of one count of robbery and three counts of attempted robbery, and was sentenced to 2 years of custody in a Young Offenders Institution. The Secretary of State notified him of her intention to deport him as a result of that conviction, and the Appellant appealed. His appeal was dismissed by the First-tier Tribunal on 12 June 2013. The Secretary of State signed a deportation order against him on 26 July 2016. For reasons that this Tribunal has not been made aware of, no action was taken to enforce that order.

4. On the 5 November 2018 the Appellant was convicted of possession of a controlled drug with intent to supply. Now an adult (aged 23) he was sentenced to 3 years’ imprisonment. The Secretary of State invited the Appellant to make any representations he wished about why he should not, this time, be deported; the Appellant’s reply was treated as a ‘fresh claim’ on both protection and human rights grounds, so that when the Secretary of State refused to revoke the deportation order, a fresh right of appeal arose.

5. On 6 July 2022 the First-tier Tribunal allowed the Appellant’s appeal on human rights grounds. The Tribunal found that the deportation would be an unlawful interference with his Article 8 family life, given that he was socially and culturally integrated in the UK, and he had lived more than half of his life here. It dismissed the appeal on protection grounds, having found that the Appellant had failed to rebut the presumption in s72 Nationality Immigration and Asylum Act 2002 that he had committed a particularly serious crime and so must therefore be excluded from the protection of the Refugee Convention.

6. The Secretary of State appealed against the decision to allow the appeal on human rights grounds. The matter first came before me on the 6 December 2022. Having heard from Ms Young for the Secretary of State in the absence of the Appellant (who did not attend), I issued a decision finding that the decision of the First-tier Tribunal was flawed for material, and fatal, error. The central reason given by the First-tier Tribunal for allowing the appeal was premised on a mistake of fact and/or misdirection as to the relevant legal provision. At its paragraphs 40 and 44 the Tribunal found that the Appellant “has been lawfully resident” in the UK. It did not, however, at any stage calculate whether the Appellant had been lawfully resident for “most” of his life, as it was required to do by s117C(4) of the Nationality, Immigration and Asylum Act 2002. “Most” must be read as more than half: AS v Secretary of State for the Home Department [2017] EWCA Civ 1284 and Secretary of State for the Home Department v SC (Jamaica) [2017] EWCA Civ 2112 at [53]. The Appellant arrived in the UK in 2007 when he was 11 years old. He was at that time granted indefinite leave to enter the UK. A deportation order was signed against him on 26 July 2016. Since a valid deportation order would have the effect of extinguishing his leave to enter, that means that the Appellant lived in the UK with valid leave for some 8 years and 7 months, markedly less than half his life. The Judge appears to have overlooked this key requirement of s117(C)(4)(a): it follows that the decision could not stand. It was on this basis that I set the decision of Judge Ali aside. There was no counter-appeal against the decision in respect of the s72 certification.

7. At that hearing in December 2022 I queried the basis for the original decision to deport, taken in 2016 when the Appellant was still a minor. I observed that it could not have lawfully been made under the ‘automatic deportation’ provisions set out the UK Borders Act 2007, since section 33 (3) expressly provides that this process will not be applied where the Secretary of State thinks that the offender was under 18 at the date of conviction. It is not in dispute that the Appellant was then only 16. The decision can only therefore have been made with reference to sections 3 and 5 of the Immigration Act 1971 on the grounds that the Appellant’s deportation was “conducive to the public good”. This seemed to me, and I put it no higher than this, to be unusual given the Appellant’s young age at the date of conviction, and the fact that it was his first offence. I directed the Secretary of State to disclose the basis for the 2016 decision to deport, with reference to any policies/statutory provisions that were applied.

8. Senior Presenting Officer Ms Zoe Young responded to my directions with her customary efficiency. Unfortunately, her quickly produced position statement took some time to find its way to the file, so that when the matter came before Deputy Upper Tribunal Judge Alis in January 2023, he was not aware that the directions had in fact been complied with. He adjourned the matter. The hearing was then slated to resume in June 2023, but this listing was vacated because counsel was not available. A further hearing in March 2024 was adjourned upon joint application by the parties: the Appellant had been charged with a further criminal offence and both parties considered it appropriate to await the outcome of those proceedings before this appeal could be heard. There was then a delay in the criminal trial. At a hearing before myself and Deputy Upper Tribunal Judge Hughes on 17 January 2025, the Appellant explained that he had been acquitted of “all charges” and Mr McVeety for the Secretary of State took no issue with that.

9. The matter finally came back before me for remaking on 17 June 2025. I was informed that in fact the Appellant had not been acquitted of all charges on 12 November 2024: he had been convicted of possession of cannabis. He had already spent one night in the cells and so on this occasion the magistrates simply ordered the forfeiture and destruction of the drugs. At that hearing I heard from the Appellant, and submissions by the parties. I reserved my decision.

10. Upon consideration of the materials before me I realised that the representatives had omitted to address me on some important evidence in the bundles. That was the evidence from the Probation Service relating to the Appellant’s rehabilitation and compliance with conditions imposed on him when he was on release from prison. I refer in more detail to this evidence below, but the issue that concerned me was whether the headline assessment - a 33% chance of reoffending within two years – could be relied upon, given the Probation Officer’s repeated reference in the body of the report to crimes that the Appellant was at the time being investigated for: he was later acquitted, or charges were never brought. I therefore issued a note to the parties and issued further directions for written submissions. My note and directions is dated 24 July 2025. Unfortunately this resulted in yet further delay. The Secretary of State apparently did not receive the note and directions; then time was sought for an extension to file new evidence, which in the end was never served. The eventual written response, from Senior Presenting Officer Mr Wain, indicates that the Secretary of State is now not aware what the new evidence she had wanted to file might have been. I have therefore reached my decision on the basis of the materials served by the parties prior to the hearing in June, Mr Karnik’s written submissions dated 14 August 2025 and the response by Mr Wain dated 10 October 2025.

Legal Framework

11. The Secretary of State intends to deport the Appellant because he is a ‘foreign criminal’ as defined by s32(1) of the UK Borders Act 2007. He is not a British national, and he has received a sentence of at least 12 months’ imprisonment. Insofar as the Appellant means to resist the deportation action against him on the grounds that it would be a disproportionate interference with his Article 8 right to private and family life, the Secretary of State relies on the sentence of 3 years’ imprisonment handed down following the Appellant’s conviction on 5 November 2018 to show that he is to be classed, for the purpose of Part 5A of Nationality Immigration and Asylum Act 2002, as a ‘medium offender’. The Appellant does not contest any of that.

12. The Appellant submits that he cannot be deported for two reasons. First, that his deportation would breach the United Kingdom’s obligations under Article 3 European Convention on Human Rights: the Appellant submits that he cannot be returned to Zimbabwe because he faces there a real risk of serious harm as a gay man. Second, he submits that there are “very compelling circumstances” in his case such that his deportation would amount to a disproportionate interference with his Article 8(1) ECHR rights: s33(2)(a) of the 2007 Act read with s117(C)(6) Nationality Immigration and Asylum Act 2002.

13. This decision shall follow the following framework. I shall first make findings of fact in respect of the Appellant’s circumstances. I shall then apply those findings to each of his grounds of appeal, under the headings ‘Return to Zimbabwe: the risk of serious harm’ and ‘Section 117C(6): very compelling circumstances’.

Findings of Fact

14. I base my findings of fact in respect of the Appellant’s personal circumstances on all of the evidence before me, but I have had particular regard to the following:

• Statement of evidence of the Appellant dated 26 May 2021; his live evidence given before me, and before First-tier Tribunal Judge Ali (as recorded in her decision 6 July 2022)
• Statement of evidence by the Appellant’s mother AP dated 7 July 2021 and her live evidence as recorded by Judge Ali
• Statement of evidence by the Appellant’s brother TN 14 July 2021
• Statement of evidence by family friend AK 20 June 2021

• Sentencing remarks of Mr Recorder Prosser, Leeds Combined Court 9 November 2011
• Sentencing remarks of HHJ Tremberg, Hull Combined Centre 5 November 2018
• Short format pre-sentence report dated 2 November 2018
• OASys report dated 17 June 2021
• The Secretary of State’s summary of the Appellant’s immigration history

15. In reaching my findings I have had regard to the fact that the Appellant has been convicted of a total of 11 criminal offences1, and that he may consider it to be in his interests to lie in order to gain an immigration advantage. I have also taken into account the fact that he has not always been a reliable narrator (for instance in his assertion in January 2025 that he was cleared of “all charges”) and that there have been periods where he has absconded from immigration control. Having had regard to those countervailing factors, and having considered all of the evidence and the submissions of the parties, I find that the Appellant has given broadly credible evidence about his personal circumstance, which is supported in material part by his mother, who attended the hearing before the First-tier Tribunal. It is further supported by the witness statements of his brother and family friend Mr AK, and although I give less weight to their untested evidence, I find as follows.

16. The Appellant was born in Zimbabwe in March 1995, during a period of extensive political unrest in that country. When he was still a young child his mother left Zimbabwe in order to seek asylum in the United Kingdom. The Appellant, an elder sister and his elder brother Tomson were left behind in the care of their grandparents. The Appellant has never known his father and considered his grandparents, both now deceased, to be his ‘parents’. He describes a difficult childhood. He disliked school and would be regularly beaten up by other pupils. His grandparents were very strict, and an ‘aunty’ who lived in the house was physically, and sexually, abusive towards him. The Appellant today believes that this abuse was very damaging to his development. He attributes the anger and anxiety that he experiences today to this period in his life. His grandparents did not support the Appellant when he reported to them that he was being mistreated at school. They thought that he should be a “strong man”.

17. The Appellant’s mother was granted refugee status in 2003 and on the 7th November 2007 she made applications for her sons to join her here. Indefinite leave to enter was granted to both boys on the 20 December 2007, and they arrived shortly thereafter. They found that their mother had remarried. The Appellant liked his stepfather, and liked school in the UK, although he found it very difficult because he struggled to learn English. The teachers were kind and did not beat him. The Appellant found it “strange” to be reunited with his mother, who was in essence a stranger to him.

18. The Appellant started to “feel different” when he was a teenager. In cross examination Mrs Newton illustrated that he has not given a wholly consistent answer about when he started to realise that he might be attracted to men, having variously said it was when he was 14/15, or 17, but I appreciate that this was not likely to be a ‘light bulb’ moment, and that the realisation would have dawned on him gradually. The Appellant writes in his witness statement:

“I had feelings but I couldn't understand them at the time. I noticed when I was watching TV, I would see men on the TV and I appreciate how men would look. This brought out panic attacks in me and I would start shaking and my heart would beat really fast. It was fear because I had never felt like that before, and I was confused”.

19. The Appellant kept these feelings to himself. He did not feel able to share them with his family. He was confused and he believed that his largely African friendship group would not understand, so he had to hide his true feelings. He describes himself as being a “headstrong” teenager who started “hanging around with a bad crowd of people”. The deterioration in the Appellant’s behaviour resulted in him being placed in local authority care when he was about 15 or 16. His mother was unable to cope with him.

20. It was whilst he was in care that the Appellant first committed criminal offences, after being introduced to the “wrong people”. He admits that in addition to the robbery/attempted robberies that saw him placed in custody, he also committed burglary and went shoplifting during this period. The summary produced by the CPS for the OASys report explains that the attempted robberies involved the Appellant and his co accused approaching people, including other school aged children, in the street and demanding their mobile phones/credit cards. These incidents were described by the trial judge as being “cowardly and nasty”. In another offence he and another teenager entered a domestic dwelling; whilst he only made off with a power cable the aggravating features were found to be that the occupant was particularly vulnerable and asleep upstairs. The robbery for which he received the longest sentence was altogether more serious. He and another boy boarded a bus and demanded the cash box from the driver. When the driver refused he was subjected to a “prolonged attack”. Reflecting in his witness statement, the Appellant expresses regret for all of this. He writes that he is “disappointed and unhappy” with himself. He especially regrets having put his mother through so much stress: “I am so ashamed of myself for that”.

21. After the Appellant got out of the Young Offender Institution he went to college he “just got on” with life. He stayed out of trouble. All of his friends at college were female, but he never had a relationship with a woman. He got his own flat and “life was good”.

22. Things started to “go wrong” for him in about 2017. Because of the change in his immigration status the benefits he had been receiving whilst studying were stopped; he was unable to work. He was asked to leave college because he could not provide them with confirmation of his immigration status. He lost his flat and he had to go back to his mother’s home. He describes this as a “big set back”…“I couldn't work or study so I stayed at home… I was really frustrated and disappointed”. His mother describes how during this period he was out with friends all the time and she felt that he was “lost”.

23. He began to live a ‘double life’. When with his family and friends, all of whom were of African origin, he would conceal his sexual identity. However when he was on his own, he would watch gay porn on his phone and went to a gay club in Hull, where he lived at the time. He had a series of ‘one night stands’ after meeting men at this club, but none developed into a relationship. There is a reference in the June 2021 OASys report to him being in a “long term relationship” at that time but the Appellant denies this. The Appellant describes this part of his life as being very difficult. He writes in his statement that denying his sexuality has negatively affected his mental health: “it is difficult hiding who I am and it's confusing because I want to be honest with myself, but I am also scared and ashamed”. He explains that in his culture – a strongly Christian Zimbabwean background – any reference he heard to homosexuality growing up was negative or derogatory. He writes:

“One day in summer 2017, I was feeling depressed but I couldn't confide in anyone. I was feeling sad and depressed, and it felt like my sadness was getting worse. I felt depressed and low, and it was getting too much for me. I felt like I wanted to end my life and on that day I made a decision to do that... I tried to take a lot of tablets. I took loads of paracetamol…”

This suicide attempt failed because the pills made the Appellant dizzy and sick and he vomited them.

24. The Appellant’ family were finally made aware of his homosexuality because they were told by family friend AK. AK had been asking him about girlfriends for a while and one night when the Appellant was drunk he just told him the truth. AK was, in his own words, angry about this revelation: “I told him as Africans we don’t do these things”. AK ended up telling the Appellant’s brother TN, who at first thought it was a joke. Then he got angry and accused AK of lying. When he realised that it was true, TN went and told their mother. The Appellant’s mother was very upset and a large argument ensued, which ended with him being thrown out of her house. His mother cut him off. In her statement AP confirms this, stating that she had been in a state of shock. Although they have since reconciled, AP continues to struggle to accept his sexuality. In her 2021 witness statement she says: “if I think about it now it shocks me”.

25. The Appellant was then homeless. He started, in his own words, “mixing with the wrong crowd” and “making bad choices”. He was living on the street when someone he knew offered him a place to stay, and bought him some clothes and food. That person turned out to be a drug dealer. After the Appellant had been living in his flat for about two weeks, the man told him that he had to repay him for the rent and expenses. When he said that he couldn’t, the man said that the Appellant “had to work” to pay him back. This work involved dealing drugs. The Appellant says that he was scared and did not want to do any of this. But the man was part of a group from London who carried knives. The sentencing remarks of HHJ Prosser describe how these men got the Appellant using heroin, and then got him to distribute it on their behalf, which he did for several weeks before the incident which led to his arrest. On the day of his arrest the Appellant told one of the men that he did not want to do the work anymore. He stabbed him in the chest and forced him to conceal a packet in his rectum, then sent him out to work. The Appellant describes being on the street, struggling to breathe because of his injury. He knocked on a random door in a street and sought help, asking those inside to dial 999.

26. The Appellant’s account is in large measure supported by the OASys report and the sentencing remarks of Judge Prosser. The record made by the Probation Service confirms that at 06:07 on the 10 September 2018 police were made aware that the Appellant had been stabbed. A condom with drugs inside it was revealed by a scan to be concealed in his rectum. Whilst on ‘bed watch’ in the hospital the Appellant admitted to the police office that “he had been forced into putting an object inside him as he owed a debt and had been stabbed as a result of his involvement with others regarding this debt”. Recognising the Appellant’s plea of guilt, Judge Prosser passed the shortest sentence available to him, having said the following:

“There is no doubt that these were dangerous men, and so it was that on the day of your arrest they prevailed upon you once again to carry drugs. You were reluctant to do so, and they were insistent on you harbouring drugs for them, and indeed one of them inflicted a stab wound on you to make clear what their expectation was of you. So concerned were you at the injury you suffered, that you sought medical help.

Well in my judgment whilst there are elements of you playing a significant role in this drug dealing exercise, taking the heroin and distributing it or trafficking it over a period of several weeks for advantage, there are also elements of you playing a lesser role, and in particular I accept Mr. Genney's submission that's on the available evidence it would appear that you were placed under a significant degree of pressure, not amounting to duress in law, to do what you did”.

27. The Appellant states that he nearly lost his life in this incident, and that he regards it as “life changing”. Reflecting on his offending the Appellant says this:

“It's not that I wanted to commit crime. I wanted to do something but I couldn't find anything that I could do for myself. This played a part in the situation I find myself in now. I am not using it as an excuse, but it made me desperate. I still blame myself for the crimes I committed because I had a choice each time and having a hard life does not necessarily mean you have to be a criminal. I know this. I regret the mistakes I made when I was young. I know that if I had not made those mistakes my life would have been different.”

28. I was not provided with any specific medical evidence, although the Appellant himself told me that he suffers from depression; I note that the most recent OASys report records a prescription for Sertraline.

Return to Zimbabwe: the Risk of Serious Harm

29. My starting point is the country guidance case of LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487 (IAC). Although that guidance is based on evidence that is now over 15 years old, neither party suggested that I should depart from it. Its conclusions, broadly, are that whilst the public discourse in Zimbabwe is extremely homophobic, and that some gay men suffer harm including discrimination, harassment and extortion/blackmail, these harms are not so prevalent and/or serious to amount to a general risk. Male homosexuality is criminalised, but prosecutions are very rare. There is a ‘gay scene’ albeit limited. Active gay-rights organisations such as Gays and Lesbians of Zimbabwe (GALZ) are permitted to operate and have organised pride events. Factors that increase the risk of serious harm to individuals include family circumstances, openness, or a positive HIV diagnosis. Where individuals are targeted for harm, the police are unlikely to provide protection. Bulowayo, the Appellant’s home town, is identified as having “greater tolerance”.

30. More recent evidence is to be found in the July 2024 Zimbabwe Country Policy and Information Note (CPIN): sexual orientation, gender identity and expression. This confirms that gay sex between men remains illegal in Zimbabwe, albeit that there have been no recorded convictions. Gay rights organisations such as GALZ continue to operate, and there is believed to be no general risk of serious harm or persecution for gay men. That said, the CPIN acknowledges that homophobia remains prevalent throughout society, and that there continue to be cases in which gay men are threatened with exposure or reporting to the police by people attempting to blackmail them. GALZ report that in 2019 five men were charged with sodomy in different parts of the country, and that the police are sometimes complicit in extortion schemes [11.1.4]:

‘Even in instances when they are not arrested, the threat of exposure to a homophobic public leaves LGBT persons vulnerable to exploitation through blackmail and other forms of extortion by third parties or law enforcement officials, themselves. In February 2019, a gay man based in Beitbridge was entrapped by another man who had conspired with the police to catch him in a compromising position. They threatened to charge him with sodomy unless he paid them ZAR 1,000.00 the next day … He ultimately paid the bribe out of fear. In March of that same year, another man was connected by his police officer friend to a married man who was looking for an intimate male partner. The victim was compelled to pay a bribe under threat of exposure and criminal charges. He fled the country instead, as he felt he had no other option.’

31. I have accepted the Appellant’s evidence that he is gay, and it is not in issue that he has not lived in Zimbabwe since he was 11 years old. Judge Ali found, and I accept, that the Appellant has no known relatives living in Zimbabwe and that he will have forgotten much about the country. In his submissions Mr Karnik suggested that this long absence from the country would heighten the Appellant’s exposure to serious harm. He would not be ‘enough of an insider’ to know how things work, and would be exposed to risk, particularly of blackmail. Whilst I accept the underlying premise that the Appellant would be particularly isolated and therefore vulnerable, the difficulty with the conclusion is that the men who are victims of such extortion ‘stings’ are, I presume, exposed to them because their families are unaware of their sexual orientation. The Appellant is not in this position, because his only known living relatives are in the UK, and already aware of his sexuality.

32. I certainly accept that as a gay man the Appellant would be exposed to sometimes extreme social prejudice and homophobia in Zimbabwe. I further accept that as someone who is to all intents and purposes an ‘incomer’ he may struggle to fit in, and in the context of his sexuality, find a ‘scene’. That is certainly relevant to my consideration of Article 8, but it is however some way from establishing that he would face a real, that is to say a more than fanciful, risk of serious harm such as violence, arrest or prosecution. The country guidance states that there is not in general a real risk of harm to gay men, and I find no reason to depart from that conclusion in the Appellant’s case. Accordingly I must dismiss the appeal on Article 3 grounds.

Section 117C(6): very compelling circumstances

33. As a ‘medium offender’ it is open to the Appellant to defeat the automatic deportation procedure by establishing that one of the Article 8 ‘exceptions’ set out in section 117C of the Nationality Immigration and Asylum Act 2002 applies to him. Section 117C(4) is concerned with what is termed as ‘exception 1’, private life. This requires the Appellant to prove three matters. The first is that he has lived in the UK for most of his life. For the reasons I explain at my paragraph 6 above, he cannot do this. Although he has lived in his country since he was 11, only about six years of that residence was with valid leave. He cannot therefore avail himself of ‘exception 1’. Section 117C(5) is concerned with ‘exception 2’: family life. The Appellant does not claim to have a family life in the UK capable of engaging this exception, or Article 8 more broadly. To the extent that he does enjoy relationships with his mother and brother, these form part of his private life. He cannot therefore avail himself of ‘exception 2’.

34. In circumstances where a medium offender is unable to demonstrate that either exception applies in his case, he can only succeed by showing, pursuant to s117C(6) of the 2002 Act, that there are nevertheless “very compelling circumstances” in his case which would mean that deportation would be disproportionate: NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662. This is an extremely demanding test. “Compelling” means circumstances which have a powerful, irresistible and convincing effect, and the height of this threshold is further elevated by the use of the adverb “very”: Secretary of State v Garzon [2018] EWCA Civ 1225. It is reflective of the highest level of public interest in deportation and will only be met in the rarest of circumstances: HA(Iraq) [2022] UKSC 22. In applying this test I am required to undertake a holistic evaluation of all relevant circumstances, and to take a ‘balance sheet’ approach, weighing in turn each of the factors before reaching a global conclusion.

35. I start with those matters submitted by Mr Karnik to weigh in the Appellant’s favour.

36. The first is the significant length of the Appellant’s stay in the United Kingdom. The Appellant was 11 years old when he arrived here. He was given indefinite leave to enter, and so was ‘settled’ from the date of his arrival until that leave was extinguished by the deportation order. The Appellant has therefore spent approaching twenty years in this country. In its consideration of whether the Appellant is “socially and culturally integrated” in the UK the First-tier Tribunal was satisfied that this was the case, and I see no reason to take a different approach. In CI (Nigeria) v Secretary of State for the Home Department [2019] EWCA Civ 2027 the Court points out that the rationale of the test is to determine whether the person concerned has established a private life in the UK which has a substantial claim to protection under Article 8. The essence of such a private life was defined as follows:
58. Relevant social ties obviously include relationships with friends and relatives, as well as ties formed through employment or other paid or unpaid work or through participation in communal activities. However, a person's social identity is not defined solely by such particular relationships but is constituted at a deep level by familiarity with and participation in the shared customs, traditions, practices, beliefs, values, linguistic idioms and other local knowledge which situate a person in a society or social group and generate a sense of belonging. The importance of upbringing and education in the formation of a person's social identity is well recognised, and its importance in the context of cases involving the article 8 rights of persons facing expulsion because of criminal offending has been recognised by the European Court. Thus, in the Üner case at para 58, the court considered it "self-evident" that, in assessing the strength of a foreign national's ties with the "host" country in which they are living, regard is to be had to "the special situation of aliens who have spent most, if not all, of their childhood in the host country, were brought up there and received their education there."
37. The Appellant has grown up here; he has friends and family, and a familiarity with, and understanding of, the country generally. One important aspect of his integration is that he is now able to live openly as a gay man. I am satisfied that these are the kinds of connections that parliament had in mind when it approved this test and I find it to be made out. I am satisfied that these are connections of such depth and longevity that they cannot sensibly be said to have been broken by his two periods of imprisonment, and Mrs Newton certainly did not attempt to persuade me otherwise.

38. The other side of that coin is that in the time that he has spent in this country, the Appellant’s ties to his country of origin have markedly diminished. The final limb of the ‘private life’ test set out in s117C(4) NIAA 2002 asks me to consider the extent to which the Appellant would be able to integrate into Zimbabwean society. The relevant test is considered in Secretary of State v Kamara [2016] EWCA Civ 2027 [at 16]:
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. Applying these considerations I accept that there are certainly significant practical obstacles for the Appellant in returning to Zimbabwe. He has not lived there for approaching 20 years. He has never lived there as an adult. He knows no one in that country. I accept that he will a limited understanding of ‘how things work’ there. He has no relevant education or qualifications that might assist him in finding well paid employment. He may well be fearful or reticent about disclosing his sexuality to some people. All of that is likely to be a challenge. Whilst I have certainly weighed these obstacles in the balance, I am not satisfied that they do amount to the ‘very significant’ obstacles referred to in the statute. The focus of this element of the ‘private life’ test is the individual’s ability to enjoy relationships with other people. I am mindful that his life in the UK has not been easy, but there is no evidence that the difficulties he has faced have made it difficult for him to connect with other human beings. The evidence accepted in LZ (Zimbabwe) was that Bulawayo, the Appellant’s home town, as a more open and tolerant atmosphere; there is something of a gay scene. Regardless of whether the Appellant has a romantic or sexual relationship in his future, the evidence indicates that in that city he is likely to meet other like minded people who accept him for who he is. There is nothing in the evidence before me to indicate that the Appellant would be unable to found for himself new friendships in Zimbabwe.

40. I now turn to consider matters particular to the Appellant’s personal history. Having heard his evidence I have accepted that his has not been an easy life. Much of it has been characterised by violence, uncertainty and instability. The forced migration of his mother deprived him of a relationship with her during key formative years. In her absence he was bullied at school. He was abused at home. Then brought to this country as an eleven-year old, the disruption proved too much for him. He rebelled against his mother, and ended up in the care system. He met the ‘wrong crowd’ and was led into offending, all the while struggling with the growing realisation that he was gay. It is against this background that he embarked on a spree of offending in 2011, which resulted in all but 2 of his 11 convictions.

41. It is of note that there was, after his release from the Young Offenders’ Institution, a period of respite. The Appellant had completed vocational courses in prison, was engaged with rehabilitation work, was enrolled in college and was, in his own words “doing good”. He had a group of pro-social friends, and successfully managed to distance himself from the boys that he had got into trouble with before. Unfortunately all of that changed when his leave to enter was withdrawn. The Appellant had to leave college, was unable to work or claim benefits. In the words of his mother, and family friend AK, he “became lost” during this period. This coincided with his coming to terms with his sexuality and the breakdown of his relationship with his mother, after being 'outed'. Finding himself homeless, he was once again drawn back into criminality after a seven year period of rehabilitation, under the thrall of “dangerous people” who were able to exploit him in the manner described by the trial judge.

42. As the Appellant himself acknowledges, none of that is an excuse for criminality, but it serves as important context for what went wrong in his life at such an early age. In CI (Nigeria) the Court considered the deportation appeal of a man who had, like the Appellant, come to the UK as a child, suffered trauma and abuse and then offended as a minor. In considering the approach to be taken to those facts in the s117C(6) balancing exercise, the Court said this:
“…Importantly, the offending needs to be seen in the context of the abuse and neglect which CI suffered throughout his childhood and, apart from a period of a year or so during which he was in foster care, his grossly deficient parenting. Save for one reference in passing to CI's "troubled childhood history", it does not seem to me that, in assessing whether there were very compelling circumstances, the judge took this into account”.
43. I am satisfied that these features of the Appellant’s personal history are important factors in the balancing exercise that I am required to undertake, and I attach significant weight to them.

44. Those are the matters raised in the Appellant’s favour. Against those, I must consider the public interest in the deportation proceeding.

45. I start with the nature and seriousness of the offences committed by the Appellant.

46. The PNC provided by Mrs Newton confirms that the Appellant has accrued 6 convictions for 11 offences. Nine of these were in 2011: 8 ‘theft and kindred offences’ and 1 failure to surrender at the appointed time. Although these all occurred when the Appellant was a minor, the harm those offences caused to others should not be minimised. Street robbery, with its implied threat of violence, is a frightening experience for anyone, but for schoolchildren it has the potential to leave deep scars, even when committed by their peers. Domestic burglary, even when the occupant sleeps through the event, is rightly judged to be a serious offence because we feel violated and terrified by a stranger coming into our homes uninvited. The robbery of the bus driver was a particularly nasty assault. The victim was attacked at work, and in trying to defend his employer’s takings was subjected to a prolonged assault by the Appellant and his co-defendant. I have no difficulty in accepting that the effects on that driver would have been profound and long lasting. These offences therefore attract a significant amount of weight in the balancing exercise.

47. The severity of the crime committed by the Appellant in 2018 is best reflected in the sentence he received. Even though the trial judge accepted his account of the facts, that he had been bullied, frightened and indeed stabbed by this gang, the court still handed down what is a very significant sentence of imprisonment. It did so noting the following. First, that although the Appellant was clearly under significant pressure, and had been subject to violence on the day that he was arrested, by his own admission he had been working for this gang over a period of some weeks prior to the day he was actually stabbed by them:

“… down on your luck, you threw your lot in with a group of men who, it quickly turned out, were a drug dealing gang, dangerous people. They got you using heroin and then they got you to distribute it on their behalf. Several weeks went by as you continued to run substantial amounts on behalf of this drug dealing gang, and the gravamen of your offending is in continuing to do that and failing to break away from them when you had the opportunity”.

48. That was, ultimately, a choice the Appellant made. He could have simply left the area in order to avoid this gang – he was at the time street homeless so it would have made no difference to him where he went. It is clear from the remarks of the trial judge that this is why, notwithstanding the “significant amount of pressure” the Appellant was under, he is held to be personally culpable for the supply of heroin. Heroin, like other class A substances, has hugely detrimental effects, not just for its users, but for their families and friends, and for society as a whole. Its supply results in a ripple effect of criminality, as addicted users try to keep up with their habit. This index offence therefore attracts a very substantial weight in my balancing exercise.

49. The Appellant’s last recorded conviction was in November 2024 of last year when a police search revealed the Appellant to be in possession of a quantity of cannabis deemed to be ‘for personal use’. He spent a night in the cells and the cannabis was destroyed. In submissions Mrs Newton very fairly declined to ask me to attach any particular additional weight to this offence. She did though submit it appropriate to have regard to it when I consider the questions of rehabilitation and propensity to reoffend, and it is to those matters that I now turn.

50. The last assessment undertaken by the Probation Service is dated 17 June 2021 although I accept Mr Karnik’s submission that it was likely prepared a year earlier, when the Appellant was recalled to prison. The headline conclusions of that report are that the Appellant at that time presented a 21% chance of reoffending within one year of release, and a 33% chance of reoffending within two years. I accept Mr Karnik’s written submission that those predictions have to be viewed with a significant degree of caution. They are obviously now quite old, and that is relevant, but as my directions to the parties identified, there is another problem with the way that the author approached those calculations. There is in the body of the report repeated reference to the Appellant having reverted to criminality since his release from prison in the spring of 2020. In fact the Appellant was never convicted of any of the crimes that the author alludes to. Reading it again it has not been possible for to safely extricate those predicted rates of reoffending from those matters. I therefore place no weight on them.

51. That is not to say, however, that the report is entirely irrelevant. Setting the predictions to one side, the narrative set out about the Appellant’s attitude is revealing. On this matter the evidence of the probation service, in both 2018 and 2021, is singularly unhelpful to him. Both reports stress that in his interactions with the service the Appellant always portrays himself as a victim, and that he has been consistently unable to recognise that he had any culpability for his involvement in dealing heroin. Having been offered support and courses whilst on licence, the Appellant has failed to utilise these to his advantage. As the 2021 report puts it:

“During his time in the community [the Appellant] failed to complete any work in association with his poor thinking and problem solving skills. Each week he demonstrated a lack of interest in relation to making changes to this area. He began to attend late and wanted to have fewer appointments but appeared to fail to accept that whilst he continued to demonstrate his antisocial thinking his risk remains assessed as high….”

52. That report continues:

“during this period of supervision he failed to take any responsibility for his situation and behaviours he failed to recognise that it is his own lifestyle choices and behaviours that has brought him to this position, however, he maintained that it is only as a result out of coming to this country he blamed the school he went to, and immigration as key factors. He was extremely rigid in this and was extremely belligerent whenever we discussed this aspect of his situation”

53. And further:

“… during his second sentence he completed the Thinking Skills Programme but his behaviour during the programme was concerning on occasions. He appears to not have any real respect for his local community and others and struggles to comply with legal familial and social boundaries. This has now resulted in him having a signed deportation order against him which he has identified as being a source of stress. He refers to high stress levels impacting on his negative behaviour and reinforcing the need to act out.….”

54. In his evidence before me Appellant expressed regret for the way that his life has gone, and has in particular emphasized how sorry he is for all the stress he has caused to his mother. I accept that. What he has not done, on the evidence before me, is demonstrate that he has taken positive action to address his offending behaviour. As the OASys report indicates, he was enrolled on a Thinking Skills Programme whilst in prison, but his behaviour during that course was “concerning”. His feelings of guilt and concern for this mother did not stop him using cannabis again, nor as the author notes, associating with anti-social peers in breach of his licence requirements.

55. Drawing all of this together I am driven to conclude that the appeal must be dismissed. This has not been an easy case to determine. Whilst the Appellant has committed some horrible offences, I have considered these in light of his circumstances. A difficult childhood; a more difficult adolescence; familial rejection, local authority care, homelessness and a “significant amount of pressure from dangerous criminals” are the backdrop to the decisions he has made. That does not however, absolve him of responsibility for his actions, as the trial judge, and the Appellant himself have acknowledged. Nor can any of that be of consolation to his victims. This has been a finely balanced decision, but in the end it has been the lack of evidence of rehabilitation that has caused the public interest to prevail. The Appellant has been committing criminal offences since he was a teenager, and on the evidence before me, there is simply insufficient cause to believe that he has managed to positively address that pattern of behaviour. Without such evidence, I have been unable to find that the extremely demanding test in s117C(6) has been met.

Decisions

56. The appeal is dismissed.

57. There is at present an order for anonymity in this ongoing protection appeal.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
10 November 2025