UI-2024-004091

• Status of case: Unreported
• Hearing date: 20 Feb 2025
• Promulgation date: 11 Mar 2025
• Publication date: 26 Mar 2025
• Last updated on: 26 Mar 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004091


First-tier Tribunal No: HU/57191/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11th of March 2025

Before

UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

MYRON NARTEY
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Papasotiriou, Counsel instructed by Legal Rights Partnership
For the Respondent: Mr N Wain, Senior Home Office Presenting Officer

Heard at Field House on Thursday 20 February 2025


DECISION AND REASONS

BACKGROUND

1. By a decision promulgated on 17 December 2024, the Tribunal (myself sitting with Deputy Upper Tribunal Judge Clarke) found an error of law in the decision of the First-tier Tribunal Judge dated 9 July 2024 dismissing the Appellant’s appeal against the Respondent’s decision dated 31 May 2023 refusing his human rights claim made in the context of an application for further leave to remain in the UK. In consequence of the error found, we set aside that decision and gave directions for a hearing to re-make the decision in this Tribunal. The Tribunal’s error of law decision is appended hereto for ease of reference.

2. The facts of the Appellant’s case are set out at [§2] to [§4] of the error of law decision and we do not need to repeat those.

THE ISSUES AND LEGAL FRAMEWORK

3. The Respondent has refused the Appellant leave to remain on the basis that he cannot meet the suitability requirements of the Immigration Rules (“the Rules”) due to his persistent offending and because his presence in the UK, on account of that offending, is not conducive to the public good. The first issue for us to decide is whether the Appellant is a persistent offender and whether he is fails to meet the Rules on suitability grounds.

4. In the event that the Appellant cannot meet the suitability requirements of the Rules, we do not need to consider his case further within the Rules as he could not meet those. If we find that he can meet the suitability requirements we need to consider whether he meets the eligibility criteria based on his private life (the Appellant does not rely on having a family life within the Rules). The requirements relied upon by the Appellant are based on a combination of length of residence and age (under paragraph 276ADE(1)(v) of the Rules) and that there are very significant obstacles to his integration in Ghana (paragraph 276ADE(1)(vi) of the Rules).

5. Although the only issue in this appeal is whether the Appellant’s removal would breach section 6 Human Rights Act 1998, if the Appellant meets the Rules that would point towards the allowing of his appeal on human rights grounds (see TZ (Pakistan) and PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109). If the Appellant does not meet the Rules, that is a relevant factor pointing in the other direction which needs to be taken into account in the balancing exercise.

6. Outside the Rules, the Appellant relies on his private life including his relationship with his family in the UK. The interference with the Article 8 rights of his family members in the UK is also relied upon. The Appellant says in his most recent statement that he is also in a relationship but that is a short-term one (six months) and we have no evidence from his current partner.

7. The Appellant relies heavily on the obstacles which he says would face him on return to Ghana. Although the “very significant obstacles” test does not apply directly when assessing his case outside the Rules, the Appellant relies on that test by analogy to his case also outside the Rules. We remind ourselves of what was said about that test in Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 at [§14] as follows:

“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.”

Although this is not a deportation case, the test as there described applies equally to the removals context and we accept is also relevant by analogy when one is considering the interference with the Appellant’s private life outside the Rules.

8. When assessing Article 8 ECHR outside the Rules, we are required to conduct a balancing exercise between the interference with the Appellant’s private life and the rights of those family members who may be impacted by his removal against the public interest. We are required in that analysis to have regard to the factors in section 117B Nationality, Immigration and Asylum Act 2002 (“Section 117B”). As this is not a deportation case, we do not have regard to Section 117C, but the Appellant’s criminal offending remains relevant to the public interest in his removal.

THE EVIDENCE

9. Directions were given in the error of law decision for the filing of further evidence by the Appellant. We have before us an updated statement from the Appellant dated 13 January 2025. Mr Wain also produced an updated PNC report dated 17 February 2025 (“the PNC Report”).

10. We had before us also a revised bundle of documents running to 161 pages (pdf). Although Judge Zucker and Mr Wain did not have that bundle (but instead had an earlier bundle running to 140 pages), this did not create any problems for the conduct of the hearing. The Tribunal has had regard to all the evidence in the 161 pages bundle but refers below (as [B/xx]) only to that evidence which is relevant to our determination. We also heard oral evidence from the Appellant and have taken that into account in what follows.

11. In addition to the bundle, we had helpful skeleton arguments from Mr Papasotiriou and Mr Wain.

12. Having heard evidence from the Appellant and submissions from Mr Wain and Mr Papasotiriou, we indicated that we would reserve our decision and provide that with reasons in writing which we now turn to do.

DISCUSSION

The Appellant’s Offending: Persistent Offending/ Suitability Requirements

13. The Appellant’s first recorded offence was in February 2009 when he received a reprimand for shoplifting. He was then aged only fourteen. He has since received eleven convictions for fourteen offences together with a further warning for shoplifting in 2010 and a caution in 2014 for possession of drugs.

14. The Appellant’s offences are aptly described as ones involving dishonesty (theft and evading payment of rail fares) and possession of drugs. Although the Appellant was convicted of possession of Class A drugs in 2017 and 2018, his other drugs offences and those since then have been for possession of Class B drugs. To that extent, we accept Mr Papasotiriou’s point that there cannot be said to be an escalation of the Appellant’s offences.

15. Equally, however, it is of particular note that the Appellant continued to offend after his previous appeal was allowed (in May 2019) and has even continued to offend during the currency of this appeal (in July 2024).

16. In his most recent statement dated 13 January 2025, at [§5-7], the Appellant says the following:

“5. I also just wish to state that my last offence was in July 2022, being 2 ½ years ago. Prior to that I last had difficulties in 2018. My last appeal was allowed in 2019, in the knowledge of those earlier issues. Since that allowed appeal, almost 6 years have now passed, and I have let myself down once since then. I am determined not to offend again. I am all the more aware of what is at stake for me now. I implore the court not to throw me into what would be hell for me.
6. I have successfully managed to distance myself from my previous circle of friends and do not have any associations with them anymore. I have a good job as a bar manager and I have been in a relationship with my partner, Souha Kadlin for 6 months now. I continue to work for Driplondon, although, I have been laid off for this month given my employer is having to have some restoration works done at the work premises. I am doing ad hoc work and also some promotion work. I will return to my main job at the end of January.
7. Finally, I wish to emphasise that whilst undoubtedly wrong and something which I deeply regret, my last offence, took place in a particular context. I had just met a partner and was keen to impress her. She gave me the amphetamine tablet and despite her insistence I did not consume the tablet but I did take possession of it when she said I should keep it, in case I needed it later. I have learnt that I should not try to impress anyone and that I should be true to myself. There is too much at stake for me and I know that I cannot jeopardise my entire life for any form of foolishness. I again apologise for my wrong doing and am more determined than ever before not to offend again.”

17. The Appellant there mentions his earlier appeal which was allowed by the First-tier Tribunal in 2019. The decision in that appeal appears at [B/146-161]. Having set out the Appellant’s evidence as to the circumstances in his past upbringing which he said had led to his offending, the Judge records at [§39] onwards the Appellant’s contrition for his offending. At [§48] it is said that the Appellant “has seen the folly of his ways and implores the court to give him one more chance”.

18. Although the Judge accepted that the Appellant was a persistent offender and could not meet the suitability requirements of the Rules in the period up to 2018, the Judge was persuaded by the Appellant’s evidence (untested in cross-examination) and the evidence of his mother that the Appellant’s “remorse [was] genuine and sincere”. For that reason, he found that the Appellant was no longer a persistent offender at the date of hearing (April 2019). He therefore allowed the appeal. However, at [§97] of the decision, the Judge said this:

“Although the appellant’s appeal succeeds, it may be prudent to remind him that if he
were to ever suffer a relapse and return to his criminal past, there is nothing preventing the respondent from making a decision to remove or deport him. In such
circumstances, he may find himself in a position where he has neutralised many of the
key arguments which he relies upon at this hearing to challenge the respondent’s
decision.”

19. Despite that warning, following the allowing of his appeal, the Appellant went on to offend. He has since clocked up a further four offences involving possession of drugs.

20. The most recent offence committed in July 2024 was one of possession of Class B drugs (cannabis) for which he was convicted on 1 October 2024. As is self-evident from the statement set out above, the Appellant did not disclose this conviction. We should also add that it is not correct to say that he had only offended once since the first appeal. Besides the offences in July 2022 which he does admit, he was also convicted of possession of Class B drugs in January 2021 for an offence in May 2020.

21. Confronted with the PNC Report, we permitted Mr Papasotiriou to examine the Appellant in chief in relation to the most recent offence which he had not admitted in his updated statement. The Appellant sought to explain this by saying that he had attended a festival having obtained a ticket from a friend. He did not want to go and decided to sell the ticket outside the venue. As a result of ticket fraud, the police were taking an interest in those selling tickets in this way. He was therefore searched, and the cannabis was discovered. The Appellant said that this offence was “not on his mind” or had “slipped his mind”. When asked why he had offended given his stated intention not to do so, he said that he was “going home” (where he suggested that the possession of the cannabis would not be illegal) and that offence was minor.

22. We do not understand the Appellant’s contention that possession of the cannabis would have been legal had this occurred in his home. True it is that the possession probably would not have been discovered but possession in his home would be no less illegal. We do not accept the Appellant’s explanation of his reason for not mentioning the offence. It lacked credibility that he would have forgotten such a recent conviction. We find that the Appellant intentionally lied in his statement and would have continued to do so had he not been confronted with the PNC Report. This tends to undermine his credibility more generally although we accept of course that just because he has lied about one aspect of his case does not mean that he has lied about other aspects.

23. We have regard to the guidance given in Chege (“is a persistent offender”) [2016] UKUT 187 as follows:

 “1. The question whether the appellant "is a persistent offender" is a question of mixed fact and law and falls to be determined by the Tribunal as at the date of the hearing before it.
….
3.     A "persistent offender" is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or that the continuity of the offending cannot be broken. A "persistent offender" is not a permanent status that can never be lost once it is acquired, but an individual can be regarded as a "persistent offender" for the purpose of the Rules and the 2002 Act even though he may not have offended for some time. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date. Each case will turn on its own facts.”

24. We accept Mr Papasotiriou’s submission that the Appellant’s offences are largely at the lower end of the scale and for that reason are marked by non-custodial penalties. However, that does not affect the continuous nature of the offending. There is an offence recorded in almost every year between 2009 and 2024 with a short hiatus at around the time of the previous appeal. Particularly in light of the Appellant’s offending after the decision in the previous appeal and the most recent offence, we do not accept that the Appellant has any intention of reforming. We anticipate that he will continue to offend as he did after the previous appeal and despite the warning he was given about the consequences of further offending.

25. We take into account Mr Papasotiriou’s submission and the Appellant’s evidence about his difficult upbringing as also recorded in the previous appeal decision. However, the Appellant is now an adult and cannot continue to excuse his behaviour based on his past. He is and has for some time been responsible for his own actions and must face the consequences of those actions. Nor does that difficult upbringing have any impact on whether the Appellant can properly be described as a persistent offender.

26. This is not a deportation case (unlike Chege). However, that does not impact on the applicability of the guidance given in that case to this. The Respondent relies on suitability grounds for refusing the Appellant further leave to remain. She relies on S-LTR.1.5 and S-LTR.1.6 of Appendix FM to the Rules which read as follows:

“S-LTR.1.5. The presence of the applicant in the UK is not conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.”
“S-LTR.1.6. The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3. to 1.5.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.”

27. It was suggested by Mr Papasotiriou in his skeleton argument that the Respondent does not rely on S-LTR.1.5 referring only in the decision under appeal to S-LTR.1.6. Although we accept that neither the decision under appeal nor the Respondent’s review (at [B/104-111] and [B/142-145] respectively) make express mention of S-LTR.1.5, it is implicit, in particular in the review that the Respondent does rely on S-LTR.1.5 by reference to the Appellant being a persistent offender. In any event, as Mr Papasotiriou acknowledges in his skeleton argument, there is “some overlap” between the two grounds. As he points out and we accept, there must be some difference between the two. However, we do not accept his proposition that the Appellant’s conduct has improved. His offending may not have escalated but the pattern of offending shows that his conduct continues to offend against the laws of this country and as such his presence remains “undesirable”.

28. Mr Wain drew our attention to Mahmood (paras. S-LTR.1.6. & S-LTR.4.2.; Scope) [2020] UKUT 376 (IAC). Although a very different case from this, what is said at [50] of the decision is relevant for our purposes. That reads as follows:

“At the outset and observing that it was not pursued by Mr. Mustafa with vigour before us, the Tribunal rejects the contention advanced by the grounds of appeal that paragraph S-LTR.1.6. is discretionary in nature. The appellant’s submission places misconceived reliance upon the requirement as to the establishment of conduct making presence in this country ‘undesirable’ as being capable, by itself, of introducing a balancing exercise into the assessment. However, we are satisfied that this submission fails to engage with the clear stricture of paragraph S-LTR.1.1. that a mandatory refusal will result if one or more of seven discrete factual circumstances are established and paragraph S-LTR.1.6. identifies one such circumstance.”
 
29. We agree that paragraph S-LTR.1.6 as well as S-LTR.1.5. is mandatory. Both refer back to S-LTR.1.1. which reads as follows:

“The applicant will be refused limited leave to remain on grounds of suitability if any of paragraphs S-LTR.1.2. to 1.8. apply.”
[our emphasis]

30. For the foregoing reasons, we conclude that the Appellant is a persistent offender. As a result, paragraph S-LTR.1.5. applies to his case. Even if that were not relied upon, we conclude further or in the alternative that paragraph S-LTR.1.6 applies.

31. Accordingly, the Appellant is precluded from succeeding within the Rules. We do not therefore consider the argument put forward by Mr Papasotiriou that the Appellant could rely on paragraph 276ADE(1)(v) due to having been given leave in the past based on his age and length of residence. We do however take into account the Appellant’s length of residence and age when considering his case outside the Rules. We therefore turn to consider the Appellant’s case outside the Rules.

The Appellant’s Integration in Ghana: Very Significant Obstacles

32. Although, as we have already recorded, the test in paragraph 276ADE(1)(vi) does not directly apply outside the Rules (and cannot be considered within the Rules in light of our conclusions on suitability), it is appropriate to consider whether that test is met when looking at the Appellant’s case outside the Rules.

33. The Appellant relies in large part on an expert report of Professor Saida Hodzic dated 7 June 2024 (“the Expert Report”). The Expert Report appears at [B/86-97]. Professor Hodzic is an Associate Professor of Anthropology and Feminist, Gender and Sexuality Studies at Cornell University in New York. She says that Ghana is one of her “main regional areas of speciality” and that she has “conducted extensive field research in Ghana since 2002, spending one year in northern Ghana and six months in Accra”. Her more recent research however appears to be from reading publications. We accept however that on the face of the Expert Report and the experience there set out she appears to be qualified to comment on the matters raised in the report.

34. Mr Wain drew to our attention that Professor Hodzic is a member of the American Anthropological Society and to an article written by that organisation based on which he submitted that Professor Hodzic could not be seen as an independent and impartial expert. We do not accept that submission. Professor Hodzic has confirmed that the report is her own expert opinion and that she is independent of the Appellant and his legal representatives. However, as appears below, we do have concerns about the level of her expertise and as a result of those concerns, we can give the Expert Report little weight.

35. A summary of Professor Hodzic’s conclusions appears at [B/88-89] as follows:

“Mr. Nartey’s economic and social survival and mental health and well-being cannot be guaranteed in Ghana. He does not possess any of the attributes that are required to reintegrate into Ghanaian society: the knowledge of contemporary Ghanaian culture, social networks required to obtain employment and housing, the Ghana national ID card which is required to obtain basic services (health insurance, housing and employment, banking and phone). Given the scarcity of jobs and housing in Ghana, and the prejudice against involuntarily returned migrants, Mr. Nartey would not be seen as eligible for jobs or housing. If Mr. Nartey were to return to Ghana, he would be subject to social isolation, marginalization, and stigmatization. He would also be likely to experience emotional distress and a mental health crisis.”

36. It is entirely unclear to us how Professor Hodzic claims to be able to comment on the Appellant’s mental health as there is no medical evidence of any vulnerabilities in that regard. Professor Hodzic’s understanding of the Appellant’s situation derives from what she has been told by his legal representatives which includes for example that the Appellant no longer takes illegal drugs and has only been found “in violation of the law” once in the previous six years which is contrary to the PNC report. Professor Hodzic confirms that she has not met or had any personal communication with the Appellant.

37. Professor Hodzic bases her opinion of the difficulties which the Appellant would face on return in part on the fact that he does not have a Ghana national ID card. She deals with this issue at [B/89-90]. She says that without a residential address the Appellant would not be eligible to apply for this card and that there are substantial delays in the obtaining of one even once an application is made. Without this, she says that the Appellant would be unable to access services such as a bank account, health insurance, voting registration, driving licence or SIM card for a mobile phone. She bases her opinion about delays in the system on publications from 2022 and 2023.

38. Mr Wain however drew our attention to a website operated by the Ghanaian authorities which refers to an online process for registering for a Ghanaian ID card including from abroad. There are some documentary requirements such as providing an original birth certificate or passport showing Ghanaian nationality for those born in the UK but there is nothing to suggest that the Appellant does not have at the very least a birth certificate. In fact, it appears that he also has a Ghanaian passport albeit expired ([B/135]). There is a fee for an application from abroad (US$115) but there was at the time of the hearing no evidence that the Appellant could not use this route to apply prior to removal.

39. Although Mr Papasotiriou submitted that the website does not refer to the time taken to process such an application and continued to rely on what Professor Hodzic says about delays in the system, our concern was that Professor Hodzic was seemingly unaware of this option and did not even mention it.

40. Following the conclusion of the hearing, we received a letter from the Appellant’s solicitors seeking to adduce further evidence from Professor Hodzic. The application was made relying on principles set out in SD (treatment of post-hearing evidence) Russia [2008] UKAIT 00037. That guidance refers to the principles in Ladd and Marshall [1954] 1 WLR 1489. The guidance in SD reads as follows:

“In the rare case where an immigration judge, prior to the promulgation of a determination, receives a submission of late evidence, then consideration must first be given to the principles in Ladd v Marshall [1954] 1 WLR 1489. Under those, a tribunal should not normally admit fresh evidence unless it could not have been previously obtained with due diligence for use at the trial, would probably have had an important influence on the result and was apparently credible. If, applying that test, the judge was satisfied there was a risk of serious injustice because of something which had gone wrong at the hearing or this was evidence that had been overlooked, then it was likely to be material. In those circumstances, it will be necessary either to reconvene the hearing or to obtain the written submissions of the other side in relation to the matters included in the late submission.”
[our emphasis]

41. Annexed to that letter is a further letter from Professor Hodzic. She says that she “was not aware of any publicity regarding the proposed roll-out of the global Ghana card application, which started in October 2024”, the inference being that she could not have referred to this in the Expert Report which pre-dated the roll-out.

42. Whilst we accept that if the roll-out occurred after the Expert Report and there was no prior publicity about it, Professor Hodzic could not have dealt with it in that report. However, that does not excuse the failure of her or the Appellant’s legal representatives to refer to it subsequently. The Appellant was given the opportunity by a decision promulgated in December 2024 to update the evidence for a hearing which occurred in February 2025. The speed with which the Appellant’s representatives were able to obtain Professor Hodzic’s evidence about this development following the hearing shows that there was ample time to obtain an update to the expert evidence in relation to any matters covered in the Expert Report. That clearly was not done and, if the Respondent had not raised this issue, the Tribunal might well have been misled by Professor Hodzic’s evidence into thinking that the Appellant would have to wait until his return to Ghana to even apply for the Ghana ID card (with the consequences which she said would flow from this).

43. We do not accept therefore that the evidence could not have been obtained previously with due diligence. However, as the Respondent’s skeleton argument was filed only the day before the hearing before us and that this issue forms a significant part of the expert’s evidence and the Appellant’s case, we have decided to admit the further letter from Professor Hodzic.

44. We have carefully considered whether we need to obtain a response from the Respondent to the further evidence but, having read Professor Hodzic’s letter, we have decided that this is unnecessary. We set out in full what Professor Hodzic says in her letter about the further evidence as it is relatively short:

“My June 2024 report did not refer to the possibility of applying for the Ghana card from within the UK because that possibility did not exist then. I was not aware of any publicity regarding the proposed roll-out of the global Ghana card application, which started in October 2024.
Even now there remain uncertainties regarding the practicalities of this process for Mr Nartey as the online application form requires information in mandatory form, such as an address in Ghana, which Mr Nartey is not able to provide.
At this point, it is unclear whether Mr Nartey will have difficulty obtaining a Ghana card. Ghana has a two-year backlog in printing Ghana Cards. The National Identification Authority issued a press release on February 18th stating that they received 700,000 pieces of blank cards and will be remedying a backlog dating to 2023. They did not state how many pending applications they have at this time, whether the 700,000 blank cards will suffice to resolve the two-year backlog, or whether the backlog applies to the global rollout.”

45. Professor Hodzic provides with her letter two press articles. The first going to the date of roll-out of the international card is dated 22 October 2024 and refers to roll-out beginning in Denmark. It is however of note that this is said to follow a “successful pilot registration in North America” (where Professor Hodzic is based). It is not said when this began.

46. Professor Hodzic does not produce a copy of the application form which she says requires as mandatory information an address in Ghana but we have to say looking at this press article, that we find that surprising since the press article refers only to registration being open to all those over the age of six with “valid Ghanaian passports and birth certificates” and that, even without those, the process can be completed using a vouching system. We accept that the latter may be difficult for the Appellant as that requires two non-relatives or a relative with a Ghana card to vouch for the person (although it may be that the Appellant’s mother has one) but there is nothing to suggest that the Appellant does not have a valid Ghanaian birth certificate. He also has a passport albeit expired. There is no reason why he could not apply for an updated passport if that were required to apply for the Ghana Card. It is also worth noting that the purpose of the initiative is “to register all Ghanaians at home and abroad” which suggests that it is open to those living abroad.

47. In relation to delays in the issuing of Ghana Cards, we accept that the press release relied upon does refer to a backlog of records pending since 2023. What Professor Hodzic does not mention however is that it goes on to refer to “more than 600,0000 Ghana cards that have been printed but remain uncollected at the various regional and district offices since 2018” which the authorities are seeking to ensure are distributed. This suggests that whilst there are backlogs in the system, the authorities are and have been in the past working hard to resolve them. In any event, as Professor Hodzic acknowledges, the press release does not mention whether the delays extend to the international roll-out. She appears to assume that a lack of evidence indicates that the same delays would apply. We disagree. The fact that a system piloted in North America is being extended Europe wide suggests quite the opposite. It is difficult to see why the system would be rolled out (in late 2024) if demand could not be met.

48. For those reasons, even taking into account Professor Hodzic’s further letter, we conclude that the evidence provided by the Respondent undermines any weight we can place on Professor Hodzic’s evidence about the Appellant’s inability to obtain the ID card within a reasonable time; the evidence is that the Appellant could obtain the card prior to departure from the UK.

49. Once that is accepted, much of Professor Hodzic’s evidence is equally undermined because her concerns about the Appellant’s ability to integrate depend in large part on the Appellant’s inability to source housing, employment and other basic services without such a card.

50. We take into account what Professor Hodzic says about the way in which jobs are generally sourced in Ghana (via friends and family). She is however seemingly unaware of the Appellant’s apparent resourcefulness in finding employment in the UK even with the criminal record he has. Indeed, the Appellant himself said in evidence that he had “always found a way of getting work” as he shares his mother’s work ethic.

51. What is most concerning about Professor Hodzic’s evidence about employment is her assertion that 77.4% of those unemployed in 2023 were aged 15-35 years and that youth unemployment rose between 2022 to 2023 by 14.6%. That assertion is drawn from the Ghana 2023 Annual Household Income and Expenditure Survey.

52. Mr Wain however drew our attention to a Country Policy and Information Note dated December 2024 entitled “Ghana - Internal relocation” (“the CPIN”). Section 6 of the CPIN deals with unemployment in Ghana. As stated at [6.1.1] of the CPIN, the statistics there given are also sourced from the Ghana 2023 Annual Household Income and Expenditure Survey. That paragraph refers to the “labour force participation rate” being 72.9%. The CPIN goes on to say that the unemployment rate for the fourth quarter of 2023 was 14.9% but notably that male unemployment was lower at 10.9%.

53. Whilst we accept that the CPIN does go on to say that unemployment of those aged 15-24 years is higher (at 29.7%), that does not impact on the Appellant who is now aged 30 years. Although we were not taken to it by either party, the 2023 survey itself (accessible from the CPIN) shows at Figure 8 that the unemployment rate for those aged 24 years and over falls sharply from 36.6% for those aged 20 to 24 years, to 22.0% for those aged 25 to 29 years and 12.1% for those aged 30 to 34 years. For that reason, we can place little weight on Professor Hodzic’s evidence that the Appellant would be at any significant disadvantage on the labour market based on his age.

54. Returning to the way in which jobs are found, Mr Wain also drew our attention to [§6.5.1] of the CPIN which cites from a document produced by the International Organization for Migration in Germany as follows:

‘The Public Employment Centres (PEC) under the Ministry of Employment and Labour Relations are mandated to provide job seeking assistance. Since 2019, the Government launched the Youth Employment Agency (YEA) with the intent to … complement the PEAs [Private Employment Agencies] efforts in providing job matching services. ‘For general unemployment assistance any person (migrant or not) can visit the PECs under the Labour Department or the YEA to register. They both provide CV enhancement and job matching services for the public. There are also Private Employment Agencies (PEAs) that provide job matching services at a fee… ’ “

55. That casts some doubt on Professor Hodzic’s evidence that the Appellant would find it very difficult to source employment without family and friends in Ghana. That in turn impacts on Professor Hodzic’s evidence about the difficulties the Appellant would face in finding accommodation. Again, Mr Wain drew our attention to the CPIN at [§9.3.3] onwards which sets out information on privately rented accommodation. Whilst we accept that this does not paint a picture of accommodation being very readily available or affordable, it does refer to schemes put in place to assist those finding it difficult to afford to pay private rents.

56. In any event, we also have some concerns about the Appellant’s evidence that he has no family members in Ghana, even if those would be extended ones.

57. The Appellant says in his statement at [B/122] that before coming to the UK, he and his brother lived with their grandmother. His father had come to the UK in 1994 and his mother in 1997. He says in that statement ([B/125]) that his grandmother died in 2014. We have no reason to doubt that evidence. However, in oral evidence he was asked how he knew about this. He said that this was from his mother and brother. Again, we have no reason to doubt that evidence. However, the Appellant was unable to tell us how his mother and brother would have discovered his grandmother’s death if, as is his case, there are no family members or friends with whom the family retains contact in Ghana.

58. The Appellant also admitted in his oral evidence that his mother and brother had been to Ghana. We can conceive of no reason why they would travel to Ghana if they did not have any family or friends remaining there.

59. The Appellant’s mother was not called to give evidence before us. We have a witness statement from her dated 25 January 2024 ([B/53-56]) but although that confirms the Appellant’s case that he has not been back to Ghana since he left, it makes no mention of the death of the Appellant’s grandmother or how the Appellant’s mother learnt of this, nor does it mention the visits to Ghana made by the Appellant’s mother and brother or the reasons for those visits.

60. We do not accept the Appellant’s evidence that he has nobody in Ghana who could assist him. Even if that were the position, since his mother and brother have been prepared to travel to Ghana in the past, there is no reason they could not do so in the future, for a short period to assist the Appellant’s integration and for visits thereafter.

61. As Mr Wain also pointed out, the Appellant would be eligible for a sum of money if he were to voluntarily depart the UK. That would assist with his integration in the short term in relation to finding accommodation whilst looking for work.

62. We of course take into account that the Appellant was a child when he left Ghana and will have had no experience of living there as an adult, trying to find work and accommodation on his own. However, given his resourcefulness in finding work in the UK, his educational qualifications gained in the UK and his work experience here, and that he is at least familiar with the culture of Ghana from his early childhood and his upbringing with a Ghanaian mother (and to a lesser extent father), we are unable to accept that there would be very significant obstacles to his integration there. We understand the Appellant’s case that he considers himself to be British and to be integrated here rather than in Ghana. That does not however mean that there would be very significant obstacles to his re-integration there.

63. For the foregoing reasons, we do not accept that there would be very significant obstacles to the Appellant’s integration in Ghana.

Would Removal Give Rise to Unjustifiably Harsh Consequences?

64. The Appellant has been in the UK since August 2002, a period of nearly twenty-three years. We have not felt it necessary to decide whether the Appellant could meet paragraph 276ADE(1)(v) in relation to his length of residence given our findings in relation to suitability.

65. However, we bear in mind that the Appellant’s length of residence amounts to well over half his life which is a factor for consideration even in a deportation case if that residence has been lawful. In this case, the Appellant came here lawfully as his mother’s dependent and was thereafter issued with an EEA residence card due to his father’s status. He appears to have had lawful residence until February 2008. Thereafter, in 2015, the Appellant was given leave to remain with his mother and sibling. Although he was refused further leave to remain, that decision was reversed following the previous appeal. He has therefore had leave to remain either expressly or based on statutory continuation from at the latest 2015 and for a period following his arrival until at least 2008.

66. We therefore give some weight to the Appellant’s private life notwithstanding Section 117B (5) which requires little weight to be given to a private life formed whilst an applicant has been in the UK on a precarious basis. We accept that “little weight” is a flexible concept (see Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58 – “Rhuppiah”). Much depends on the quality of the private life established rather than simply the length of residence.

67. For that reason, we also have regard to the evidence we have about that private life in the bundle, in particular about the Appellant’s educational achievements and work experience (see his statement at [B/44] and [B/48]). The Appellant has worked in the past as an estate agent and delivery driver. The Appellant told us that he is now known in the London area for his ability to entertain and host parties. He is a bar manager and a freelance entertainer. We have a letter in support of the Appellant from his current employer ([B/98]) which describes the Appellant as “an asset to the team”. We take that into account.

68. The Appellant says that he has made many friends in the UK, but we have no supporting evidence from any of those friends. We accept the Appellant’s evidence that he considers himself to be British rather than Ghanaian given the period of time he has been here and that he was a child when he arrived and has been educated and worked in the UK. That is a factor to which we have regard and give some weight.

69. There is much evidence in the bundle about the Appellant’s difficult upbringing in his own statement corroborated by that of his mother. However, as we have found above, that does not excuse his continuous offending as an adult. Nor does it strengthen the weight to be given to his private life.

70. We have carefully considered whether those difficulties can be said to lead to a finding of family life (in the technical sense based on the test in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31) between the Appellant and his mother and sibling given the difficulties they have faced as a family and notwithstanding that the Appellant is now an adult.

71. We have regard in this respect to the statement of the Appellant’s mother. Although that statement shows that the Appellant cared for his mother when she was suffering from cancer and she says that she would be devastated if he were removed to Ghana, we take into account that she has not provided a more recent statement and did not attend to give evidence for the Appellant at the hearing before us. We have no evidence from the Appellant’s brother. There is insufficient evidence to show that there is such a relationship of emotional and financial interdependency between adults as to amount to family life in that technical sense. Indeed, we did not understand Mr Papasotiriou to argue that family life does exist between the Appellant and his mother and sibling.

72. It is appropriate however for us to take into account the impact of removal of the Appellant on his family members in the UK. We accept that the Appellant’s mother does not wish the Appellant to leave the UK. It is probable that his brother would also prefer the Appellant to remain here. However, we have a lack of evidence that the Appellant’s removal would interfere in any significant way with their private lives in the UK. They could of course visit the Appellant in Ghana and retain contact by phone and other remote means.

73. We accept that the Appellant supports himself without recourse to public funds and speaks English. Those are however neutral factors (see Rhuppiah).

74. We have already dealt with the situation which will face the Appellant in Ghana. We accept that he will find it difficult to establish himself there. He left when only a child. He has no experience of finding work and accommodation there. However, his life in the UK shows considerable resourcefulness and resilience. He has managed to find work notwithstanding his lengthy criminal record. We have already found that there are no very significant obstacles to him integrating in Ghana. As already noted, the Appellant’s mother and/or brother could go with him for a short period to assist him and could visit him in Ghana. This is not a deportation case and so it would also be open to the Appellant to apply to visit his family here.

75. Against the interference with the Appellant’s private life and the rights of the Appellant’s mother and brother, we have to weigh the public interest. As Mr Papasotiriou accepted, in circumstances where we have found that the Appellant cannot meet the Rules, there is a public interest in favour of the Appellant’s removal. As he submitted and we accept, the Appellant does not have to show any exceptional case in order to outweigh the public interest as set out at Section 117B (1). However, the fact that the Appellant cannot meet the Rules is a relevant factor which weighs against him.

76. In this case, the reason the Appellant cannot meet the Rules is also a relevant factor. Even if Mr Papasotiriou is correct to say that, but for the finding on suitability, the Appellant would meet the residence requirements under paragraph 276ADE(1)(v), the fact is that he cannot meet those requirements precisely because he fails on suitability grounds. The reason he cannot do so is because he has been found to be a persistent offender and a person whose presence in the UK is not conducive to the public good. That is a weighty factor in the balance.

77. We take into account that the offences of which the Appellant has been convicted are at a relatively low level and that he has not faced custodial sentences. We also accept that the Appellant’s offending does not disclose an escalation in seriousness. Nevertheless, he has shown a complete inability and unwillingness to mend his ways and continued to offend even having been warned of the consequences of so doing.

78. For those reasons, balancing the interference with the Appellant’s private life against the public interest in the maintenance of effective immigration control, enhanced in this case by the Appellant’s offending, we have no hesitation in concluding that the public interest outweighs the interference. It follows that removal of the Appellant will not have unjustifiably harsh consequences.



CONCLUSION

79. For the foregoing reasons, the Appellant’s appeal fails. His removal to Ghana does not breach section 6 Human Rights Act 1998.


NOTICE OF DECISION
The Appellant’s appeal is dismissed.


L K Smith
Upper Tribunal Judge Smith
Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 March 2025

APPENDIX: ERROR OF LAW DECISION



IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004091


First-tier Tribunal No: HU/57191/2023


THE IMMIGRATION ACTS

Decision & Reasons Issued:

……17/12/2024………

Before

UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE CLARKE

Between

MYRON NARTEY
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Mackenzie, Counsel instructed by Legal Rights Partnership
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

Heard at Field House on Wednesday 27 November 2024


DECISION AND DIRECTIONS

BACKGROUND

1. The Appellant appeals against the decision of First-tier Tribunal Judge J M Dixon dated 9 July 2024 (“the Decision”) dismissing the Appellant’s appeal against the Respondent’s decision dated 31 May 2023 refusing his human rights claim made in the context of an application for further leave to remain in the UK.

2. The Appellant is a national of Ghana. He came to the UK in 2002 to join his parents. He was given an EEA residence card, due as we understand it to his father’s status. However, his father left the family in 2010. Thereafter, the Appellant and his mother and sibling were finally granted leave to remain on human rights grounds for a period of 30 months in 2015. The Appellant was at that time aged under 25 years and had spent more than half his life in the UK. The Appellant was educated at school and college in the UK. He embarked on a degree course in September 2017 which he was later forced to abandon due to lack of status.

3. The Appellant applied for further leave in August 2017. That was refused in August 2018 due to the Appellant’s persistent offending. However, his appeal against that decision was allowed on the basis that the Judge (First-tier Tribunal Judge S Aziz) concluded that the Appellant was not a persistent offender and that he was therefore entitled to further leave, again on the basis that he had spent more than half his life in the UK and was aged under 25 years as at date of application.

4. On 3 December 2021, the Appellant applied for further leave which was again refused on suitability grounds due to the Appellant’s offending. He had committed a further (drugs) offence between the previous allowed appeal and the refusal of his application by the decision now under appeal.

5. Judge Dixon recorded at [6] of the Decision that there were two issues which he had to determine: first, whether the Appellant was a persistent offender and second whether the Respondent’s decision refusing leave constituted a disproportionate interference with the Appellant’s Article 8 rights. The Judge expressly there recorded that “[t]he appellant does not argue that there would be very significant obstacles to integration on return to Ghana”.

6. The Judge went on to conclude that the Appellant was a persistent offender for reasons given at [8] to [12] of the Decision. The Judge dealt with the second issue at [13] of the Decision. In so doing, he again recorded what he viewed as “a sensible concession” that the Appellant did not argue that there would be very significant obstacles to integration in Ghana. The Judge concluded that removal to Ghana would not disproportionately interfere with the Appellant’s right to respect for his private life and therefore dismissed the appeal.

7. The Appellant appeals on three grounds as follows:

Ground 1: the Judge erred in law in his approach to the first issue whether the Appellant was a persistent offender. In particular, the Appellant argues that the Judge’s approach is inconsistent with the guidance given by this Tribunal in Chege (”is a persistent offender”) Kenya [2016] UKUT 00187 (IAC) (“Chege”).

Ground 2: the Judge erred in concluding that there would not be very significant obstacles to integration in Ghana. In particular, the Appellant says that the Judge misunderstood the Appellant’s case and that there was no concession in this regard.

Ground 3: the Judge erred in his approach to the proportionality assessment under Article 8 ECHR by requiring that there be some exceptional factor outweighing the public interest which is said to be contrary to the Supreme Court’s judgment in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 (“Hesham Ali”). It is also submitted that the Judge was wrong to give only little weight to the Appellant’s private life having regard to “the inherent flexibility in the little weight provisions of s.117 of the Nationality, Immigration and Asylum Act 2002” (per Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58 – “Rhuppiah”). This ground also encompasses a challenge based on a failure by the Judge to have regard to certain factors said to be relevant to the proportionality balance.

8. Permission was refused by First-tier Tribunal Judge Pickering on 22 August 2024 in the following terms so far as relevant:

“..2. The grounds do not disclose an arguable error of law for the following reasons.
3. In relation to ground one it was open to the Judge to find that the appellant’s previous conduct and more recent offending demonstrated that he was a persistent offender.
4. Ground two is not material in relation to the suitability findings.
5. Ground three in relation to the specific point taken the Judge weighed factors on both the respondent’s side and the appellant’s. Ground three is in effect an attempt to reargue the appellant’s case.
6. Permission is refused.”

9. On renewal of the application to this Tribunal, permission was granted by Upper Tribunal Judge Gill on 21 September 2024 for the following reasons:

“Ground 2 arguably contends that Judge of the First-tier Tribunal J M Dixon may have erred in law in taking the view that the appellant did not argue that there would be very significant obstacles to his reintegration in Ghana. If he did err in that regard, this may have affected his assessment of proportionality. In addition, in assessing proportionality, it is arguable, as contended in ground 3, that the judge may have erred in taking the view he took of Prof. Saida Hodzic’s evidence.
Grounds 2 and 3 are therefore arguable.
Ground 1 is less persuasive but I will not refuse permission on ground 1.”

10. The matter comes before us to determine whether there is an error of law in the Decision. If we conclude that there is, we have to consider whether to set aside the Decision in consequence. If we do so, we either have to remit the appeal to the First-tier Tribunal or re-make the decision in this Tribunal, if necessary, at an adjourned resumed hearing.

11. The Respondent filed a Rule 24 statement dated 24 October 2024 seeking to uphold the Decision. In that statement, the Respondent submitted that “[t]here was no argument in the pleadings below that the appellant would face very significant obstacles to his integration in Ghana” so that it could not have been a legal error for the Judge not to make a finding on this issue. That prompted a response from the Appellant by way of a letter dated 25 November 2024 annexing a witness statement from the barrister who represented the Appellant in the First-tier Tribunal dealing with what was said to be the concession by the Appellant in relation to whether there would be very significant obstacles to his integration in Ghana. The Appellant sought to introduce those documents by way of a Rule 15(2A) notice.

12. We had before us an amended composite hearing bundle running to 161 pages ([B/xx]). Having heard submissions from Mr Mackenzie and Ms Isherwood, we indicated that we would reserve our decision and provide that in writing with our reasons which we now turn to do.

DISCUSSION

13. We deal with the grounds in the order of Mr Mackenzie’s submissions. In light of the terms of the permission grant, he sensibly focussed first on grounds two and three which he took together.
14. The second and third grounds are directed at [13] of the Decision which reads as follows:
“I do not find that the refusal gives rise to a disproportionate interference with the parents [sic] Article 8 rights. I adopt a balance-sheet approach. On the one side there is significant weight to be attached to the maintenance of immigration controls. The appellant does not meet the requirements of any of the Immigration Rules (the respondent being justified in finding that he falls for refusal on the grounds of suitability). His propensity to offend criminally aggravates his position. On the other side of the equation I take into account that the appellant has been in the UK for a considerable period of time but limited weight attaches to that private life because he has only ever benefited from limited leave and his status has thus been precarious. In addition, no particularly compelling features attach to that private life. I have taken into account the expert report of Prof. Saida Hodzic which sets out a number of difficulties the appellant would face in Ghana, however the appellant himself does not argue that there would be very significant obstacles to his integration in Ghana. That is a sensible concession. No doubt he would face challenges. He does rely on his absence from that country and not having any ties there. However, I am not persuaded that he would be as estranged from that country as he claims and in particular in this respect I take into account that his evidence on when his mother and brother visited Ghana last was somewhat vague. It does appear that there is some connection with the country given that his mother and brother have visited. He has no significant health issues and I am satisfied that he would be able to use the employment experience which he has acquired in the UK in order to make his way in that country. The expert report (page 7) does indicate that people can get by in Ghana and there is no substantial reason why the appellant would not be able to get by and forge a private life there. He would be able to have visits from his family members.”
15. As indicated above, we had a witness statement from Mr Alex Papasotiriou dated 21 November 2024 in relation to the “concession” said to have been made on the Appellant’s behalf. We admit that statement although we did not actually understand the Respondent to dispute the position there put forward. In essence, as is there explained and was expanded upon by Mr Mackenzie, the Appellant did not argue that there would be very significant obstacles to integration within the test under the Immigration Rules (“the Rules”) (now paragraph PL.5.1(b) of Appendix Private Life to the Rules). However, he did continue to argue that there would be such obstacles which needed to be considered when conducting the balance sheet assessment outside the Rules.
16. Of course, if the Appellant failed on the first issue he could not succeed within the Rules in any event (as the Judge recognised at [13] of the Decision). Given that the Appellant was also arguing that the Respondent was not entitled to refuse on suitability grounds, we did question why he did not pursue an argument based on the test within the Rules. Mr Mackenzie explained that this was because, if the suitability requirements were met, the Appellant would succeed on the alternative basis under Appendix Private Life to the Rules that he has been in the UK for more than half his life and is aged under 25 years. Although this point was not discussed further at the hearing, we question whether that submission is correct as the Appellant was, by our calculation, 27 years at the time of the application which led to the decision now under appeal.
17. Whatever the position, however, we accept that the Judge wrongly identified the Appellant’s case in this regard. As we understood Mr Mackenzie to accept, this may have arisen due to the rather technical meaning which applies to the term “very significant obstacles to integration” within the Rules. We did not however understand Ms Isherwood to dispute that the Appellant’s case was that he would face what would be very significant obstacles to integration when assessing proportionality outside the Rules.
18. Indeed, there would have been very little point in the Appellant relying on the report of Professor Hodzic had the Appellant not been arguing that he would be unable to return to Ghana due to the challenges which would face him there. Although Ms Isherwood pointed out that the Appellant’s skeleton argument before the First-tier Tribunal ([B/32-39]) did not set out the Appellant’s case as now explained in Mr Papasotiriou’s witness statement, as Mr Mackenzie pointed out, the skeleton argument was dated prior to Professor Hodzic’s report (at [B/86-97]). Mr Mackenzie also made the point that there had been a direction given by the First-tier Tribunal for permission to file that report only days before the hearing and a previous hearing adjourned for the purpose of obtaining it. It was therefore clearly relevant to the Appellant’s case.
19. We accept therefore that the Judge erred when stating that the Appellant had conceded the issue of whether there were very significant obstacles to integration. He did so in relation to that test within the Rules and the Judge may have therefore been right to say what he did at [6] of the Decision. However, as Mr Mackenzie submitted and we accept, outside the Rules the Judge was bound to take into account the Appellant’s ties to Ghana and to the UK and the interference with his private life here based on the situation he would face there when looking at proportionality.
20. Had the Judge considered Professor Hodzic’s report in more detail and provided reasons why, notwithstanding the content of it, he found that the Appellant could reasonably be expected to return to Ghana despite the challenges he would face there, we might have been inclined to find the Judge’s error describing the Appellant’s position as a “concession” to be immaterial. That was in effect the conclusion urged on us by Ms Isherwood.
21. However, we do not accept that the Judge sufficiently took Professor Hodzic’s report into account. This is not an issue as to the weight given. The Judge largely discounted the report on the basis of the Appellant’s “concession”. Insofar as he dealt with the content of that report, he took from it only that “people can get by in Ghana” and that the Appellant could therefore be expected to adapt, notwithstanding the Appellant’s absence from the country and lack of ties (which the Judge does take into account).
22. Whilst page 7 of Professor Hodzic’s report might (with a fairly generous interpretation) support the Judge’s finding about how Ghanaians manage, his finding completely ignores that the Professor’s views refer to those who have grown up and always lived in Ghana. The final two sentences are crucial to the Professor’s views in relation to the Appellant:
“Mr. Nartey does not possess the knowledge of these recent Ghanaian cultural practices nor does he have the social networks that would help him navigate them. He is in no way equipped to navigate the precarious and unstable economy in Ghana.”
23. Mr Mackenzie took us through Professor Hodzic’s report in greater detail, focussing on what is said about problems in obtaining an ID card, delays in that regard and lack of access to services in its absence, problems with housing and employment, societal attitudes, stigmatisation and isolation. The Judge does not grapple with any of those issues.
24. We accept therefore that there is an error disclosed by the second ground.
25. The third ground has some overlap with the second ground. The Appellant relies on the challenges he would face in Ghana as being a relevant factor which was not considered.
26. Mr Mackenzie also submitted that the Judge had failed to take into account when giving the Appellant’s private life little weight that he had been in the UK since a child and for well over half his life. We accept of course that in Rhuppiah the Supreme Court, having considered judgments of the ECtHR, concluded that the test under the legislation imported a degree of flexibility depending on circumstances. Here, although the Appellant has been in the UK for a considerable period including for much of his childhood, it is also worthy of note that for much of that time, he was here without any right to remain at all and even now has leave which is limited in duration albeit potentially leading to settlement. As Ms Isherwood pointed out, the Judge did refer to the Appellant having been in the UK “for a considerable period of time”. We would not have found an error in and of itself on this point.
27. There is more merit to the Appellant’s challenge based on a failure to consider other relevant factors. As Mr Mackenzie pointed out, leaving aside whether the Judge was entitled to conclude that the Appellant was a persistent offender, the nature and extent of his offending was relevant to the weight to be given to the public interest. Whilst the Judge takes into account the Appellant’s “propensity to offend”, he makes no reference to the nature or extent of offending. Nor does he take into account that the Appellant’s criminal offending since the previous allowed appeal was confined to one offence of drug possession (although that point is more relevant to the Appellant’s first ground).
28. As Mr Mackenzie also submitted and we accept, the Judge does not take into account the Appellant’s ties to the UK in the form of his family here, his friends, education and employment. Whilst the latter factors might not carry much weight and, as an independent adult, even his ties with family members might not do so, we accept that those are relevant considerations which ought to have been weighed in the balance.
29. We add for completeness that we do not find made out the suggestion that the Judge adopted a test of exceptionality contrary to Hesham Ali. The Judge properly adopted a balance sheet approach. As above, however, in so doing, he ignored certain relevant factors which required to be placed in that balance. We accept therefore that ground three discloses an error of law.
30. Turning finally to the Appellant’s first ground, we understood Mr Mackenzie himself to accept that if the Appellant’s challenge were limited to this ground, he may struggle to establish an error of law. Judge Gill also found this ground to be of less merit albeit she did not limit the grant of leave.
31. The guidance given by this Tribunal in Chege reads as follows (so far as relevant):
“1. The question whether the appellant ‘is a persistent offender’ is a question of mixed fact and law and falls to be determined by the Tribunal as at the date of the hearing before it.
…
3.              A ‘persistent offender’ is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or that the continuity of the offending cannot be broken. A ‘persistent offender’ is not a permanent status that can never be lost once it is acquired, but an individual can be regarded as a ‘persistent offender’ for the purpose of the Rules and the 2002 Act even though he may not have offended for some time. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date. Each case will turn on its own facts.”

32. We do not discern any error of approach made by the Judge when assessing whether the Appellant “is a persistent offender”. At [9] of the Decision, he said this:
“I am satisfied that departure from the findings of Judge Aziz is warranted. Subsequent to that Judge’s decision the appellant has gone on to reoffend thereby seriously undermining the appellant’s assertion made to Judge Aziz to the effect that he had taken the seriousness of his position and his criminal offending to heart. I note as well that the offences are drugs offences and that, as Judge Aziz had identified, drugs offences had been a particular feature of the pattern of the appellant’s offending.”
On its face, that summary correctly sets out the approach of considering the totality of the offending and whether the Appellant is at risk of committing a further offence.
33. As the parties (and the Judge) also accepted, the starting point was the previous allowed appeal. However, as the Judge pointed out, at that time Judge Aziz found that the Appellant had, in effect, turned over a new leaf and learnt his lesson. Whilst the Judge was of course required to consider for himself whether, in light of the more recent offending, the Appellant could now be said to be a “persistent offender”, that is the exercise which he undertook in particular at [12] of the Decision. He there recognised that the Appellant had not offended since 2022. The hearing took place in 2024.
34. Mr Mackenzie submitted that the Judge had failed to take into account that, in the period between 2018 and 2022, there had only been that one further offence which was for possession of a low class of drug. As he pointed out, that was a de-escalation from previous offences for possession of Class A drugs. Mr Mackenzie therefore submitted that the Judge had failed to take into account relevant factors.
35. We accept that the Judge did not expressly refer to the extent of offending since the previous offence nor the nature of that one offence in his reasoning on the first issue. However, the Judge does take this into account when the Decision is read as a whole. The Judge records at [3] of the Decision the fact and nature of that offence. The Judge was entitled to take into account not only the fact of offending but the reason for the “relapse” when considering whether the Appellant was a “persistent offender” at the date of the hearing before him. That is what he did at [12] of the Decision.
36. We are not satisfied therefore that there is any error disclosed by the Appellant’s first ground.
37. Having found an error on the second and third grounds, [13] of the Decision falls to be set aside. We invited submissions as to whether any findings could be preserved were that to be our conclusion. Ms Isherwood naturally asked us to preserve the conclusion that the Appellant is a “persistent offender”. Mr Mackenzie submitted that we could not safely do so as this is an issue which has to be determined at date of relevant hearing and our conclusions on that issue may well be determinative of the appeal but would in any event be relevant to the Article 8 balancing assessment.
38. Having carefully considered the position of both parties, we have concluded that we should set aside the Decision in its entirety. We accept as Mr Mackenzie submitted that we need to consider the Appellant’s history of offending and propensity to reoffend based on the facts and evidence at a further hearing.
39. Both parties agreed that the re-hearing could take place in this Tribunal. There are limited issues to be determined (although in light of what we say above about the Appellant’s age and length of residence, consideration may need to be given to the issues being pursued within the Rules).
40. Mr Mackenzie indicated that the Appellant would wish to put forward updated evidence. We have given directions below to permit that to happen.
CONCLUSION

41. For the reasons set out above, the Appellant’s challenge to the Decision succeeds on grounds two and three. Although we do not find an error to be made out on the first ground, we accept that the Decision needs to be set aside in its entirety, and we do so. We have given directions below for a re-hearing of the appeal before this Tribunal.

NOTICE OF DECISION
The Decision of First-tier Tribunal Judge J M Dixon dated 9 July 2024 involves the making of an error of law. We set aside the Decision. We make the following directions for the rehearing of this appeal:

DIRECTIONS

1. Within 28 days from the date when this decision is sent, the Appellant shall file with the Tribunal and serve on the Respondent any further evidence on which he wishes to rely.

2. Also within 28 days from the date when this decision is sent, the Appellant shall file with the Tribunal and serve on the Respondent a skeleton argument setting out the Appellant’s case as to the issues to be determined by the Tribunal at the re-hearing.

3. The appeal will be relisted for a resumed hearing face to face before UTJ L Smith on the first available date after 35 days from the date when this decision is sent with a time estimate of ½ day. No interpreter is required.

L K Smith
Upper Tribunal Judge Smith
Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 December 2024