HU085232018 [2019] UKAITUR HU085232018 (5 September 2019)

BACKGROUND

1. By a decision promulgated on 3 July 2019, I, sitting with Mrs Justice Thornton (sitting as an Upper Tribunal Judge) found an error of law in the decision of First-tier Tribunal Judge Buckwell allowing the Appellant's appeal. We therefore set the First-tier Tribunal decision aside and gave directions for a resumed hearing to re-make the decision. Our error of law decision is appended to this decision for ease of reference.

2. The background history of the Appellant's case is set out in summary at [2] and [3] of the error of law decision. I do not need to repeat the facts there stated but it will be necessary for me to expand and update them when applying the law to the evidence.

3. I have before me a bundle of evidence on which the Appellant relies (referred to hereafter as [AB/xx]). The Appellant has also filed two supplementary bundles of evidence dated 22 February 2019 and 31 July 2019 (to which I refer hereafter as [SB1/xx] and [SB2/xx] respectively). He also adduced at the hearing a letter dated 14 November 2019 (which should read 14 August 2019) from his caseworker, Ms Zarina Vidale, who is employed by Croydon Pathways Team, which is part of Croydon Youth Offending Service. Mr Melvin did not object to the late filing of what is a short letter. I also have a copy of the Respondent's bundle filed with the Tribunal which I refer to as [RB/xx] adopting the internal numbering.

4. I heard oral evidence from the Appellant himself. Although we had indicated in our error of law decision that it would be helpful to hear from the Appellant's father, I was informed that he could not be present as he was on holiday in Portugal with his family. No application was made to adjourn due to his inability to attend and no further statement was produced from him.

5. I also had before me a skeleton argument produced on behalf of the Appellant for the First-tier Tribunal hearing, and a skeleton argument and authorities relied on by the Respondent at the error of law stage as well as a skeleton argument filed by Mr Melvin for this hearing on 16 August 2019.

6. I have had regard to all the evidence before me, but I refer only to that evidence which is relevant to the issues I have to decide.

THE ISSUES AND LEGAL FRAMEWORK

7. Due to his age at the date of his commission of the offences, the Appellant is not the subject of an automatic deportation order. Section 32(5) UK Borders Act 2007 does not apply to him. The deportation order is under sections 5(1) and 3(5) Immigration Act 1971. However, as we indicated at [4] of the error of law decision, Section 117C Nationality, Immigration and Asylum Act 2002 ("Section 117C") does apply. Equally, paragraphs A398 to 399A of the Immigration Rules ("the Rules") apply.

8. The relevant legal provisions are as follows (so far as potentially relevant):

" 117C Article 8: additional considerations in cases involving foreign criminals

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

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

(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where-”

(a) C has been lawfully resident in the United Kingdom for most of C's life,

(b) C is socially and culturally integrated in the United Kingdom, and

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

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

Immigration Rules

" Deportation and Article 8

A398. These rules apply where:

(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention;

...

398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 ... and

...

(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

...

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

399. This paragraph applies where paragraph 398 (b) or (c) applies if -

... or

(d) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.

399A. This paragraph applies where paragraph 398(b) or (c) applies if -

(a) the person has been lawfully resident in the UK for most of his life; and

(b) he is socially and culturally integrated in the UK; and

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported."

9. Although, the drafting of Section 117C suggests that Section 117C (6) applies only to cases where a person is sentenced to more than four years in prison, the Court of Appeal in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662 concluded at [25] to [27] that this was a drafting error and that provision is intended to apply to all cases to which Section 117C applies. That is consistent with the Rules.

10. The issues for me to determine, therefore, are as follows:

(a) Whether the Appellant is in a genuine and subsisting relationship with a British citizen partner, formed whilst he was here lawfully and, if so, whether it would be unduly harsh for her to remain in the UK or return to Angola with him, applying the relevant threshold.

(b) Whether the Appellant can meet the private life exception contained in Section 117C (4) and paragraph 399A of the Rules.

(c) If neither exception is met whether there are very compelling circumstances over and above the exceptions which render the decision to deport disproportionate. In that context, it is appropriate to adopt the "balance sheet" approach advocated by the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, balancing the interference with his family and private life made out by the Appellant on the evidence against the public interest justification for deportation relied upon by the Respondent.

11. I refer to other relevant case-law as that arises when discussing the issues below.

FACTS AND EVIDENCE

12. The Appellant has been in the UK since April 2011 when he came to join his father. He was then aged just under twelve years. He was here lawfully as his father's dependent until 23 June 2017. His leave was not extended further following his commission of criminal offences which led to the notice of liability to deport in the context of which the Respondent refused the Appellant's human rights claim on 29 March 2018 which decision is the subject of this appeal. The Appellant was born on 23 April 1999 and is therefore now aged twenty years.

The Appellant's Offences

13. The Appellant was convicted, on 30 March 2016, of an offence of robbery and for the possession in public of a sharp object (a knife). He was sentenced on 29 July 2016 to eighteen months' detention with a training order. He was released on 28 April 2017 subject to licence conditions (imposing a curfew and supervision). The Appellant was again convicted, on 3 August 2017, for the offence of having a blade in a public place (on 12 July 2017). He was sentenced to ten months' detention in a Young Offenders' Institution.

14. We referred at [3] of our error of law decision to an updated PNC record indicating that the Appellant was under investigation and was bailed to 4 July 2019 with a condition that he should not enter the London Borough of Lambeth and Southwark. I deal with the Appellant's evidence about that offence below. Mr Melvin also relied on further information received from the police on 9 August 2019 that they had arrested the Appellant on suspicion of possession of an offensive weapon. Again, I deal with the Appellant's evidence about that offence below. For completeness, having regard to the updated PNC report filed by the Appellant ([SB2/1-6]) I note that the Appellant has also been cautioned for possession of cannabis (on 9 November 2015) and for possessing an offensive weapon in a public place on 5 December 2014 (cautioned on 13 February 2015).

15. I begin with the information concerning the offences of which the Appellant has been convicted. In relation to the first conviction, the facts are set out in a pre-sentence report at [AB/14-24] ("the Pre-Sentence Report"). On 21 February 2016, the Appellant was among a group of young people who threatened two victims in an attempt to obtain their mobile phones. One of the victims who refused to hand over his phone was punched and stabbed. The Appellant was not accused of having been involved in that aspect of the offence. He was present and had a knife hidden in his shoe. He did not dispute that he possessed a knife and pleaded guilty. He denied being involved in the robbery and said that he was just part of the crowd. He therefore pleaded not guilty but was found guilty.

16. The Pre-Sentence Report notes that the Appellant had completed a weapons awareness programme as part of an earlier caution, but it was said that the Appellant's "understanding of the problematic nature of carrying knives is limited and it also appears he is easily led by his peers to do things he wouldn't normally think of himself". Aside the fear of return to prison (he had been held on remand) his "motivation to not carry a knife is low". The Appellant was also said to have found the fight "amusing" which showed "a distinct lack of insight into the long-term consequences of how the offence may impact on the victim". He is said to have been concerned not to "lose face" with his friends.

17. The Pre-Sentence Report also records that, whilst on remand, the Appellant was involved in twenty-six incidents of which he had instigated seventeen. His behaviour in custody is recorded as of concern and said to be a "marked deterioration from his previous behaviour in the community". It is no doubt for that reason that the author of the report advocated that he not be given a custodial sentence. That is however what occurred.

18. The Pre-Sentence Report also records evidence about the Appellant's background which is largely consistent with the Appellant's own statements and I therefore consider below. The report notes the potential impact of the Appellant's (evident) stammer on his self-esteem and advocates speech and language assessment. The officer also recommends one-to-one supervision. It is said that the potential influences on his offending are his cannabis use (which he had a low motivation to address) and, most importantly, his peer group, some of whom were gang affiliated. The Appellant's family were said to struggle to control the Appellant.

19. As to risk of re-offending and risk of harm, the Pre-Sentence Report says this:

"[5.2] I would assess Edmar as a high risk of reoffending. While Edmar is capable of assessing the influences around him, he has a lot of trouble saying no to the anti-social peers and he is very easily led into offending behaviour in order to gain status and acceptance amongst his friends. At this stage, Edmar has very little motivation to stop carrying a knife with him other than a wish not to return to the YOI.

[5.3] Edmar is considered a medium to high risk of serious harm to the public. While Edmar has been cautioned and convicted for possession of a knife, he has yet to use it in any altercations. Until his remand in custody, Edmar was a spectator to violence rather than an instigator of it. Within custody, however, Edmar's level of violence has increased. It is my assessment that in a less artificial situation, Edmar would be far less likely to instigate violence. This assessment is taking into consideration the fact that through a group attack, serious harm was caused in the committal of the offence, albeit, not directly by Edmar.

[5.4] Edmar is assessed at a Medium Risk of harm towards himself. Edmar has never disclosed any desire for self-harm and has not experienced suicidal ideation. Professionals have not noted any concerning self-harming behaviour. Edmar has shown a pattern of being impulsive due to his anger and will likely place himself in danger when it comes to supporting his peers in a fight. It should be noted that Edmar is considered vulnerable in the [sic] due to his separation from his Mother at such a young age, his ongoing speech and language problems and his anti-social peer group."

20. Turning then to the second conviction, the sentencing remarks appear at [RB/K1-3] as follows:

"You are 18 years of age and you are here to be sentenced now for possession of two knives on 12 July of this year. Police searched you as part of a routine operation at Brixton tube station in the afternoon. You were wearing a rucksack inside which you had two large knives concealed in two socks. One was a completely metal kitchen knife, the other a kitchen knife with a black handle. They were large knives. You told police immediately about them when they began to search you and you said that you were carrying them because you feared for your safety, because you had recently been shot. You had indeed been shot in June and been in hospital for some time.

You claim in mitigation that you have no idea why you were shot. I find that difficult to believe but it seems to me I do not need to make a factual finding about that this morning. Your history is an unhappy one. You were cautioned for possessing a bladed article when you were 15 years of age, cautioned for cannabis when you were 16 and then just before your 17 ^th birthday you committed a robbery with others in which you also possessed a knife which I am told was used to stab the victim. You received an 18-month detention and training order for that. You were released from that in only about April of this year and so you were on licence for the equivalent period from that sentence when you were caught with these knives. Those are all in my judgement serious aggravating features.

Your explanation for why you were carrying these knives may well be one which can be understood and you may well have feared further attack and you may well also have intended to use knives to get revenge. Either way I do not regard that as mitigation. You know that carrying knives means that if you were caught up in a further incident you may well use them and someone else would get seriously hurt or even killed. That is why these offences are so serious.

They are so serious that only a custodial sentence can be justified and indeed the statutory provisions mean that I must pass an appropriate sentence of at least six months subject to credit for plea. In my judgement, given your record and the fact of two knives in this case, the appropriate starting point for these offences would be 15 months in a Young Offender Institution. I will give you full credit for your guilty pleas and reduce that therefore to 10 months..."

As the Judge there observed, the second conviction arose from an offence committed very shortly after his release from detention for his first offence, at a time when he was on licence and under supervision and, moreover, at a time when he had already been warned by the Respondent, by letter dated 5 September 2016, that he would be re-considered for deportation in the event that he reoffended. Neither that warning nor the detention for his first conviction had any deterrent effect on the Appellant.

21. The two more recent incidents in which the Appellant has apparently been suspected of involvement have not thus far led to any arrest or conviction. To that extent, I obviously do not place weight on them as offences which are proven against the Appellant. Nonetheless, I record the Appellant's evidence about them because, as Mr Melvin submitted, they do indicate that the police continue to have some concerns about the Appellant's conduct to the extent of preventing the Appellant from entering an entire London borough whilst their investigation takes place. It is therefore necessary to have some regard to the circumstances of those incidents.

22. The Appellant deals with the first incident which occurred on 8 June 2019 in his statement dated 31 July 2019 ([SB2/7-8]). He explains that he was playing football with friends in a park, then went back to a friend's house and they decided to go to the shops for food. The Appellant and his friend were stopped by police and questioned about a robbery earlier in the day. They said that they had not been in the area and were not involved. A search revealed a small amount of cannabis in the possession of the Appellant and his friend. He and his friend were taken to the police station for questioning. They continued to deny their involvement. They were released on bail on the following day on condition that they did not enter Lambeth and Southwark (where the robbery took place). The Appellant was released without bail and was given a "released under investigation form".

23. In relation to the second incident, the Appellant told me that he had been in a car driven by a next-door neighbour who he had asked for a lift. The police had followed and stopped the car and found a knife inside. When questioned, he explained that it was not his knife; it belonged to the driver of the car. He has not been charged and he understands that the driver has been re-arrested. He understood that the driver was carrying a knife because he has some problems in the local area. I note that this is apparently the area to which the Appellant was recently moved by Social Services.

24. As to the reasons behind his offences, the Appellant says this in his statement dated 15 February 2019 ([AB/3-5]):

"[7] At the time of my GCSE's I started mixing with the wrong crowd. I got caught up with a group who were involved in criminal activities. In 2015 I was attacked with a knife on my left arm by an opposition gang. This was the first time I became scared for my life and I realised I should be protecting myself more.

[8] On 30 ^th March 2016, I was convicted at Southwark Crown Court for robbery and being in possession of a knife. Due to this incident I was sentenced to 18 months detention. I did not intend to harm anyone by carrying a knife, it was simply a way for me to mentally feel safer. I never used the knife on anyone and deeply regret carrying one in the first place.

[9] On 3 ^rd August 2017 I was convicted for having a knife in a public place and sentenced to 10 months detention in a young offender's institution. This incident I was randomly searched by police officers and they found a knife in my bag. Again, I had no intention to use it, but I thought I needed it for safety.

[10] The area I was living in, it was common for boys my age and older to carry knifes and I regrettably joined that, and I know that was a mistake and do not have any intention to do that again. I understand now that carrying a knife was the wrong decision to feel safe and instead, I needed to withdraw myself from the crowd I was associated with. Which I have done since leaving prison.

[11] I am truly sorry for my criminal activities. I have had so much time to think about the impact of my crime, on myself, my family and on society at large. I have two young siblings in the UK as well from my Father's current relationship and I want to be a role model to them. I know the UK is open to many opportunities for me to grow as an adult, more than I can expect in Angola."

25. In his second statement, he says the following:

"[9] I do not excuse my past crimes; I pleaded guilty to them, and continue to take full responsibility for my actions. I want to change and be better, more reliable and responsible. I was a young boy when I committed my crimes and made many mistakes but hope to be given the chance to change my outcome for the better. I want to set an example to my younger siblings and the young people in my community. I ask the honourable Judge to allow my appeal and allow me to remain with my family in the UK and make a substantial change in my life with all the positive opportunities available in the UK."

26. I have already referred to the evidence in the Pre-Sentence Report about the family's inability to control the Appellant's offending. His father has provided a written statement dated 8 February 2019 ([AB/6-9]). He refers to the Appellant getting in with older boys and "the wrong crowd" and to a change in his attitude. The Appellant's father says this about the circumstances which lay behind and impact of the Appellant's convictions:

"[5] In 2015 Edmar was attacked with a knife on his left arm by an opposing gang. I was contacted by the hospital about this incident. I became very concerned for my son's safety and I was unaware that my son was associating with the wrong people during this time. He was used by other people due to his vulnerability. On one occasion after school Edmar was arrested for possession of a knife. He told me that he carried the blade for his own security.

[6] On 28 ^th July 2016 my son was sentenced to 18 months imprisonment for robbery and possession of a blade/sharp pointed article in public place. This was a very distressing time for me. I knew that my son was a good boy but had fallen in with the wrong crowd. He carried a knife for his own safety as there were many attacks and killings happening in our area.

[7] I did not know everything about the situation as Edmar did not tell me everything. The police told me most of the things that he did. I was not called when he was at the police station being interviewed.

[8] I felt devastated that he was sentenced for 18 months. It began to affect my mental state. I am his only parent and should be protecting him and keeping him away from danger, I felt like I hadn't done that. I went to visit him on many occasions. I did not want him to feel more alone. I asked him why he did what he did and he told me that he had been forced and threatened. I told him that he should have come to me, he was very sorry for what he had done and that what he did was not expected from him as my son. He said he didn't want to endanger anyone. He told me that he felt trapped and could not come out of the situation. He told me that he regrets what he did.

[9] Edmar was released early and was supported by personal support workers and parole officers. In accordance with his early release conditions he resided elsewhere. However he came to see myself and his siblings often. I could see a small change in Edmar's attitude and he was building close relationships with his siblings again as they had missed him a lot. I also began to build my relationship with my son again.

[10] In the summer of 2017 my son was shot at in the back with pellets. He had to remain in hospital for over a week due to this incident. After this incident Edmar was sentenced in July 2017 for possession of a knife. He was very scared of going anywhere after being shot at. I feel that prison also made him very paranoid that he was in constant danger. He was released after 5 months although he was sentenced to 10 months.

[11] As a father I believe that my son has learnt from this mistake. Since he has been released from prison he is a different person. He is more caring and calm. He has many plans if he is allowed to remain in the UK. He is being supported by support workers and probation officers who are helping him to continue his studies and find gainful employment.

...

[15] I believe in my son and I have seen a big change in his outlook in life. I believe he has had a period to reflect and his imprisonment has been both embarrassing and painful to him. He is aware that he must start arranging work for himself so that he feels part of society and he has something to build upon."

I note that the Appellant's father fails to explain why he considers his son has changed his ways given that the second offence was committed so soon after the first or to deal with why the Appellant's motivation following release on this occasion is different from when he was released after his first period of detention.

27. For completeness, I note that the Appellant relies on letters of support from Fernando Paulo Pedro (dated 20 February 2019) and Evan Glove (dated 19 February 2019) ([SB1/1-2]). Both say that he is a changed character and should be given a second chance. Unfortunately, neither individual gives any indication of who they are, much detail about how they know the Appellant and the degree of their interaction nor explain why they consider that he has changed for the better after the 2017 conviction. The letters run to no more than ten lines each. More importantly, neither individual attended the hearing to have their evidence tested or to provide support to the Appellant.

28. It is appropriate at this point to record the evidence of the Appellant's support worker which deals with an incident on 1 August 2019 when the Appellant was apparently attacked. He suffered a stab wound to his arm, dislocated shoulder and slash wound to his head. The incident was reported to the police who continue to investigate and have made two arrests. As the Appellant confirmed in his oral evidence, he has produced no medical evidence or police report in support of this incident. However, I have no reason to doubt what the support worker says. She also says that "Mr [G] has since been relocated to a new address in order to reduce the possibility of ongoing conflict against him or vice versa". That is consistent with what the Appellant said in his oral evidence that he has just been moved to West Drayton (which is also according to his evidence where the latest incident on 9 August took place). The Appellant's support worker says that he will be re-engaged with the association for which she works as soon as they can find a training centre within reasonable distance of his new accommodation.

29. The Appellant remains supported by Social Services under the Children Leaving Care Act 2000. His personal adviser, Junior Shabazz has written a letter dated 13 February 2019 ([AB/13]) in which he says that "Edmar has stated that he is firmly committed to changing his life and leaving his criminal past behind". He says that the Appellant is polite and "a pleasure to work with". However, he does not indicate whether he believes that the Appellant is a reformed character nor provide any information in support of the Appellant's statement that he has committed to change.

30. The Appellant has convictions in the past for cannabis use. I have already noted that he had been cautioned for possession for one such offence. He admitted in his second statement that, when he was stopped for the suspected offence in June 2019, the police found a small amount of cannabis in his possession which he confirmed was for his own use. The Pre-Sentence Report at [3.6] indicates that, certainly at that time, the Appellant used cannabis daily and that his "motivation to address his cannabis use is low as he cannot see how it affects his life or those around him". It is said that he had spoken to the substance misuse workers whilst on remand but that he "finds it boring and cannot see any benefits to engaging". Although the extent of his current use of cannabis is not dealt with in evidence, it is clear that he has not stopped using it altogether. He told Judge Buckwell in March 2019 that he had not used it since his release from detention ([44]).

31. Finally, under this heading, I note that the Appellant has included in his bundle a document entitled "Contributing to the Community" ([AB/25-36]). The document is undated, but I infer is one which was completed by the Appellant during one or other of his two periods of detention as part of his education towards changing his behaviours. The Appellant indicates that he wants to change by getting a job and college education so that he can "start living a formal life". He says that he is ready to change. He looks to his family for support and recognises the negative influence of his old friends and area. He expresses his interest in football and says that involvement in this activity may help him, but he recognises that if he plays football with "the wrong people" he would follow them and that this option would not work because "[he is] in the gang".

The Appellant's Family and Private Life

32. The hearing before me was attended also by Olivia Bates who the Appellant informed me is his girlfriend of nine months. There is no mention of her in either of the two statements which the Appellant has signed within that period. There is no statement from her nor any letter in support. There was no request for her to give oral evidence but, in any event, I would not have permitted her to do so without having given some notice of the nature of her evidence. I accept that she attended the hearing in order to offer support to the Appellant and I am prepared to accept his indication that she is his girlfriend but, given the lack of evidence about the relationship, I am not persuaded that it is one of any permanence. Certainly, there is no suggestion that the Appellant lives with her or that they have any children. There is no evidence of any committed relationship.

33. There is reference in a covering letter to an earlier application dated 19 June 2017 to the Appellant having a wife and children ([AB/64]). Although that letter gives some detail about the wife and children, this information cannot relate to the Appellant as it states that the Appellant had been living with his wife and children since 2014. The Appellant was then aged fifteen years and for him to have married and fathered three children by that age would be surprising to say the least. There is no mention of any wife or children in any of the witness statements and I infer, therefore, that notwithstanding the detail there given, this is an error made by the solicitors. It may arise because the Appellant's father had made an earlier application on the Appellant's behalf. He was in a relationship with a partner and had three children for whom he was responsible.

34. Turning then to the family life on which the Appellant relies, that is his life with his father and his father's new family (stepmother and two half-siblings). The Appellant confirmed in oral evidence that he has not lived with that family since 2016/2017 due to his offending. His father says that, due to his early release conditions, the Appellant was not permitted to live with the family. However, the Appellant says in his statements that he still maintains a very close relationship with his father and wishes to be a role model for his siblings.

35. The Appellant's father says this about the Appellant's relationship with his family and his future here and in Angola:

"[12] He has a strong relationship with his younger siblings. He has been trying to change his life and I believe given another chance my son will be a great asset to the society. He has no one in Angola, all his family are here.

[13] My wife regards Edmar like her own child, we are a very close family unit and want to support my son in every way. If my son is forcibly removed from the UK he will have no one to rely on in Angola. I have to remain in the UK and look after the rest of my family and I want my son to be a part of that. I am very scared what will happen to him if he was deported to Angola. I do not have the finances to support him while he is there. If he is granted stay in the UK I know that he will get a job and become an upstanding member of the community.

[14] ... There are no assets or property for him in Angola. His life is here and I ask that he is allowed to remain in the UK with us, his family. He has been here since he was 12 years old and does not recall anything from Angola."

36. Notwithstanding the expression of support contained in his statement, as I have already noted, the Appellant's father did not attend the hearing to provide support to his son. That was in spite of our indication at the error of law stage that it would be helpful to hear from him. Nor did he provide any further statement to update the Tribunal as to changes made by the Appellant since his release from his second period of detention.

37. I am not willing to accept at face value the evidence given by the Appellant and his father about the closeness of the relationship between the Appellant and his family. The author of the Pre-Sentence Report in 2016, noted that he had tried to contact the Appellant's family but in spite of a number of phone calls, had been unable to do so. He also indicated that the family had struggled to "implement solid boundaries" and that the Appellant's stepmother admitted that she felt that she had no control over him. Tellingly, he says at [4.1] that "[a]ccording to Edmar, an agreement has been reached between himself and his family that should he return home, he will need to be attending education or have a job to occupy his time". That perhaps explains why the Appellant has not lived at home since and why he is so keen to get a job or education. The fact remains, however, that, in spite of the concerns which the Appellant's family may have for the Appellant's "safety and upbringing", he has not lived with the family since his first period of detention and has recently been moved out of the area where they live by Social Services to avoid involvement in further conflict.

38. However, also in the Pre-Sentence Report, the author refers to the Appellant living with his family prior to his first detention and that he was "very caring" towards his younger siblings and had a "good relationship" with his father and stepmother. There is very limited evidence about the Appellant's two half-siblings. The Pre-Sentence Report indicated that they were at that time aged two and six years. The eldest was about to turn seven as the Appellant expressed concern that he would miss his brother's seventh birthday if he were detained. The Pre-Sentence Report is dated 28 July 2016 and so the children are now aged about five and nine/ten years.

39. As to his own future, the Appellant has this to say:

"[13] I am pleading that the Honourable Immigration Judge allow me to remain in the UK to live an honest, reformed and peaceful life with my father and my siblings. Since being sent to prison, I realised just how much I must lose, and I am terrified of my past ruining my chances of a normal and happy life. I want to be able to further my education and obtain a job through that.

...

[16] On page 5 of the Home Office refusal it states that I have not shown any evidence that I a making positive contributions to society. I have been working closely with my Probation officers and social workers weekly to improve my life since being released. I am currently enrolled on a course which will help me learn about ways of getting a job, I started this a couple of weeks ago. I am interested in the mechanical field and wold like to pursue that. I have contact with my probation officers weekly and we talk about the dangers of carrying a knife and other criminal activities. This is helping me to realise my mistakes and how I can move forward and be a positive member of the society.

[17] I ask the Honourable Immigration Judge to take my length of UK residency into consideration. I arrived here when I was 11 years old. I do not remember Angola - it was a difficult time and I have all tried to forget it. I don't have any family or friends in Angola that I still hold a connection with. If I were to be deported to Angola, I would have no financial assets or a place to stay. I would have no prospects of finding a job. Currently I am financially supported by my social worker Junior and my dad, both of whom will not be able to support me if I left the UK.

[18] If I were to be deported, I have no idea where I would go or who I would meet. I would end up on the street and am scared that I would be vulnerable to abuse and violence. I don't know the customs or culture. I would stick out and become a target. I have no money and nowhere to stay. I fear for my life."

40. The Appellant says elsewhere in his statement that he does not know the whereabouts of his elder brother, Wilson. The Appellant's father says that "as far as [he is] aware" the Appellant's mother has passed away. Although this appears to be corroborated to some extent by the Appellant's account that she had passed away when he was very young, it is inconsistent to the extent that the Appellant says that his father told him that she was murdered by his stepfather which is not mentioned at all in his father's statement. Unfortunately, as I have already noted, the Appellant's father did not attend the hearing to enable questions to be asked of him. I also note that, at [3.2] of the Pre-Sentence Report, it is said that the Appellant was getting in trouble in his hometown and that his mother sent him to live with his father as a result. That would be inconsistent with the Appellant's statement that his mother died when he was very young and his evidence before Judge Buckwell that he was aged "three or four years old" at the time ([45]).

41. The Appellant's statement says that, after his mother's death and before he came to the UK, he was living with his paternal uncle in Angola. It is not said where he is now. There is a suggestion in the Pre-Sentence Report to which I have previously referred that the family remaining in Angola had moved to Portugal, but this is not mentioned in the statements of the Appellant or his father. When he was asked about this at the hearing before Judge Buckwell, he said that he did not know the details ([45]). He also there said that his uncle with whom he lived in Angola had died and that all his family are in the UK, most in Manchester, and that his father's relatives are in Manchester and London. There is no evidence from those persons.

42. The Pre-Sentence Report records that the Appellant had maintained good contact with his family in Angola until they had moved to Portugal. The Appellant's father was said to be on holiday in Portugal at the date of the hearing before me. It is not clear whether he has contact with family members who have moved there nor why he could not resume contact if he has not already done so. If he was able to do so, it may be that those family members would be able to provide the Appellant with contact details for persons to whom he could turn for support on return due to their more recent association with Angola.

43. The Appellant has had some education in the UK. The Pre-Sentence Report refers to him completing two GCSEs in Art and English. That is confirmed by the examination results at [AB/142]. According to those results, he also took examinations in Mathematics and Principles of Applied Science, as well as Drama. According to his CV at [AB/52], the Appellant has a GCSE in Physical Education and Sports as well as a Level 1 in Maths. It is also there noted that he has some limited work experience as a shop assistant and helping his father who is a DHL delivery driver.

44. Although the Appellant told the First-tier Tribunal Judge that he had no education in Angola, it is recorded in the Pre-Sentence Report that, when he arrived, he spoke fluent Portuguese. As is there recorded, his English skills in particular had "progressed exceptionally well" and he can read, write and speak English. According to his own CV ([AB/52]), the Appellant can speak three different languages.

45. The Appellant has expressed an interest in studying mechanical engineering at college. However, due to his immigration status, he confirmed that he has, as yet, been unable to enrol for the course.

46. One of the reasons why we found an error of law in Judge Buckwell's decision was the emphasis he placed on the Appellant's stammer. That he has a stammer was evident from the giving of his evidence. Whilst Mr Coleman did ask me to place some weight on his vulnerability arising from this speech impediment, as we indicated at [25] of our error of law decision, this is something of a double-edged sword for the Appellant because if that has been a contributory factor to his perceived need to protect himself by carrying knives and involving himself in gangs, whilst his stammer persists, that may indicate that he is unlikely to reform. The Pre-Sentence Report identified the Appellant as a candidate for speech and language assessment for treatment but stated that the Appellant would not admit that his stammer had an effect on his self-esteem. There is no indication that any treatment has been sought or indeed offered to assist him in this regard.

FINDINGS AND DISCUSSION

47. I can deal very briefly with any claim that the Appellant is in a genuine and subsisting relationship with a British citizen partner which would entitle him to remain in the UK. In fairness to Mr Coleman, he did not seek to suggest that this would enable the Appellant to succeed under the relevant exception. Given the lack of evidence about the relationship, including the impact on Ms Bates if the Appellant were deported, I am satisfied that it could not do so.

48. The second exception which might potentially apply is that relating to the Appellant's private life. Once again, though, it cannot apply in its entirety because the Appellant has not lived in the UK lawfully for half his life. He came here aged eleven, nearly twelve. He is now aged twenty years. He has not been here lawfully for half his life. His situation has always been precarious (he was being granted limited leave in line with his father). It is also appropriate to consider the extent to which he could otherwise meet that exception as that is relevant to whether there are very compelling reasons over and above the exceptions which would entitle the Appellant to succeed.

49. I begin with the degree of social and cultural integration. I accept that the Appellant has learnt English and can now speak, read and write in that language, having arrived with little if any command of the language. I also accept that he has been educated in this country. Whether or not he received any formal education in Angola, he has completed his secondary education in this country and has attained some, limited qualifications in a few subjects.

50. On the other hand, though, as Mr Melvin pointed out, the Appellant has been in trouble with the police since February 2015, under four years after he arrived. He has been in detention for two periods since then. Moreover, he accepts that he has been involved with gangs of youths who have been a bad influence on him. As a result, not only has he been convicted of two offences involving knives, but he has also on two occasions at least been the victim of knife crime and a shooting.

51. That involvement in gang culture is, as the Court of Appeal said in Binbuga v Secretary of State for the Home Department [2019] EWCA Civ 551 (citing from the Upper Tribunal decision), "the antithesis of being socially and culturally integrated in the UK". The Court of Appeal cited from Bossade [2015] UKUT 415 (IAC) concerning the qualitative nature of the test of integration as follows:

"[24] ... The term integration imports a qualitative test: in order to assess whether a person "is" socially and culturally integrated in the UK, one is not simply looking at how long a person has spent in the UK or even at whether that period comprises lawful residence: but the fact that an applicant has spent some or all of his time in the UK unlawfully may be of relevance in deciding whether he has integrated in these two ways."

The Court of Appeal went on to say the following:

"[55] Membership of a pro-criminal gang tells against rather than for social integration. In this context, social integration refers to the extent to which a foreign criminal has become incorporated within the lawful social structure of the UK. This includes various incidents of society such as clubs, societies, workplaces or places of study, but not association with pro-criminal peers.

[56] Similarly, cultural integration refers to the acceptance and assumption by the foreign criminal of the culture of the UK, its core values, ideas, customs and social behaviour. This includes acceptance of the principle of the rule of law. Membership of a pro-criminal gang shows a lack of such acceptance. It demonstrates disdain for the rule of law and indeed undermines it.

[57] Social and cultural integration in the UK connotes integration as a law-abiding citizen. That is why it is recognised that breaking the law may involve discontinuity in integration."

52. Although I accept therefore that the Appellant has integrated to some limited extent as shown by his educational achievements, adoption of the English language and some, very limited, work experience, I am unable to accept that he has become socially and culturally integrated here. That is not simply because of his convictions and detention but his involvement in gangs and his continued use of drugs. I appreciate that he is not using hard drugs nor dealing in drugs but his attitude towards the use of Class C drugs also indicates a disregard for the rule of law.

53. I turn then to what is probably the strongest factor in the Appellant's favour and that is what will become of him if he is deported to Angola. As I have already indicated, there are inconsistencies in the evidence as to what has happened to the Appellant's mother. On one version (of the Appellant's father), she may have died. On another, (the Appellant's) she was murdered when the Appellant was very young. On another, (the Pre-Sentence Report), she was still alive when the Appellant left Angola as she sent him here to live with his father because he was already in trouble in his hometown. Although there is no evidence that she is not alive, I am prepared to accept that she is now dead. Again, although there is no supporting evidence of this, I also accept that the Appellant's uncle with whom he is said to have lived before he came to the UK, is no longer living in Angola. Even if those family members are not dead, there is some evidence that such family as was living in Angola previously has now moved to Portugal. I of course accept that the Appellant's father and his partner and children live in the UK and, even though there is no evidence from other relatives, it may well be the case that there are other relatives living here although there is no evidence that the Appellant has any contact with them.

54. Much was made previously by the Respondent of the Appellant having an older brother, Wilson, who it was said may still be living in Angola. The Appellant said previously that he did not know where he was. Whilst I would have been assisted by hearing evidence from the Appellant's father about the other family members and their whereabouts, I recognise that I have no evidence that Wilson is still in Angola. He may be part of the family which has since relocated to Portugal. I am though prepared to accept that the Appellant does not have any family members in Angola.

55. As I have already noted, it may be that the Appellant's father is in contact with those family members now in Portugal or could resume such contact and that those family members could, at the very least, provide contact details of persons who might be able to assist the Appellant on his return. However, I accept that I have no evidence that this is the case (and it was not possible to explore this due to the Appellant's father's absence from the hearing). I therefore proceed on the basis that the Appellant would have no family or friends living in Angola who could support him on return.

56. However, the test is no longer whether there are any ties to country of origin but whether a person can relocate to his home country. That is a broader, evaluative test which was described by the Court of Appeal in Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 thus:

"[14] In my view, the concept of a foreign criminal's "integration" into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of "integration" calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life. "

57. The Appellant was born and lived in Angola until the age of eleven, nearly twelve years. Whilst he says that he was not educated in Angola, he is said to have spoken Portuguese fluently when he arrived in the UK. His father was also from that country and also still speaks that language (a Portuguese interpreter was requested for the hearing if the Appellant's father was to give evidence). According to the Appellant's CV he speaks three languages of which two are, I assume, English and Portuguese. Whilst he may not have been educated in Angola and may therefore not read or write in that language as well as he does in English, I do not accept that he will not still be able to communicate in Portuguese which is the official language of Angola. Moreover, he has shown by his speedy adoption of the English language that he is not unintelligent and will be able to pick up the language to the extent that he may have forgotten some of it. Portuguese was his mother tongue and I do not accept therefore that he will be unable to communicate using that language now.

58. The Appellant will also know something of life in Angola having lived there for over ten years of his life. Little is said about his circumstances there. As I have already indicated, there is some inconsistency in the evidence about this period. However, he will have grown up with an awareness of the country's customs and way of life. He has spent less than half his life in the UK. I do not accept that he will have forgotten all he has learnt of the Angolan way of life.

59. The Appellant says that he would have nothing in Angola by way of family, friends, financial assets, a place to stay or a job. I have been prepared to infer that he does not have family there as I have already explained. I also accept that, due to the age he was when he left, he may not have made friends with whom he could resume friendships. However, he has shown himself to be able to make friends when he arrived in the UK notwithstanding that he was coming to a country which was entirely strange to him. I accept that some of those associations were not a good influence on him but the fact of being able to make friendships in a strange country shows that he could do the same on return to his home country.

60. The Appellant is supported in the UK by Social Services. He has not lived with his family since before his first period of detention. Although he is supported by a social worker, that is not a person who is living with him. It is not clear whether and to what extent he is in supported accommodation but, from the evidence, he is living a life independently of his family and with little support.

61. I accept the Appellant's evidence that he is receiving some financial support from his father as well as from Social Services. Clearly, the Social Services support would cease if the Appellant were deported to Angola. As Mr Melvin pointed out, the Appellant would be entitled to up to £1500 if he opted to return to Angola voluntarily. I have no evidence about the cost of living in Angola nor therefore how far that money would go. I also accept based on the evidence that the Appellant's father is unlikely to be able to provide much by way of additional support to plug the gap between what the Appellant receives now from Social Services and what he would receive if returned to Angola. According to the evidence of his father's earnings, he does not have much spare income. However, I do not accept that the Appellant's father would not be able to provide some financial support as he is doing currently. It is likely that the cost of living in Angola is cheaper than in the UK, particularly in the areas around London. The Appellant is single and has no family commitments of his own.

62. I have been provided with no information about the employment situation in Angola. I accept that the Appellant has little by way of formal education and qualifications and I am prepared to accept that he was not educated in Angola and has no qualifications from that country. However, the Appellant is a young man who is healthy. I see no reason why he could not find unskilled work which would enable him to survive whilst he establishes himself. The Appellant speaks, reads and writes English which may even be a benefit to him in finding employment. I accept that his stammer may be a minor impediment to finding employment, but I do not accept that this would prevent him finding the sort of unskilled work to which he would currently be suited if he remained in the UK.

63. Although I accept that the Appellant may well find it difficult to integrate in Angola, particularly given the lack of family ties, and whilst there are some obstacles to integration as indicated, I am satisfied that those are not very significant to the high threshold which applies and as the test is explained in Kamara. The Appellant will be enough of an insider to be able to live in Angola and participate in the society there.

64. For those reasons, I am satisfied that neither of the exceptions in Section 117C is met. I therefore move on to consider whether there are very compelling reasons over and above those exceptions. In so doing, I adopt my findings about the Appellant's life in the UK and the situation he will face in Angola. I do not repeat what I have said already.

65. The one element of the Appellant's life in the UK which I have not yet considered is his relationship with his father and his father's family which includes his half-siblings. Although there is limited evidence about that relationship and although the Appellant does not now live with that family, I am prepared to accept that he is very fond of his father and his father's family, particularly his half-siblings, and that this fondness is reciprocated.

66. As I have already indicated, there is little evidence about the two children other than their ages. There is little evidence of the extent and nature of the contact which the Appellant has with his family. The Appellant told Judge Buckwell that he saw his father twice weekly but does not say where or for how long ([42]). He also says that he sees his two half-siblings "sometimes". He told the author of the Pre-Sentence Report that he was concerned that he would miss his younger brother's birthday. There is insufficient evidence to show that deportation of the Appellant would have any effect on the children's best interests. Due to the lack of evidence, the extent of disruption which would be caused to the relationship is unclear.

67. The Appellant is living independently of his family. That decision appears, at least in part, to have been as a result of his father and stepmother being unable to control the Appellant. There may also be some concerns about the children, particularly as the Appellant has himself been targeted by rival gangs. He has been moved away from the area where his family live to avoid his involvement in conflict. I accept that the Appellant remains dependent on his father in part, although mainly if not exclusively for money rather than other support. I say that because, if the relationship were as strong as suggested, I cannot accept that the Appellant's father would not have come to the hearing to support his son or at the very least have provided a further statement to explain his absence.

68. Whatever the reason why the Appellant is living apart from his family, I am unable to find that the evidence about the relationship between the Appellant and his family in the UK shows more than the usual emotional and other ties which form a normal part of the bond between blood relatives. For that reason, I am unable to conclude that family life exists between the Appellant and those family members.

69. I accept, however, that the relationship is still part of the Appellant's private life. I accept that deportation will disrupt the relationship so far as face to face contact is concerned. However, the Appellant could maintain some contact with his family in the UK via Skype and telephone. There is no evidence that the Appellant's father and his family could not visit the Appellant in Angola. Although Judge Buckwell was told that the Appellant's father had claimed and was granted asylum, that is inconsistent with documents in the Respondent's bundle which show that he claimed asylum on arrival in 2003 but was still subject to limited leave to remain in 2011 when the Appellant arrived (and indeed when the Appellant was granted his second period of leave in line with his father in 2014).

70. I have already dealt with the lack of evidence concerning the Appellant's relationship with Ms Bates. Even accepting that they may be in a relationship which has lasted for a number of months, there is, as I have observed, no evidence that it is one of any permanence. It is likely that deportation will bring that relationship to an end unless Ms Bates is willing to go with the Appellant which is unlikely but there is no evidence that this would cause anything other than minor upset to either partner.

71. As I have already indicated, there is no evidence that the Appellant could not find employment, albeit unskilled in Angola. I accept that deportation will disrupt his plans to enter into further education to pursue his ambition to obtain a qualification in mechanical engineering. I accept that although there is no evidence that the Appellant has done other than indicate this as an ambition, this is because he cannot enrol in college because he has no immigration status. However, the formal qualifications which the Appellant has obtained in the UK to date are limited and might circumscribe the level to which he could pursue that ambition in any event. I have no evidence about what further education might or might not be available in Angola.

72. Adopting the balance sheet approach advocated in Hesham Ali and having set out the interference which deportation will cause to the Appellant's private life, I turn to consider the public interest in favour of deportation.

73. The Appellant has been convicted now of two offences involving knives. I accept that he has not been convicted of using the knives. However, the offences remain serious and are exacerbated by his involvement in gangs. I have also already pointed to the fact that the Appellant continues to use drugs albeit only cannabis.

74. As Mr Melvin rightly accepted, I cannot place any weight on the incidents in June and August 2019 as the Appellant has not been convicted of and does not admit to any offence (other than possession of cannabis for his personal use). However, as Mr Melvin submitted, the fact of the Appellant being stopped and being prevented from entering the London Borough where the robbery of which he was suspected to be involved took place does indicate continuing concerns by the police. I also place weight on the letter from Ms Vidale who says that the Appellant has been moved out of the Croydon area "in order to reduce the possibility of ongoing conflict against him or vice versa". The Appellant cannot be blamed for becoming the victim of crime, but that statement does indicate a continuing concern by the relevant authorities that, however much he might wish to do so, the Appellant has not yet extricated himself from the gangs which have been a significant contributing factor to his convictions in the past.

75. I also cannot ignore that the Appellant committed the second offence of which he was convicted so soon after he was released from the first period of detention. He says that he had no intention of using the knife he was carrying on either occasion, but the fact is that he was carrying a knife when he knew what trouble that might cause him and when he had already been warned that he might be deported if he committed further offences. The Judge sentencing the Appellant on that second occasion was not prepared to accept that the Appellant carrying a knife to defend himself amounted to mitigation and neither am I. The fact of that second offence so soon after his first release and whilst he was still on licence and indeed under supervision for the first as well as the continued concerns about his involvement in gangs leads me to conclude that, however genuine the Appellant might be in his stated intention to change, he has not done so. There is no updated risk assessment since the pre-sentence report in 2016 so I have no evidence about the level of his current risk, but I find that he does continue to pose a risk of further offending.

76. Risk is of course also not the only reason why the public interest favours the deportation of foreign criminals. Deterrence of others is an additional factor as is the public perception of the ability of the authorities to deal with crimes like gang and knife crime. The increased incidence of such crime in the UK is a matter of great public concern. As was said by Lord Wilson at [70] of the judgment in Hesham Ali, whilst it may be too emotive to refer to the public interest in terms of society's revulsion of certain crimes, public confidence in the authorities' response is still a matter of public interest.

77. In addition to the factors in Section 117C which apply because the Appellant is a foreign criminal, I am also bound to have regard to the factors in Section 117B which apply in all cases. I accept that the Appellant speaks English and is better able to integrate in the UK as a result. The Appellant has had recourse to public funds in the form of Social Services support due to his inability to live with his family. I accept that he is entitled to that support by statute and because of his age, but the fact remains that he is accommodated and supported by public funding which tells against him.

78. I am also only able to give the Appellant's private life little weight because he has only ever had a precarious form of leave. I have already explained that he does not meet the first of the exceptions to Section 117C based on his private life as he has not shown that he has socially and culturally integrated in the UK and he has not established that there would be very significant obstacles to his integration in Angola.

79. Whilst I accept that there will be some disruption to the Appellant's private life in the UK and in particular with his relationship with his father and his father's family here, and that he will face difficulties on return to Angola (which I have set out in some detail above), none of those factors are of a magnitude to amount to very compelling circumstances over and above the exceptions set out in Section 117C and the Rules which apply.

80. Weighing the interference with the Appellant's private life against the public interest which is significant due to his criminal offending and the continued risk that he will reoffend, I am satisfied that although deportation to Angola is likely to be harsh for the Appellant, the consequences are not unjustifiably harsh. Deportation is a proportionate response.

CONCLUSION

81. The Appellant has failed to show that he meets either of the two exceptions to deportation under Section 117C or the Rules which apply. He has not shown that very compelling circumstances exist over and above those exceptions to outweigh the public interest in deportation. The consequences of deportation are not unjustifiably harsh. The decision to deport is proportionate and does not therefore breach Section 6 Human Rights Act 1998. The appeal is dismissed.

DECISION

Deportation of the Appellant is not a breach of Section 6 Human Rights Act 1998. I dismiss the Appellant's appeal.

Signed Dated: 3 September 2019

Upper Tribunal Judge Smith

BACKGROUND

1. This is an appeal by the Secretary of State for the Home Department. For ease of reference, we refer below to the parties as they were in the First-tier Tribunal albeit that the Secretary of State for the Home Department is technically the Appellant in this particular appeal. The Respondent appeals against a decision of First-tier Tribunal Judge Buckwell promulgated on 12 April 2019 ("the Decision") allowing the Appellant's appeal against the Respondent's decision dated 29 March 2018 refusing the Appellant's human rights claim in the context of a decision to deport the Appellant to Angola.

2. The Appellant came to the UK during April 2011 to join his father, then aged approximately twelve years. He says that his mother was previously murdered in Angola. He was granted leave to remain as his father's dependent in November 2013 to 5 May 2014. That leave was extended to 23 June 2017. He made an application for further leave to remain on 19 June 2017. The Appellant is now aged twenty years.

3. In the meanwhile, the Appellant was convicted, on 30 March 2016, of an offence of robbery and for the possession in public of a sharp object (a knife). He was sentenced on 29 July 2016 to eighteen months' detention with a training order. Within months of his release, the Appellant was again convicted, on 3 August 2017, for the offence of having a blade in a public place. He was sentenced to ten months' detention in a Young Offenders' Institution. Mr Bramble drew our attention to an updated PNC record which shows that the Appellant is again under investigation and is currently bailed to 4 July 2019 with a condition that he should not enter the London Borough of Lambeth and Southwark. The nature of the investigation is not apparent, but we need say no more about that in any event as the hearing before us is to determine whether there is an error of law in the Decision. That may become relevant, though, in the event that we find an error of law and need to re-make the decision. For the sake of completeness, we note that the PNC record shows also that the Appellant was cautioned on 13 February 2015 for possessing a weapon in a public place and on 9 November 2015 for possession of cannabis.

4. Due to his age at the time of the index offences, the Appellant is not liable to automatic deportation. Section 32 UK Borders Act 2007 does not apply where the person to be deported is under eighteen at the date of conviction (section 33(3)). The deportation decision is therefore under sections 5(1) and 3(5) Immigration Act 1971 on the basis that the Appellant's presence in the UK is not conducive to the public good. Crucially for our purposes though, Section 117C Nationality, Immigration and Asylum Act 2002 ("Section 117C") does apply. Section 117D defines a "foreign criminal" as a person who has been sentenced to a term of imprisonment of twelve months or more (Section 117C (2)) and, as is made clear by Section 117C (4) that includes detention in an institution other than a prison including a young offenders' institution. Similarly, the Immigration Rules ("the Rules") relating to deportation of a foreign criminal (notably A398 to A399D). In brief summary, those paragraphs of the Rules and the statutory provisions create two exceptions to deportation based on Article 8 ECHR (in relation to family life and private life respectively) and provide that, where those exceptions are not met, a foreign criminal may still succeed where there are very compelling circumstances over and above the exceptions. In that regard, the statutory provisions are not clear in relation to the application of that subsection (Section 117C (6)) to a medium offender (that is to say one sentenced to a period of twelve months to under four years); the statute refers only to those sentenced to four years or more. However, as the Court of Appeal concluded in NA (Pakistan) and another v Secretary of State for the Home Department [2016] EWCA Civ 662 (" NA (Pakistan)"), the provision applies equally to medium offenders (see [24] to [27] of the judgment).

5. Judge Buckwell accepted that the Appellant could not meet either of the exceptions but for reasons we will come to below, concluded at [101] of the Decision that "there are sufficiently compelling reasons to outweigh here the public interest which otherwise would support his removal". He believed that "there would be unjustifiably harsh consequences for the Appellant and for his family members in this country if he were to be removed."

6. We will deal in greater detail below with the Respondent's grounds. For present purposes, we note that the grounds, in essence, are a challenge to what is said to be an inadequacy of reasoning coupled with the taking into account of irrelevant considerations and not taking into account matters which were relevant.

7. Permission to appeal was granted by First-tier Tribunal Judge ID Boyes on 7 May 2019 in the following terms so far as relevant:

"... 2. The grounds assert that the Judge erred in concluding that there were sufficiently compelling reasons such as to outweigh the public interest.

3. Having considered the grounds the permission request is arguable, the Judge seemingly accepts that having a stammer would impede the appellant's life to such a deleterious degree however it did not stop the appellant robbing a person at knife point.

4. It is arguable that the reasoning is weak, the basis upon which the appeal was allowed flawed and the outcome incorrect.

5. Permission to appeal is granted."

8. The matter comes before us to determine whether the Decision contains a material error of law and if we so find, to re-make the decision or remit the appeal to the First-tier Tribunal to do so.

THE DECISION

9. The Judge's findings and reasons are lengthy, and we do not consider it necessary to set those out in full. We have cited only those which require further analysis. However, in order to understand why we have reached the conclusion that we have below that there is indeed an error of law in the Decision, it is necessary to set out the structure of the Decision.

10. We begin with the section of the Decision dealing with the law. That appears at [74] to [77] of the Decision. At [74], the Judge records the Appellant's concession that he could not meet either of the two exceptions applying the Rules and statutory provisions which apply in deportation cases. That is obviously correct. The Appellant does not have a qualifying partner or child in the UK. He has some family members as we will come to, but those relationships do not bring him within the family life exception. He cannot meet the private life exception either as he has not been in the UK lawfully for most of his life. He has been here for about eight years and was aged twelve when he arrived. Although most of the period has been spent here lawfully, therefore, he cannot qualify for temporal reasons. He would also need to show that he had integrated into the UK socially and culturally and that there are "very significant obstacles" to his integration in Angola.

11. Although he cannot meet the exception, as we explain below, the failure of the Judge thereafter to take that exception into account at all may well have led him into the errors he has made. We note also at this juncture the Judge's reference to the need to establish "exceptional circumstances" with reference to the Rules in order to succeed. That is a misquotation of the relevant paragraphs of the Rules which continue to require, as we have already noted, that a person show that there are "very compelling circumstances over and above" the exceptions in order to succeed (paragraph 398). That too in our judgement is where the Judge has begun to fall into error. We accept nonetheless that the Judge is right to note that whether a decision to deport is proportionate depends on a balancing exercise between the public interest and the family and private life factors (applying the Supreme Court's judgment in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 (" Hesham Ali"). The Judge also records at [77] of the Decision that Section 117C (and Section 117B) apply. The Judge also correctly records the burden and standard of proof at [78] of the Decision (on the Appellant to the balance of probabilities).

12. Turning then to the findings, the Judge sets out the evidence beginning with a record of the statement from the Appellant's father. The Judge had by this stage already recorded the Appellant's own evidence. The Appellant's father had provided a statement but did not attend to give evidence. The Judge noted that failure but that there was no application to adjourn the hearing. He recorded that the failure of the father to attend to give evidence meant that this evidence could not be tested. Nonetheless, he summarised the witness statement at [80] to [84] of the Decision. That evidence included that the Appellant's offending was due to him falling in with "the wrong crowd", that he considered the Appellant to be reformed, that the Appellant had nobody in Angola to whom he could turn and who could support him and that he expected that his son would be able to find employment if allowed to remain in the UK.

13. At [86] to [88] of the Decision, the Judge deals with the public interest, accepting that this must be given "great weight". He refers to relevant case-law. Again, however, he refers to the need to show "exceptional circumstances" by reference to the Supreme Court's decision in Agyarko and Ikuga v Secretary of State for the Home Department [2017] UKSC 11 (" Agyarko"), a removal and not deportation case. We accept though that he does state that the issue is "whether the Appellant has established sufficiently compelling reasons to outweigh the public interest" which is a correct statement of the general principle.

14. At [89] to [97] of the Decision, the Judge deals with the Appellant's offences, the reasons behind them and the continuing risk based on that offending. The Judge refers to the fact that the second of the index offences was committed only a few months after the Appellant was released from detention for his first offence and whilst still on licence ([90] of the Decision). He accepts that the sentencing Judge considered that this was "an aggravating feature".

15. The Judge then goes on to consider the reasons the Appellant gave for his offences. He said that he feared for his personal safety. That was not accepted in mitigation when the Appellant was convicted ([91]). The Appellant said that he was "pressured within the gang which he had joined" ([92]). He had also been the victim of an attack and had been shot with pellets. As the Judge noted at [92] of the Decision, that led the sentencing Judge to note that the Appellant's reason for carrying knives "may well be one which can be understood" due to fears for his own safety.

16. The Judge then goes on to consider at [94] to [95] of the Decision whether the Appellant has rehabilitated. He accepts quite obviously that the Appellant was not rehabilitated after the first offence because he committed the second offence almost immediately thereafter. However, in relation to the position following the second offence, the Judge found as follows:

"[95] The circumstances as they now present do, I find, show a significant and meaningful change in the attitude of the Appellant. I find that he now has a genuine desire to reform. I believe that to be genuine. The Appellant now has the support of a particular person, Zarina, who is making arrangements for the Appellant to progress to training in the field of engineering at Greenwich College by way of a mechanics course. Hopefully thereafter the Appellant can progress to a form of employment and further training. I do find the Appellant to be genuine in his commitment to a positive series of life choices. I do not find that the Appellant was in equivalent circumstances upon his release from the period of youth custody in April 2017. I find on the evidence matters to be very significantly different now."

17. The Judge then goes on to take into account a further factor which, we note, did not form part of the Appellant's case (and on which Mr Plowright in the Appellant's Rule 24 response did not seek to place weight) - the Appellant's stammer. The Judge made the following observations in this regard:

"[96] Of course an appeal gives an opportunity for the Tribunal potentially to have evidence brought forward which was not before the Secretary of State. I find that to apply in one somewhat significant sense in terms of the evidence which was before me. In that regard, and expressing considerable surprise that the matter has not previously been raised or otherwise been obvious, the additional fact before me was the speech challenges from which the Appellant clearly has. He has a very serious stammer and in giving evidence before me found it difficult to be able to conclude a single sentence without a stammer occurring. This Tribunal has no particular or specialist knowledge of the condition and I appreciate that as this appeal does not concern a claim for protection, there is no evidence that the Appellant was subject to interview on by the Home Office. Had there been an interview then no doubt the issue of the Appellant's stammer would have most clearly have been noticed. I am also not aware of any medical evidence submitted in relation to the Appellant's condition.

[97] It was only myself who asked questions at the hearing with respect to the stammer. The Appellant indicated that he had been made fun of by his peers because of the stammer. I accept that evidence. It perhaps very well has relevance as to why the Appellant believed that he would benefit from some form of protection, albeit misguidedly, from membership of a gang. I do find that the Appellant's stammer goes towards some further explanation for his feeling of past insecurity. That evidence was seemingly not before the Respondent."

We will come back to those findings below when considering the Respondent's individual complaints about the Decision.

18. The Judge then turned at [98] to [99] to the factors in the Appellant's favour in the balance between the impact on his private life (and, so far as relevant, family life) and the public interest as follows:

"[98] In terms of his family unit, the Appellant clearly has the support of his father and I have referred to the witness statement from him, above. The Appellant also has a relationship with his step-siblings although great detail was not provided in that respect beyond what the Appellant and his father stated. It is also the reality that the Appellant is an adult although he clearly has financial dependence upon his father, particularly because of his current precarious immigration status.

[99] I accept the evidence of the Appellant that he would not have family members to assist him if he returned to Angola. Of course it is always possible for family members to make financial remittances but the Appellant would not have direct assistance from any family member who also resides in Angola."

19. Based on the above reasoning, the Judge then reached the following conclusion:

"[100] Taking into account all the evidence presented and all the matters to which I have referred, I must conclude whether the Appellant has established exceptional circumstances. I agree with Mr Plowright that my approach should be on a cumulative basis. My decision is made on that basis."

20. The Judge's conclusions are expanded upon at [101] to [102] as follows:

"[101] For the reasons to which I have referred above I find that in the particular circumstances the Appellant has just established that, considered in the round, there are sufficiently compelling reasons to outweigh here the public interest which otherwise would support his removal. I do believe that there would be unjustifiably harsh consequences for the Appellant and for his family members in this country if he were to be removed. However I have no doubt whatsoever that if the Appellant remains in the United Kingdom as a consequence of this decision and thereafter proceeds to commit a further offence of significance, it is highly unlikely that the Appellant would succeed in resisting any further decision that he should be removed to Angola. The Appellant therefore has every reason to ensure that he is appropriately motivated to show by his actions and deeds that he is reformed, that his rehabilitation can be meaningfully progressed in this country - in contrast to an unlikely opportunities for that in Angola - and that he can, as he professes his wish to be, contribute positively to society in the UK in the future.

[102] Accordingly the Respondent's decision is found not to accord with the requirements of section 6 of the Human Rights Act 1998. Exceptional circumstances with reference to the provisions of the Immigration Rules are found to subsist. Further, on a consideration otherwise of Article 8 ECHR private life rights outside the Immigration Rules, Article 8(1) ECHR is found to be engaged. The Appellant would face unjustifiable harsh consequences on return. It would be disproportionate in all the circumstances for the Appellant to be removed and therefore the Respondent may not rely upon Article 8(2) ECHR in response to the engagement of Article 8(1) ECHR."

DISCUSSION AND CONCLUSIONS

21. In addition to the Respondent's grounds, we received a skeleton argument from the Respondent on 22 May 2019. We received a rule 24 response/skeleton argument on behalf of the Appellant. We have had regard to those documents. We also received oral submissions from Mr Bramble and Mr Plowright which are reflected in the discussion which follows.

22. We begin with the individual complaints made about the Decision. First, it is suggested in the grounds that the Judge was not entitled to rely on the absence of financial support if the Appellant were deported given that his father's evidence was untested. Mr Bramble submitted that the Judge ought to have adjourned to take oral evidence from the father. We reject that submission. No adjournment was sought. The weight to be attached to the father's evidence was a matter for the Judge. He noted that the evidence was untested. We observe that there is no explanation why the Judge found as he did in this regard given the father's financial support for the Appellant whilst the Appellant has been in the UK. Nonetheless, we conclude that this ground is not made out.

23. Nor do we accept the submission that the Judge has quoted selectively from the sentencing Judge's remarks. We were taken to those. The Judge made reference to the comment that the reason for carrying a knife was said by the sentencing Judge to be understandable. However, the Judge also notes at [90] of the Decision that the sentencing Judge had found the commission of the second offence so shortly after the first offence to be an aggravating feature and thereafter the Judge takes that into account. When paragraphs [90] to [92] of the Decision are read together, we consider that the Judge has accurately recorded and had regard to the remarks of the sentencing Judge.

24. We accept however the complaint made about the Judge's reliance on the Appellant's stammer. As is evident from the passage cited at [17] above, the Judge took this point of his own volition. That the Appellant himself did not seek to rely on it is evident from its omission from his witness statement and that Mr Plowright did not seek to rely on it. His submission in that regard is that this was not the sole basis for the Judge finding as he did. We accept that, but it is difficult to downplay the reliance which the Judge placed on this factor given the Judge's own reference to it as giving rise to the "significant" need to have regard to it notwithstanding the failure by the parties to raise it.

25. The Judge also says that this factor may very well be relevant to the Appellant's membership of a gang. As we observed at the hearing, that is something of a double-edged sword for the Appellant because if that was part of his motivation and in circumstances where he continues to suffer this affliction, it potentially contradicts the Judge's view of the continuing risk which the Appellant poses.

26. For those reasons, whilst we accept that whether the Appellant has a stammer might be relevant to his ability to cope on his own both in this country and in Angola (although not a factor relied on in the latter regard), it is not a factor which the Judge was entitled to rely on as a point in his favour as mitigation of the Appellant's offending.

27. Furthermore, as Mr Bramble points out, even if the Judge was entitled to rely on it in that regard, the Judge has failed to refer to the pre-sentencing report when assessing risk. Admittedly that relates only to the first offence after which the Judge accepted that the Appellant was not rehabilitated but that report, somewhat presciently records that the Appellant is at a high risk of reoffending and a medium to high risk of serious harm to the public. As we say, that report only refers to the position at the time of sentencing for the first offence. However, it is relevant to the Appellant's motivation to rehabilitate. It also records relevant information such as the increase in the level of the Appellant's violence even during his custody. That was relevant to the question of rehabilitation.

28. In reply, as a factor in favour of the finding that the Appellant had rehabilitated, Mr Plowright was only able to point us to the additional support of a person who was assisting the Appellant to get onto a college course. As he accepted, the other support network of his family members cannot be relied upon in this regard as that network existed at the time of commission of the index offences. The support which that network can give is also somewhat limited by the fact that the Appellant is not allowed to live with his family household due to his past offences.

29. That then leads to the Respondent's complaint that the Judge has relied on rehabilitation as a factor at all or at least to the extent that the Judge does. Reference was made to the Tribunal's decision in RA (s.117C: "unduly harsh"; offence: seriousness) Iraq [2019] UKUT 123 (IAC) as follows:

"[33] As a more general point, the fact that an individual has not committed further offences, since release from prison, is highly unlikely to have a material bearing, given that everyone is expected not to commit crime. Rehabilitation will therefore normally do no more than show that the individual has returned to the place where society expects him (and everyone else) to be. There is, in other words, no material weight which ordinarily falls to be given to rehabilitation in the proportionality balance (see SE (Zimbabwe) v Secretary of State for the Home Department [2014] EWCA Civ 256, paragraphs 48 to 56). Nevertheless, as so often in the field of human rights, one cannot categorically say that rehabilitation will never be capable of playing a significant role (see LG (Colombia) v Secretary of State for the Home Department [2018] EWCA Civ 1225). Any judicial departure from the norm would, however, need to be fully reasoned."

30. In this case, the Judge has, we conclude, placed considerable weight on the Appellant's rehabilitation. He has done so, moreover, in circumstances where the Appellant had shown a propensity to reoffend by committing a second offence whilst on licence for the first index offence and when the pre-sentence report referred to the Appellant's violent behaviour even when in custody. The Appellant was released from custody for the second offence only just over a year before the hearing before Judge Buckwell.

31. It is impossible to read the Decision as not placing considerable reliance on the prospect of rehabilitation when, as we have set out at [14] to [18] above, the focus of ten of the twelve paragraphs which include the Judge's findings leading to the balancing exercise are concerned with that and mitigation of the Appellant's conduct which would in any event form part of the sentencing for the offences. We recognise that the Judge was entitled to take both aspects into account, but they should not have been given the weight that they were when leading to the Judge's conclusions on proportionality.

32. We also accept the Respondent's point that the public interest in deportation based on criminal offending includes more than simply the risk of reoffending. As is made clear by the Court of Appeal in OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694, that public interest includes also the need to deter foreign nationals from committing serious crimes and the building of public confidence in treatment of those foreign citizens who commit such crimes (see [15] of the judgment).

33. Although we accept that some of the individual challenges to the Decision are made out which is sufficient for us to find an error of law in the Decision, we consider it necessary to deal with the Respondent's more general complaint that the Judge has failed to give adequate reasons for his conclusion that the deportation is disproportionate and has minimised the public interest. As the Respondent says in his grounds, it appears from the Decision that the deciding factors are "the appellant's stammer, a desire to reform alongside changes, a lack of support if deported and that the appellant was pressurised into joining a gang and carrying a knife for protection". It is said that those factors cumulatively do not establish that the appropriate threshold is met in the balancing exercise.

34. In reaching the conclusion that this ground is made out, we do not set great store on what is said about the Appellant's support in Angola. It is said that he has a brother there, Wilson, who is ten years older than him, but the Appellant is recorded as saying that he had no contact with Wilson ([47] of the Decision). It may be that the Appellant's father's evidence about this would assist further but beyond that we can discern no error in the Judge's finding that the Appellant has no family support in Angola.

35. However, as we have already indicated, we have concluded that the Judge has not applied the right test when balancing the factors in the Appellant's favour against the public interest and for that reason has failed to give adequate reasons to explain how the very high threshold is met.

36. We accept that the Judge has said that he gives "great weight" to the public interest. However, the question whether he has reached a conclusion thereafter which is lawful depends on the application of that threshold with reasons why that level of public interest is met and not simply a bare assertion as to the weight which that should be given. In that regard, as we have already recorded, we are concerned that the Judge's continued reference to the need for "exceptional circumstances" discloses that the wrong threshold has been used. That is particularly so because the Judge says that this is the threshold which paragraph 398 says is to be applied. It is not (see [11] above). The Judge also refers, when dealing with Article 8 more generally, to the Supreme Court case of Agyarko which is a case dealing with removal, and not a criminal deportation case.

37. We accept that in Hesham Ali the Supreme Court also concluded that the test is whether, balancing the factors in an appellant's favour against the public interest, deportation would be "unjustifiably harsh" as the Judge concludes is the test met here ([101] of the Decision). However, the judgment in Hesham Ali pre-dates the coming into force of Section 117C and accordingly there is no consideration of the regard which the Tribunal is obliged to have to the public interest as there stated.

38. In short summary, reading the Decision as a whole, we are unable to conclude that the Judge was aware that the threshold to be met in this case is whether there are "very compelling circumstances" above the relevant exceptions. His conclusion that there are "sufficiently compelling reasons" at [101] of the Decision has to be read in that context. We are unable to conclude that the Judge recognised the level which would be sufficient.

39. That leads us on to the observation we made at [11] above that, although the exceptions are not and cannot be met in this case, they continue to be relevant to whether the Appellant has established that there are very compelling circumstances above those exceptions. We accept Mr Plowright's submission that not to set out and apply the exceptions which could be relevant even if not met is not an error of law in itself. However, as he accepted, it is a useful discipline when looking at the circumstances beyond those exceptions to start with consideration whether any part of the exceptions can be met.

40. The interrelationship of those exceptions with what amounts to very compelling circumstances above those exceptions is explained further by the Court of Appeal in NA (Pakistan) as follows:

"[29] ... The phrase used in section 117C (6), in para. 398 of the 2014 rules and which we have held is to be read into section 117C (3) does not mean that a foreign criminal facing deportation is altogether disentitled from seeking to rely on matters falling within the scope of the circumstances described in Exceptions 1 and 2 when seeking to contend that "there are very compelling circumstances, over and above those described in Exceptions 1 and 2". As we have indicated above, a foreign criminal is entitled to rely upon such matters, but he would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 (and in paras. 399 or 399A of the 2014 rules), or features falling outside the circumstances described in those Exceptions and those paragraphs, which made his claim based on Article 8 especially strong."

41. That point is reiterated in relation to a medium offender at [32] of the judgment where the Court of Appeal observed that "if all he could advance in support of his Article 8 claim was a "near miss" case in which he fell short of bringing himself within either Exception 1 or Exception 2, it would not be possible to say that he had shown that there were "very compelling circumstances, over and above those described in Exceptions 1 and 2". He would need to have a far stronger case than that by reference to the interests protected by Article 8 to bring himself within that fall back protection."

42. We refer also to [37] of the judgment which makes the point we do above that it is often sensible to consider the extent to which the exceptions are met even if they cannot be met before going on to consider circumstances outside those exceptions. If the Judge had carried out that exercise in this case, he would have recognised the need to consider whether the Appellant could be said to be integrated in the UK and, most importantly, whether the factors in this case such as the Appellant's age when he came to the UK and lack of support in Angola amounted to "very significant obstacles" to integration there.

43. We accept of course that, in general, what is under consideration in this case is whether the decision to deport is disproportionate. That is the crucial question. However, that has to be informed by a correct statement and application of the public interest and reasons given for the conclusion reached. Whilst it might appear at first blush that the Judge has given adequate reasons for reaching his conclusion in this case, when the surface of the passage setting out the findings and reasons is scratched, it is evident that the Judge has failed to apply the correct test or explain how the very high threshold which applies is met and outweighed.

44. For those reasons, we accept that the Respondent's grounds are made out. There is an error of law in the Decision which we therefore set aside.

45. Mr Plowright asked that, if we so concluded, there should be a further hearing before re-making the decision. He accepted that the resumed hearing could take place in this Tribunal and did not require a remittal. However, he said that it would be helpful for the Tribunal to hear evidence from the Appellant's father who is no longer unwell and could therefore attend as well as from the Appellant himself. We agree. Further, as we have recorded at [3] above, there is an updated PNC record which suggests that the Appellant is being investigated for a further offence and a re-making of the decision will require further information about that. We have therefore given directions below for further evidence and a resumed hearing.

DECISION

We are satisfied that the Decision contains a material error of law. We set aside the decision of First-tier Tribunal Judge Buckwell promulgated on 12 April 2019. We make the following directions for the re-making of the decision:

DIRECTIONS

1. Within 28 days from the date when this decision is promulgated, the parties shall file with the Tribunal and serve on the opposing party any further evidence on which he relies. The Tribunal would be assisted by evidence relating to the investigation referred to in the updated PNC record.

2. The appeal will be relisted for a hearing before Judge Smith to re-make the decision on the first available date after 28 days from when this decision is promulgated. Time estimate Â½ day.

Signed Dated: 1 July 2019

Upper Tribunal Judge Smith

Heard at Field House	Decision & Reasons Promulgated
On Monday 19 August 2019	On Thursday 5 September 2019l

Heard at Field House	Determination Promulgated
On Tuesday 25 June 2019
	... 3 July 2019........................

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	United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments
You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> HU085232018 [2019] UKAITUR HU085232018 (5 September 2019) URL: http://www.bailii.org/uk/cases/UKAITUR/2019/HU085232018.html Cite as: [2019] UKAITUR HU085232018, [2019] UKAITUR HU85232018

United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments