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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-003407 First-tier Tribunal No: HU/01701/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 20 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE LANE

 

Between

 

Secretary of State for the Home Department

Appellant

And

 

LUKMAN JAMA

(NO ANONYMITY ORDER MADE)

Respondent

Representation:

 

For the Appellant: Ms Nwacchuku, Senior Presenting Officer

For the Respondent: Mr Toal

 

Heard at Field House on 15 October 2024

 

 

DECISION AND REASONS

 

1.       I shall refer to the appellant as 'the respondent' and to the respondent as 'the appellant' as they respectively appeared before the First-tier Tribunal. The appellant is a citizen of Denmark who was born in 2000. The Secretary of State made a deportation order against him on 13 October 2022 directing his removal to Denmark by virtue of section 32 (5) of the United Kingdom Borders Act 2007 following his conviction on 27 August 2021 at Ipswich Crown Court for two offences of conspiracy to supply Class A drugs and robbery and theft. He was sentenced to a total of 6 years imprisonment. The appellant claims that deportation from the United Kingdom would breach our obligations under the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms ("the ECHR"). The respondent refused the appellant's claim on 13 October 2022. The appellant appealed to the First-tier Tribunal which, in a decision promulgated on 5 July 2024, allowed the appeal on human rights grounds. The Secretary of State now appeals to the Upper Tribunal.

The Secretary of State's appeal to the Upper Tribunal

 

2.       Permission to appeal was limited. The First-tier Tribunal gave permission only 'on the basis that the judge does not appear to have considered the "over and above" requirement for exception 1 (which includes very significant obstacles to integration) as required by S117C(6) of the 2002 Act for foreign criminals who have been sentenced to a period of imprisonment exceeding 4 years.' [4].

 

3.       The relevant parts of section 117C of the Immigration and Asylum Act 2002 (as amended) are as follows:

 

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

 

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

 

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

 

(4)     Exception 1 applies where-”

 

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

 

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

 

(c)     there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

 

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

 

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

 

The First-tier Tribunal's decision

 

4.       At [38], the parties agree that the First-tier Tribunal correctly stated the relevant test:

 

38. The Appellant needs to show that there are very compelling circumstances over and above those covered by paragraphs 399 and 399A of the rules (and Exceptions 1 and 2 in section117C) which represents a very high hurdle, given the great weight of the public interest in deporting foreign criminals who had committed offence attracting a sentence of over four years' imprisonment. Section 117 (5) and (6) are relevant to the consideration of the Appellant's appeal and Section 117 (5) states "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." Section 117 (6) states that "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 Exception 1."

 

5.       At [49], the judge concluded:

 

49. In considering all the evidence in the round, I do find that the Appellant has established that there are very compelling circumstances which would outweigh the public interest in deporting him. To rebalance the scales in favour of the Appellant against deportation there must be very compelling reasons which must be exceptional and I find that in weighing up all the relevant factors that the Appellant has established that very compelling reasons exist to outweigh the public interest notwithstanding the seriousness of the Appellant's crime; the need to protest society against crime and the need for a deterrent policy. I find that the decision is not proportionate.

 

Submissions

 

6.       Ms Nwacchuku, for the Secretary of State, submitted that the judge had failed fully to comprehend the weight of the 'over and above' test to be applied in the case of an individual who had been sentenced to more than 4 years imprisonment. The appellant had shown that, notwithstanding his mental health issues, he had been able to start a relationship with his girlfriend. It was not clear why the judge at [46] had considered 'over and above' in the context of her finding that there would be very significant obstacles to the appellant's integration into Danish society; English is widely spoken in the Denmark and the judge had given excessive weight to the difficulties which the appellant would find integrating into a Western democracy similar to the United Kingdom.

7.       Mr Toal, for the appellant, submitted that the judge had correctly stated the test (ie. very compelling circumstances 'over and above' the matters addressed in Exceptions 1 and 2 of section 117C of the 2002 Act (as amended)). There was no reason to consider that the judge had overlooked the test over the course of a few paragraphs of her decision nor was there any need to restate the test at the conclusion of her analysis [49]. By this appeal, the Secretary of State was simply attempting the reargue matters which had been fully ventilated before the First-tier Tribunal.

 

Discussion

 

8.       The Upper Tribunal should hesitate before interfering with the findings of the First-tier Tribunal which had the advantage of hearing all the evidence. Moreover, as the partiers accept, the Tribunal in this appeal has not misstated the correct legal test; the test at section 117 C is stated correctly at [38]. Having said that, following its findings of fact and when applying the relevant test to those facts at [49] the Tribunal finds that the appellant 'has established that there are very compelling circumstances which would outweigh the public interest in deporting him'; there is no reference to circumstances 'over and above' the provisions concerning very significant obstacles and 'unduly harsh' consequences contained in Exceptions 1 and 2. The questions before the Upper Tribunal, therefore, are: Has the Tribunal omitted to apply the correct test and, even assuming it has had that test in mind at [49], has it provided adequate reasons for finding on the evidence that there exist very compelling circumstances 'over and above' the matters set out in Exceptions 1 and 2?

 

9.       It is important, in my opinion, to have regard to the appellant's own circumstances and the country to which the Secretary of State intends to deport him. The judge found that, whilst the appellant has mental health problems, he is not at risk of suicide or intense suffering in Denmark [31] and dismissed the appeal on Article 3 ECHR grounds. From [39] et seq, the Tribunal considers whether there are very compelling circumstances 'individually and cumulatively which outweigh the public interest in his deportation.' Significantly, the words 'over and above' are not repeated at any point in this analysis. The Tribunal considers at length whether the appellant is culturally and socially integrated into the United Kingdom; however, it is not clear what role that particular factor should play in the 'over and above' test. Likewise, the fact that the appellant is 'actively involved in his family life and rehabilitation' [41] does not obviously have any significant bearing on the 'over and above' test. The judge found that the appellant would not have his family support network in Denmark but did not find that his mental health problems would be treated in Denmark. She placed weight on the fact that the appellant had not lived in Denmark since the age of two and cannot speak Danish but she does not (given the stringency of the 'over and above' test) adequately explain why those should be such significant problems for the appellant in an advanced Western democracy such as Denmark (which has a health and social security system as least as effective as that in the United Kingdom) where, as Ms Nwacchuku submitted, the majority of the adult population speak English (86%).

 

10.   I have hesitated before finding that the Tribunal's detailed findings of fact are inadequately reasoned. Indeed, such reasoning as the Tribunal has given may be adequate to satisfy the test of 'very compelling circumstances' which it applies at [49]. In my opinion, the reasons are, however, not sufficient to explain why the circumstances of the appellant has found by the Tribunal satisfy the 'over and above' test. The deportation destination (Denmark) is significant in my reaching that conclusion. I find that it remains unclear why the Tribunal considered that there existed very compelling circumstances over and above any very significant obstacles to the appellant's integration into Denmark, a country where his mental health needs would be met and where his language (English) is widely spoken and from where he would be able to maintain contact with his family in the United Kingdom. The fact that the appellant may be integrated in the United Kingdom and has not lived in Denmark since he was a child (both of which were emphasised by the Tribunal in its analysis) are not enough to meet the very high test of section 117C (6). I do not consider that the loser in the appeal before the First-tier Tribunal (the Secretary of State) can understand from the First-tier Tribunal's decision why she lost. I find that the decision is flawed by legal error such that it should be set aside.

 

11.   As I reserved my decision on error of law, the representatives did not make submissions regarding the remaking of the decision. I am also ware that the appellant seeks to adduce additional evidence. In the circumstances, and given that there will need to be fresh fact finding exercise, I return the appeal to the First-tier Tribunal for that Tribunal to remake the decision after a hearing de novo.

 

Notice of Decision

The Secretary of State's appeal is allowed. The decision of the First-tier Tribunal is set aside. None of the findings of fact shall stand. The appeal is returned to the First-tier Tribunal for that Tribunal to remake the decision following a hearing de novo.

 

C. N. Lane

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

Dated: 22 January 2025