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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004669
	First-tier Tribunal No: HU/02045/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

19 ^th February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE SAINI

 

Between

 

MM

(ANONYMITY ORDER MADE)

Appellant

and

 

The Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Mr Y Din, Counsel; R & A Solicitors

For the Respondent: Miss S Rushforth, Senior Home Office Presenting Officer

 

Heard at Field House on 7 February 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

 

DECISION AND REASONS

1.               For ease of comprehension, I shall refer to the parties as they were constituted before the First-tier Tribunal.

2.               The Secretary of State appeals against the decision of First-tier Tribunal Chowdhury allowing the Appellant's human rights appeal challenging the decision to deport him pursuant to Regulation 23(6)(b) in accordance with the EEA Regulations 2016, considered under the domestic provisions of Section 117C of the Nationality, Immigration and Asylum Act 2002. The decision of Judge Chowdhury was promulgated on 6 ^th September 2024. The Secretary of State applied for permission to appeal, which was granted by First-tier Tribunal Judge Boyes in the following terms:

"1. The application is in time.

2. The grounds of appeal assert that the Judge erred in numerous respects with regards to the deportation order.

3. The grounds are clearly arguable and permission is granted. The grounds speak for themselves and need no further elucidation or explanation from me.

4. Permission is granted on all matters raised."

3.               The Appellant did not provide a Rule 24 response but indicated that the Secretary of State's appeal was opposed.

Findings

4.               At the close of the hearing, I reserved my decision, which I shall now give. I do not find that there is an error of law in the decision, such that it should be set aside. My reasons for so finding are as follows.

5.               In relation to the Grounds of Appeal, Ms Rushforth accepted at the outset that she would need to establish that there was an error of law in respect of both Grounds of Appeal in order for the Secretary of State to succeed in her appeal in demonstrating materiality of error requiring the decision to be set aside in its entirety, given that Ground 1 sought to challenge the appeal being allowed on the first exception under Section 117C(5) of the 2002 Act; and given that Ground 2 sought to challenge the appeal being allowed in the alternative, under Section 117C(6) on the basis of very compelling circumstances outweighing the public interest in deportation.

6.               Turning to Ground 1 and the assertion that there are inadequate reasons for finding that Exception 1 has been met, the Secretary of State's appeal, in essence, argues that the First-tier Tribunal has failed to give adequate reasons for finding that the Appellant is socially and culturally integrated in the UK. The grounds note a number of pertinent factors that the judge considers at paragraph 47, including long residence, education and familiarity with the UK and accept that these may be relevant in the judge's assessment. However, the grounds go on to argue that the judge failed to give reasons why these demonstrate social and cultural integration in the Appellant's case and submit that long residence is not determinative of the first exception and neither is mandatory education and having spent time at university and that these factors fail to show the Appellant has made any positive contribution to the UK; and therefore the Appellant merely has a passive existence in the UK. In arguing in that fashion the Secretary of State pins her colours to the Court of Appeal's decision in Binbuga (Turkey) [2019] EWCA Civ 551, which states at [58] as follows: "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". In that regard, I note that the judge's decision correctly sets out the legal framework at paragraphs 34 to 36 before the judge goes on to make findings in respect of the first exception at paragraphs 37 to 50 of the decision.

7.               Having examined those paragraphs with great care, I do not find that there is any error of law in the judge's decision in allowing the appeal under Exception 1. I am particularly exercised by the judge's careful reference to, and application of, various binding authorities from the Court of Appeal including, in particular, the judgment of CI (Nigeria) [2019] EWCA Civ 2027 in relation to the Appellant's social and cultural integration into the UK. As the judge notes at paragraph 47 integration is a multifaceted concept and the Appellant's long-standing residence, family ties, education and familiarity with the UK strongly indicate his social and cultural integration, despite a criminal record. Whilst it is true that Binbuga points to criminal offending breaking integration, it is also correct that, as is shown at [60]-[62] and [74]-[77] of CI (Nigeria), that each case is fact-specific and must be considered subjectively in its own right.

8.               In particular, I note [61] of CI (Nigeria) establishes that criminal offending and time spent in prison are relevant insofar as they indicate the person concerned lacks legitimate social and cultural ties in the UK and that a person who leads a criminal lifestyle, has no lawful employment and consorts with criminals or pro-criminal groups can be expected, by reason of those circumstances to have fewer social relationships and areas of activity that are capable of attracting the protection of private life. In that regard, it is understandable why the Court of Appeal states that periods of imprisonment (i.e. separation from society in every way) represent time spent excluded from society during which the prisoner has little opportunity to develop social and cultural ties which may weaken or sever previously established ties and make it harder to re-establish them or develop new ties upon release and in these ways criminal offending and consequent imprisonment affect whether a person is socially and culturally integrated. However, I bear in mind [62] which also establishes that the impact of offending and imprisonment will depend not only on the nature and frequency of the offending, the length of time over which it takes place and the length of time spent in prison; but also upon whether, and how deeply, the individual was socially and culturally integrated in the UK to begin with.

9.               Having acknowledged that binding authority, I agree with the submissions made by Mr Din that the judge was at pains to note, and was aware of, the criminal offending and the conviction and sentencing history of the Appellant. Albeit the Secretary of State only relied upon the conviction on 10 ^th January 2022 as triggering her deeming deportation to be conducive to the public good. given that this was the Appellant's first custodial sentence and which amounted to three years and nine months' imprisonment, and notwithstanding that the Secretary of State indicated, as the judge recorded at paragraph 42, that she did not rely on the Appellant's prior convictions but pointed to a pattern of conduct that is serious; nonetheless the judge did consider the Appellant's offending history, for example, noting at paragraph 4 that the Appellant completed his primary and secondary education and went on to university and due to financial difficulties, left university and became embroiled with criminal activities, whilst also noting at paragraph 44 onwards that this is the first time the Appellant has served a custodial sentence at all, and that his previous convictions were for offences that he committed as a "young offender", and that the first conviction was for possession of a class B controlled drug when he was 19 years old and the convictions for travelling by rail without paying are fair was when he was 20 years old.

10.           Given that these convictions were comparatively minor and did not result in custodial sentences, which reflects their seriousness and the lack of any separation or break from integration, the judge was clearly aware of and duly considered, the offending history insofar as relevant and when noting the Appellant's social and cultural integration at paragraphs 45 onwards of the decision, including the age at which he came to the UK, the time spent in full-time education and that his formative and adult existence took place in the UK and that his entire family is in the UK, including his parents, two brothers and three sisters and that he had no immediate or extended family in the Netherlands. With that in mind, and given the judge's explicit reference to CI (Nigeria) at paragraph 47 which implicitly shows the judge's awareness of the importance and the proper manner in which social and cultural integration can be taken into account in the first exception under Section 117C(5) of the 2002 Act, and given that one would require custodial sentences to break the established social and cultural integration the judge had already noted, I find there is no merit in the first ground given that the judge had quite properly noted the lack of custodial sentence prior to 2022 and also legitimately noted the social and cultural integration since the age of 6 until the Appellant committed his first offence at the age of 27 which resulted in his first custodial sentence.

11.           Therefore, the crux of the Secretary of State's first ground challenging the assessment of social and cultural integration is without merit and it was open to the judge to find at paragraph 48 that the Appellant had no ties whatsoever to the Netherlands, having left the country at the age of 6 and having never returned, and given that he did not speak or read Dutch and had no knowledge of the society or culture and given that he could not integrate into society in a meaningful way without familial support and that he had no integration in the Netherlands and in particular that there was a real risk that he might fall into destitution. This was consistent with the Court of Appeal's decision in Kamara which the judge duly noted at paragraph 49, which allowed the judge to conclude that there would be very significant obstacles to his reintegration into the Netherlands and demonstrates how the judge was able to allow the appeal under the first exception at paragraph 50.

12.           For the sake of completeness, I also observe that the judge's reasons given for his findings are analogous to the guidance given by the Court of Appeal in assessing social and cultural integration and the first exception in CI (Nigeria) at [62] where, notwithstanding noting that the Tribunal should take into account the nature and frequency of offending and the length of time over which custodial imprisonment occurred and how deeply the individual was integrated in the UK; the Court of Appeal then went on to note that:

" a person who has lived all or almost all his life in the UK, has been educated here, speaks no language other than English and has no familiarity with any other society or culture will start with much deeper roots in this country than someone who has moved here at a later age. It is hard to see how criminal offending and imprisonment could ordinarily, by themselves and unless associated with the breakdown of relationships, destroy the social and cultural integration of someone whose entire social identity has been formed in the UK."

Thus, even by broad comparison, the Appellant's case appears to be stronger than the hypothetical example given by the Court of Appeal in CI (Nigeria) as there was no criminal offending which resulted in imprisonment before 2022 which could have resulted in the breakdown of relationships and which could have destroyed the social and cultural integration of the Appellant who had already formed the entirety of his social identity in the UK, having come at a very early age and who had been socially and culturally integrated from the age of 6 to the age of 27, when his first offence occurred which resulted in a custodial sentence at a much later stage in his life. Thus, I find there was no error of law established in terms of Ground 1.

13.           Turning to Ground 2, although Ms Rushforth accepted that both grounds needed to be established in order for there to be a material error, I go on to briefly consider Ground 2, de bene esse. I am mindful of the fact that the judge referred to the correct and most recent binding authority, that being HA (Iraq) at paragraph 52 before also going on to refer to Secretary of Sate for the Home Department v JZ (Zambia) [2016] EWCA Civ 116 at paragraph 53 of the judgment - which established that an Appellant could rely upon matters raised in relation to Exception 1 when also arguing their case under Section 117C(6) in respect of very compelling circumstances. I note the judge also referred to the Supreme Court authority in R, (Kiarie and Byndloss) v SSHD [2017] UKSC 42 which raised the factors that could be considered within the assessment of very compelling circumstances to outweigh the public interest, which include the depth of the Appellant's integration in the UK in terms of family, their employment and otherwise. It is with those authorities in mind that the judge at paragraphs 55 to 57 quite rightly went on to consider the Appellant's length of residence in the UK, that he had never visited the country of return since he departed at the age of 6, that he did not have any family, immediate or extended in the country of return, that his entire family was in the UK, that he was educated in the UK and all of his friends were here, and that these factors constituted very compelling circumstances. Therefore, it was open to the judge to conclude that the Appellant was an extreme example of a person who has come to the UK at a very young age who has no connections to the country of return and had spent most of their childhood and all of their adult life in the UK.

14.           With that in mind, it was also open to the judge to find that the Appellant had developed deep-rooted family ties and friendships in the UK and that his entire immediate family was here and that he had no family in the Netherlands and that his education, work and social life had all taken place in the UK. The judge then went on to consider the Appellant's rehabilitation bearing in mind the guidance from the Court of Appeal and Supreme Court in HA (Iraq) at paragraphs 58 to 59 which stressed that evidence of rehabilitation must be compelling and must show the individual's rehabilitation reduces the risk they pose to society, and with that in mind, it was open to the judge to find at paragraphs 60 to 63 that the Appellant had, having heard from the Appellant's family and that the Appellant was remorseful and that they would support him on release and that he had exceptionally actively participated in vocational courses in prison, then noting his certificates and his earned privilege status and that he was identified as a model prisoner, his risk of reoffending was low and the Appellant's intention is to complete his education and reintegrate into society, which were commendable, whilst bearing in mind the cautious nature that one should approach when considering rehabilitative courses, and which pointed to the judge's conclusion that deportation would undermine the rehabilitation efforts undertaken as he would be returned to the Netherlands where he had no ties or family or familiarity and would sever his connections to UK society, which is the only one he knew. I thus find that the judge's findings on the basis of very compelling circumstances went beyond those identified under Exception 1 and were reasoned and supported by binding authority and therefore I find that there is no error of law in respect of Ground 2 either.

15.           In light of the above findings, I do not find that there is any merit in the grounds and I do not find that there is any material error of law in the decision of the First-tier Tribunal.

Notice of Decision

16.           The decision of the First-tier Tribunal shall stand.

17.           The appeal to the Upper Tribunal is dismissed.

 

P. Saini 

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

14 February 2025