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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005336
	First-tier Tribunal No: HU/50982/20204

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 27 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE McWILLIAM

DEPUTY UPPER TRIBUNAL JUDGE KIRK

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

PB

ANONYMITY ORDER MADE

Respondent

Representation :

For the Appellant: Litigant in person

For the Respondent: Ms A Ahmed, a Senior Home Office Presenting Officer

 

Heard at Field House on 23 January 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 Respondent, 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

 

Introduction

1.              We shall refer to the Respondent as the Appellant as he was before the First-tier Tribunal.

2.              The Appellant was anonymised by the First-tier Tribunal. There is no reason for us to interfere with that order. He was referred to by three initials by the First-tier Tribunal. However, it is the practice of the Upper Tribunal to refer to anonymised appellants using two initials.

3.              The Appellant's date of birth is 10 April 1986. He is a citizen of the Democratic Republic of Congo ('DRC').

4.              The Appellant appealed against the decision of the SSHD, on 13 November 2023, to refuse his human rights application under Article 8 of the European Convention on Human Rights ('ECHR') pursuant to 82(1) of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act'). In a decision which was promulgated on 9 October 2024, following a hearing 10 July 2024, the First-tier Tribunal allowed the Appellant's appeal. On 19 November 2024 the First-tier Tribunal granted the SSHD permission to appeal to the Upper Tribunal on the two grounds raised.

Issues

5.              Our task is to determine whether the First-tier Tribunal made a material error of law. We are not determining the appeal against the decision of the SSHD. It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. It does not matter that we would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

6.              We remind ourselves of the following principles that the law says must apply when considering whether there is an error of law. We summarise those, having considered: KM v Secretary of State for the Home Department [2021] EWCA Civ 693 AH (Sudan) v SSHD [2007] UKHL 49 , AA (Nigeria) v SSHD [2020] EWCA Civ 1296, MA (Somalia) v SSHD [2010] UKSC 49 and Volpi & Anor v Volpi [2022] EWCA Civ 464:

1.       The First-tier Tribunal is an expert tribunal, and an appellate court should not rush to find a misdirection an error of law merely because it might have reached a different conclusion on the facts or expressed themselves differently

2.       The UT should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

3.       The UT should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the UT's assessment of the facts.

4.       Where a relevant point is not expressly mentioned by the First-tier Tribunal, the court should be slow to infer that it has not been taken into account.

5.       The UT is an appellate court, and it is bound, unless there is compelling reason to the contrary, to assume that the First-tier Tribunal judge has taken the whole of the evidence into his consideration. The mere fact that the First-tier Tribunal does not mention a specific piece of evidence does not mean that he overlooked it.

6.       Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically.

7.       Reasons for judgment will always be capable of having been better expressed. An appellate court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.

8.       Decisions should be respected unless it is quite clear that the First-tier Tribunal has misdirected itself in law.

9.       The focus should be on the way the First-tier Tribunal performed the essence

7.              Parliament has decided that in the case of a foreign criminal who has not been sentenced to a period of imprisonment of four years or more, the public interest does not require their deportation unless Exception 1 or Exception 2 applies (see s.117C(3)). We have concluded that the judge erred in respect of s.117C(5)- Exception 2. However, there is no error in respect of s.117C(4) - Exception 2. Therefore there can be no material error of law. Had the judge erred in respect of both provisions, the issue would be whether deportation would be proportionate on the basis that it is in the public interest to deport foreign criminals. We would have to weigh up factors for and against deportation in the light of the very strong public interest in the deportation of foreign criminals. As it is, we are not required to carry out such an assessment.

Background

8.              The Appellant, together with his mother and two siblings, entered the United Kingdom ('UK') without leave in 1992 when he was six years of age. On 18 December 2003, the Appellant's mother made an asylum application and listed the Appellant as a dependant. Following this, on 9 November 2004, the Appellant was granted indefinite leave to remain. The Appellant applied for naturalisation as a British citizen on 26 October 2013. This application was refused on 12 February 2014 because of his criminal history.

9.              The Appellant is in a permanent relationship with his partner, a British citizen. They have cohabited since 2015. They are currently undergoing IVF treatment to conceive a child. The Appellant's parents, several siblings, nieces and nephews all reside in the UK as British citizens.

10.          On 25 May 2018, the Appellant applied for 'no time limit' indefinite leave to remain which was granted on 5 September 2018. On 28 May 2021, the Appellant was convicted at Snaresbrook Crown Court for the offence of dangerous driving (the trigger offence), for which he was sentenced to 12 months' imprisonment, disqualified from driving for 29 months and ordered to pass an extended driving test.

11.          On 24 November 2021, the Appellant was served a notice of decision to deport dated 23 November 2021, to which he responded via his legal representatives on 20 December 2021.On 13 November 2023, the SSHD's decision to refuse his human rights claim was served on the Appellant.

The Appellant's criminality

12.          Between 28 February 2001 and 3 April 2021, the Appellant received 18 convictions for 30 offences. The judge correctly stated that there was a break in offending between 2016 and 2021. However, he incorrectly recorded that the Appellant had received a custodial sentence of 6 weeks in 2008 for criminal damage. The sentence imposed was 42 weeks.

13.          We will summarise the details of the offences committed by the Appellant. In 2002 and 2011 he was convicted of assaulting a police officer. He has committed two offences against property; six offences of theft and similar offences; two public order offences, eight offences relating to police/court/prisons, two offences relating to drugs, seven offences described as "miscellaneous" and two offences described as "non-recordable".

14.          We agree with the judge that most of the Appellant's offences were committed when he was a minor. Giving more scrutiny to these than the First-tier Tribunal, we note that the Appellant became an adult in 2004. As an adult he committed a series of road traffic offences for which he received sentences of imprisonment of 8 weeks and 4 weeks to run concurrently. In 2008 the Appellant was sentenced to 42 weeks imprisonment for criminal damage. In 2010 he was convicted of possession with intent to supply cocaine and received a suspended sentence. In 2011, he was convicted of assaulting a police officer. We note that in 2013 the Appellant was convicted of failing to stop a vehicle when required to do so by a police officer or a traffic warden. He has convictions for theft for which he received suspended sentences. He has breached community orders on a number of occasions.

15.          Despite these offences, the SSHD did not try to deport the Appellant until he was convicted of the trigger offence in 2021. The judge did not set out the details of the offence disclosed by the remarks of the sentencing judge. The Appellant was requested to stop his car by the police but he chose to drive by mounting the kerb while driving at speed against the flow of the traffic. The judge said that the manner of his driving," shows deliberate and decisive driving by you in an apparent way to try and get away from the police because of possible other criminality. It was clearly dangerous, and your driving showed that you had a disregard of other persons using the road that day and you were clearly intent on avoiding detention". The sentencing judge took into account that the Appellant could have caused a fatality or serious injury and that his driving was "very, very dangerous".

 

Findings of the Judge

16.          The judge allowed the Appellant's appeal finding that he met Exceptions 1 and 2.

17.          The judge noted that the Appellant came to the UK at the age of six years (at [57]) and had resided in the UK for 32 years including his formative years (at [65]). His primary language is English (at [57]). He does not speak Lingala and 'this would present an obstacle to his integration' in the DRC (at [56]). He observed that the Appellant's qualifications, 'particularly the ones relating to literacy and speaking and listening skills' suggested that he 'is not a natural scholar and would struggle to learn Lingala.' (at [58]). He noted that there was 'little evidence' that the Appellant and his family 'have retained their cultural knowledge of the DRC' (at [67]). In relation to the Appellant's family ties in the UK, the judge noted that he 'is part of a close-knit family' and he regularly trains with his nephews at the gym and has plans to open a gym with his brother (at [60]). He no longer has family members in the DRC and has no contact with his biological father who he believes to be dead (at [61]). He 'has no relatives remaining in the DRC to assist with his integration' (at [65]). The Judge accepted the Appellant's evidence that he 'would be considered an outsider on return and at risk' and noted that the Appellant's claim of political instability in the DRC was supported by the country evidence (at [63]).

18.          The judge cited and considered the guidance of Sales LJ in SSHD v Kamara [2016] EWCA Civ 813 , and concluded at [68]-[69]:

"In my judgement, the evidence provided by the appellant demonstrates that he requires a strong network around him in order to feel integrated. The vast majority of his life has been spent in the UK. I accept his evidence that he is likely to be viewed as an outsider in the DRC having spent so many years integrated in the UK. The language difficulties provide a very significant obstacle to him. The evidence shows that the appellant does not have a full employment history in the UK. There are periods where he has had to rely upon on benefits in the UK. There is no reason why, on return, the appellant would change such that he would be able to enter employment in the DRC without any difficulty. There is evidence that he would not receive any financial support from his partner as she is not able to do so.

I have considered all the evidence in the round and find that, although very finely balanced, the appellant has demonstrated on the balance of probabilities that he would face very significant obstacles to integration on return to the DRC. Consequently, I find that the appellant has demonstrated that Exception 1 applies".

19.          The judge cited the guidance provided by Lord Stephens in SC (Jamaica) v Secretary of State for the Home Department [2022] UKSC 15. He found that the Appellant had lawfully resided in the UK for 32 years, following his arrival in the UK in 1992, when he was six years of age (at [46]). He undertook all his schooling in the UK and obtained further qualifications after leaving school (at [48]). He has a close bond with his family members, all of whom live in London, and he 'plays a supportive role in their lives' (at [50]). The Appellant provided evidence of his employment in the UK and a long-standing friendship with a work colleague (at [51]). Evidence of the fertility treatment he and his long-term partner are undergoing was before the Tribunal and was not challenged (at [52)]. In relation to the Appellant's criminal history, the judge observed at [53]-[54]:

"The appellant does have a lengthy criminal history. Much of it took place whilst the appellant was a youth and a young man. There are periods when he has not offended. These periods appear to correlate with times when the appellant was working. Other than the conviction in 2021, the appellant had had a period of five years without any offending. This represents the time that he has been in a relationship with Ms Scott. She appears to have been a positive influence on him.

The appellant's offending has primarily been linked to cars, either driving or acquisitive offending. There is limited violent behaviour. There is no evidence to show that the appellant is part of a gang or that he is associating with pro-criminal peers. There is no suggestion that the appellant has any addictions. The sentence of 12 months' imprisonment is the longest sentence the appellant has received".

20.          The judge concluded at [55]:

"Given the length of time the appellant has been in the UK, his history of work and attending college to undertake courses, his position within his family of seven siblings and his relationship with his partner, and having considered all of the evidence in the round, I find that the appellant has demonstrated on the balance of probability that he is socially and culturally integrated in the UK".

21.          The judge noted the unchallenged evidence that the Appellant and his partner are undergoing fertility treatment in the UK (at [71]), and they are about to embark on their third round of treatment which will be the last to which they are entitled to on the NHS (at [72]). If the Appellant were to return to the DRC 'this procedure could not take place.'(at [72]). The Appellant needs to be in the UK for the treatment and his partner 'needs his emotional support.' (at [72]). The judge concluded that if the Appellant were returned to the DRC 'there is no prospect that she could have a baby with the appellant' (at [73]) in the context of Exception 2 :

"Were the appellant to be deported, [his partner] would not be able to become a mother. In my judgment, this amounts to an insurmountable obstacle as the appellant would not be able to take part in the treatment because he would be in the Zika/Ebola zone permanently".

22.          The judge considered that the obstacles the Appellant's partner would face if she were to accompany him to the DRC. He noted that she would lose access to the third round of IVF treatment and if she were to return to the UK, she would not be able to undertake treatment for reason that she would have been residing in an area where the Zika/Ebola virus is prevalent (at [75]). The judge also noted the language barrier that the Appellant's partner would face which would impact on her ability to enter the employment market (at [76]). The judge concluded at [77]-[78]:

"Whilst language barriers and employment might ultimately be overcome after some time, in my judgement, the fact that Ms Scott would have to cease her IVF treatment in the UK whether the appellant remains or whether she travels with the appellant to the DRC would be unduly harsh on [his partner] as this is the only route she has to have children with the appellant.

I find that the appellant has demonstrated on the balance of probabilities that his deportation would be unduly harsh on [his partner] were he to return alone or if the couple would return together because they would have to abandon their chances of having a biological child of their own".

The Legal Background

23.          When a person who is not a British citizen is convicted in the UK of an offence for which he is sentenced to a period of imprisonment of at least 12 months, section 32(5) of the UK Borders Act 2007 requires the Secretary of State to make a deportation order in respect of that person (referred to in the legislation as a "foreign criminal"), subject to s.33. Section 33 of the Act establishes certain exceptions, one of which is that "removal of the foreign criminal in pursuance of the deportation order would breach... a person's Convention rights": see s. 33(2)(a).

24.          The way in which the question of justification should be approached where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches Article 8 is governed by Part 5A (ss. 117A-117D) 2002 Act (inserted by amendment in 2014). The standard of proof is the balance of probabilities.

25.          Foreign criminals are divided into categories which include those with sentences of between one- and four-years imprisonment (medium offenders) and those sentenced to four years or more (serious offenders). This Appellant is a medium offender.

26.          When considering whether deportation is justified as an interference with a person's right to respect for private life and family life under Article 8(2) of the ECHR, s. 117A(2) of the 2002 Act requires decision-makers to have regard in all cases to the considerations listed in s.117B, and in cases concerning the deportation of foreign criminals to the considerations listed in s.117C.

27.          The relevant parts of s.117C of the 2002 Act, provide:

(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.

28.          The Appellant relies on family life and says that Exceptions 1 and 2 (s.117C (4) and (5)) apply. The 2002 Act tells us that that the public interest requires a medium offender to be deported unless Exceptions 1 or 2 apply. If either applies, in accordance with the statute, the Appellant's appeal must be allowed. If neither Exception applies, the public interest requires deportation and the Appellant's appeal must be dismissed unless there are very compelling circumstances in the context of s.117C (6).

Case Law

s.117(4) "unduly harsh"

29.          We will summarise the principles set out in case law relating to unduly harsh. The case law includes KO (Nigeria) & ors v SSHD [2018] UKSC 53, HA (Iraq) v SSHD [2022] UKSC 22, MK (section 55 - Tribunal options) [2015] UKUT 223 and NA (Pakistan) v SSHD & ors [2016] EWCA Civ 662.

30.          It follows from the legislative framework, as interpreted by the courts including the Supreme Court, that the decision maker is required to first decide whether Exceptions 1 and 2 are met. If they are not met, the decision-maker must assess whether there are very compelling circumstances over and above these exceptions which outweigh the public interest.

31.          The unduly harsh test is a self-contained exercise. That means that it is not permissible for a judge to consider public interest considerations, the seriousness of the Appellant's offending and or the length of his sentence when assessing unduly harsh. The assessment of unduly harsh is confined to consideration of the impact of deportation on, in this case, the Appellant's partner. The impact of deportation on her is not to be weighed against the criminality of the Appellant. Unduly harsh does not equate with uncomfortable, inconvenient, undesirable or merely difficult. It poses a considerably more elevated threshold. "Harsh" in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb "unduly" raises an already elevated standard still higher

32.          It is important not to lose sight of the fact that the hurdle is not as high as that set by the test of "very compelling circumstances" in s.117C(6).

S.117C (5) (a) - very significant obstacles

33.          Like s.117C (4), this is a self-contained test. It is not permissible for the decision maker to consider, at this stage public interests considerations in the deportation of the Appellant.

34.          In Kamara Sales LJ at [14] outlined the 'insider' test for assessing an individual's social and cultural integration:

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.

35.          In NC v SSHD [2023] EWCA Civ 1379 at [25] the Court of Appeal summarised the approach that should be taken by a decision maker when considering very significant obstacles with reference to Kamara, Lal v SSHD [2019] EWCA Civ 1925 and Parveen v SSHD [2028] EWCA Civ 932:

"It is not in doubt, based on these authorities, that (i) the decision-maker (or tribunal on appeal) must reach a broad evaluative judgment on the paragraph 276ADE(1)(vi) question (see  Kamara at [14]), (ii) that judgment must focus on the obstacles to integration and their significance to the appellant4) (see  Parveen  at [9]) and (iii) the test is not subjective, in the sense of being limited to the appellant's own perception of the obstacles to reintegration, but extends to all aspects of the appellant's likely situation on return including objective evidence, and requires consideration of any reasonable step that could be taken to avoid Sales LJ addressed the Secretary of State's argument that the tribunal had failed to have proper regard to all relevant matters"

36.          The burden of establishing that there are very significant obstacles to his integration in the DRC lies with the Appellant.

s.117 C (5) (b) - social and cultural integration

37.          In SC, Lord Stephens cited with approval the judgment of the Court of Appeal in CI (Nigeria) v SSHD [2019] EWCA Civ 2027, at [77] and stated that in considering whether an individual is 'socially and culturally integrated' in the United Kingdom at [51]:

".. a judge should simply ask whether, having regard to his upbringing, education, employment history, history of criminal offending and imprisonment, relationships with family and friends, lifestyle and any other relevant factors, the individual was at the time of the hearing socially and culturally integrated in the UK".

38.          In Binbuga v SSHD [2019] EWCA Civ 551, Hamblen LJ, with whom Floyd LJ agreed, observed at [57] that 'cultural integration' refers to the 'acceptance and assumption [of the individual] of the culture of the UK, its core values, ideas, customs and social behaviour.' His Lordship continued at [58]:

"[s]ocial 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".

39.          He then quoted the following observations of the Upper Tribunal in its decision in Bossade (ss.117A- D-interrelationship with Rules) ('Bossade') [2015] UKUT 415 (IAC) at [55]:

... his history of offending (repeated robbery) betokens a serious discontinuity in his integration in the UK especially because it shows blatant disregard for fellow citizens. ... We also agree with Mr Jarvis that even when not in prison the claimant's lifestyle over the period when he was committing offences was manifestly anti-social. ... We have to decide whether he is socially and culturally integrated in the UK in the present. He is now 29. Whilst his recent acceptance of the reprehensible nature of his criminal conduct is an important factor, we consider the negative factors we have just mentioned indicate that his history of criminal offending broke the continuity of his social and cultural integration in the UK, and he has not regained it. This means that currently he has not shown he is socially and culturally integrated.

40.          In AM (Somalia) v Secretary of State for the Home Department [2019] EWCA Civ 774 ('AM (Somalia)') in his concurring judgment Lord Justice Males, agreeing with Lady Justice Gloster, who gave the principal judgment, summarised the particular factual matrix of AM at [93]:

In these circumstances the FTT was entitled to find that the appellant was not socially and culturally integrated in the United Kingdom. That was so not merely because of his conviction for a serious offence and the time which he had spent in prison as a result, but also because of the long period of anti-social criminal behaviour leading up to that conviction, the complete absence of any family life in this country for what was at the time of the hearing before the First Tier Tribunal the last 14 years, and the absence of any evidence of social or other connections here other than the mere fact of his lawful presence in this country. This was no doubt an unhappy life, particularly as there are some indications that AM wanted to reform, but it cannot be described as a life of social or cultural integration in this country."

41.          In CI, Leggatt LJ noted that the purpose of the assessment whether someone was socially and culturally integrated was to assess the extent to which deportation would involve an interference with the person's private life rather than an assessment of the strength of the public interest in deportation. Leggatt LJ stated at [62]:

".. the impact of offending and imprisonment upon a person's integration in this country 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 on whether and how deeply the individual was socially and culturally integrated in the UK to begin with"

42.          Leggatt LJ later observed at [77]:

" .. the judge should simply have asked whether - having regard to his upbringing, education, employment history, history of criminal offending and imprisonment, relationships with family and friends, lifestyle and any other relevant factors - [the appellant] was at the time of the hearing socially and culturally integrated in the UK. The judge should not, as he appears to have done, have treated [the appellant's] offending and imprisonment as having severed his social and cultural ties with the UK through its very nature, irrespective of its actual effects on [the appellant's] relationships and affiliations - and then required him to demonstrate that integrative links had since been 're-formed'.

S.117C (6) -Very Compelling Circumstances

43.          We do not need to say too much about this. Our conclusion is that there is no material error of law so that the issue of very compelling circumstances does not arise. However, we would like to emphasise that it is in the assessment of very compelling circumstances, that a decision maker must consider the public interest in deportation. It is an extremely demanding test. There is a high level of importance attached by Parliament to the deportation of foreign criminals and this can only be outweighed by very compelling circumstances in the case of an offender who does not satisfy s.117C (4) or (5).

 

 

Upper Tribunal hearing and submissions

44.          We had access to all the documents before the First-tier Tribunal and the composite bundle filed by the Appellant.

45.          Ms Ahmed relied on the grounds of appeal and made the following submissions expanding upon them. The Appellant relied on the skeleton argument before the First-tier Tribunal as a Rule 24 response (The Tribunal (Upper Tribunal) Procedure Rules 2008).

46.          Ms Ahmed submissions can be summarised;

Ground one - Exception 2 - misdirection and adequacy of reasons- irrationality- immaterial matters

47.          Then judge's findings on Exception 2 are based on speculation and assumptions, which are irrational. They fail to apply the correct legal standard in terms of the evidence and the burden of proof, which amounts to a material misdirection of law. The judge erred because the assumption was made that the couple's IVF treatment in the UK will be successful. This is not supported by any evidence. The judge did not make findings about the availability of treatment in the DRC. The judge failed to provide adequate reasons for accepting evidence about the Zika/Ebola virus risks which was provided by an individual whose expertise or qualifications to make such an assessment was not detailed, which amounts to a material error of law. A finding that DRC nationals who may wish to conceive a child should be permitted to remain in the UK because of the Zika/Ebola risks in the DRC is perverse and irrational.

Ground two - Exception 1 - misdirection- inadequate reasons

48.          The judge failed to apply all case law relevant to the very significant obstacle test in deportation cases, and this amounts to a misdirection of law and the conclusions reached on this material issue were inadequately reasoned. The judge did not Kamara [to support the conclusion that the Appellant would struggle to reintegrate in the DRC and be viewed as an 'outsider', he failed to adopt the finding in Bossade or and AS v SSHD [2017] EWCA Civ 1284. which found that the very significant obstacle test involves more than whether somebody is an 'insider' or not.

49.          The SSHD says that the judge made a material misdirection of law in assessing the Appellant's social and cultural integration into the UK. The judge failed to provide adequate reasons as to why the Appellant is culturally and socially integrated in the UK when considering his extensive criminal history. The judge failed to apply CI, which provides findings similar to those in Bossade and Binbuga in which it was found that the nature and frequency of an individual's offending can impact on their social and cultural integrative links to the UK. In finding that the Appellant was socially and culturally integrated into the UK, the judge failed to have any regard to the Appellant's extensive criminal record in the UK. The judge failed to take into account that social and cultural integration in the UK connotes integration as a law-abiding citizen.

Error of law

50.          The SSHD conceded that the Appellant met the requirements of s.117C (4) (a) because he has been here lawfully most of his life. It was accepted by the SSHD that the Appellant and his partner are in a genuine and subsisting relationship. The Appellant and his partner's credibility was not challenged, and the judge accepted their evidence. Most of the findings of the First-tier Tribunal are not the subject of any cogent challenge, save those relating to the political situation in DRC and the findings concerning IVF. The grounds, in so far as they seek to challenge findings concerning the Appellant's language, employment, support of family and ability to learn; are nothing more than disagreements with the findings of the judge. The primary challenge is to the application of the relevant tests under s.117C (4) and (5).

Ground one

51.          It is well-established that an appellate court should exercise caution when considering first instance decisions of the First-tier Tribunal as a specialist tribunal of fact. The Court of Appeal and Supreme Court have repeatedly emphasised that an error of law should not be assumed where the First-tier Tribunal has not expressly referred to an authority or statutory provision. We take into account that For example, in AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296, [2020] 4 WLR 145 ('AA (Nigeria)') Popplewell LJ stated at [34]:

Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so.

52.          We bear the above in mind when considering whether the judge erred. The judge did not cite the relevant authorities when considering whether it would be 'unduly harsh' for the Appellant's partner to either return to the DRC with him, or for the Appellant to return to the DRC alone. This is not in itself an error of law, however, the decision does not disclose that he applied the correct law. This not an error.

53.          While we exercise caution in interfering with the decision of the judge, we accept that the ground is made out. The judge did not set out the applicable test. The judge attached considerable weight to the Appellant and his partner undergoing IVF treatment and his finding that she would not become a mother if the Appellant is deported. This finding is wholly speculative. The Appellant's partner was not pregnant and it was far from certain that she would become pregnant through IVF. In terms of returning to the DRC, the judge attached weight to advice for those travelling to the DRC pre and post pregnancy; however, the Appellant and his partner do not fall into either category.

54.          The judge attached evidence to an email from Letitia Ruiz who is described as, "Fertility Sister" about the chances of the pregnancy becoming effected by the Ebola/Ziko virus. There was no scrutiny of this evidence. Her advice chimes with the general advice to those travelling to the region as tourists. However, the Appellant and his partner would not be travelling to DRC as tourists. While IVF would not be available in the DRC on the NHS, there was no evidence that there are no fertility clinics in the DRC which the Appellant and his partner could access.

55.          In respect of the impact of separation on the Appellant's partner, while it would be very distressing for her to abandon IVF or continue with it without the Appellant being in the UK, the judge's decision does not explain how the elevated test is met. We have no doubt that IVF is a traumatic procedure, and that the Appellant's partner has struggled with fertility issues; however, we do not find that the judge had the elevated test in mind when considering unduly harsh.

56.          We accept that IVF may be one matter amongst others to consider within the assessment of unduly harsh; however, in this case the judge's decision is based on the couple undergoing IVF and the prospect of the Appellant's partner becoming a mother. We note that the judge when assessing whether the Appellant's partner could return with him to the DRC, took other matters into account such as language and employment. We also note the issues raised in the Appellant's skeleton argument. Nevertheless, we find that the judge attached undue weight to immaterial matters and the decision is irrational. The judge speculated about the partner's chances of becoming a mother. The reasoning concerning the Zika /Ebola virus is inadequate and follows from insufficient scrutiny of the evidence. Moreover, there is no protected right under Article 8 to fertility treatment either in the context of private or family life. The judge erred in respect of the "stay" and "go" scenario.

Ground two

57.          Dealing with the issue of social and cultural integration, we remind ourselves of the caution we must exercise when interfering with the decision of the First-tier Tribunal. It is irrelevant that we would have arrived at a different conclusion. It is impermissible for us to find an error of law on the basis that we do not agree with the judge's decision and would have reached a different conclusion, without identifying irrationality.

58.          The judge set out the Appellant's criminality at [8] of the decision. He directed himself at [15] as to the correct test, with reference to SC. He took into account that there was a break in offending between 2016 and 2021 and that many of the offences took place when the Appellant was a youth. The judge observed that the Appellant had served two sentences of imprisonment prior to the trigger offence. The judge attached weight the Appellant having been in the UK since he was a child aged 6 and that he had been here lawfully for most of the time and that he has family in the UK. The judge attached weight to the Appellant having been educated in the UK throughout his schooling and letters of support including from his former work colleagues. The judge attached weight to the Appellant's relationship with his family including partner. In the light of the period of time that the Appellant has been in the UK and his family ties, employment and family life, the judge was entitled to conclude that the integration had not been broken by his criminality. The decision is adequately reasoned.

59.          The grounds ignore that the assessment is fact sensitive. The facts in Bossade are very different to the facts in this case. The appellant in Bossade had been sentenced to 3 years and 9 months for robbery. While he had come to the UK at a young age like the Appellant, his offending was more serious and recent. He had spent a significant period of time in prison and the panel found that when out of prison, his behaviour was anti-social. The panel found that he was "excluded from outside society". Furthermore, there was an OASys report before the panel that supported that the appellant presented a risk of re-offending. The facts of CI are different to those in the Appellant's case. The appellant in CI had spent considerably more time in prison than this Appellant. He did not have family life of significance. He did not have a genuine or subsisting relationship with a partner or child.

60.          In respect of the judge's finding that there would be very significant obstacles to integration, this was open to him on the evidence. It is unarguable that the judge did not apply the correct test. He directed himself on Kamara at [66] and the assessment accords with the approach advocated by the Court of Appeal in NC.

61.          The judge gave adequate reasons for finding that there would be very significant obstacles to integration. He was entitled to attach weight to the length of time that the Appellant had resided in the UK (thirty-two years) and that he had spent his formative years in the UK. He accepted that the Appellant could not speak Lingala and that he would struggle to learn the language. The judge found that there was little evidence that he had retained cultural knowledge of the DRC. The judge was entitled to find that the Appellant requires a strong network around him to feel integrated (see [68]) and that he has a close-knit family in the UK and conclude that he would be considered an outsider because he had spent so many years integrated in the UK. The judge was entitled to take into account that the Appellant's partner would not be able to support him in times of unemployment in the DRC. The judge accepted that the Appellant does not have family in the DRC. While the judge did not identify what extract of the SSHD's Country Policy and Information Note (CPIN) of 2023 he relied on relied on, we find that political instability was not material to the decision. (We note that the Appellant's skeleton argument referred to a USSD report on the DRC; however, it is difficult to see how human rights abuses could personally affect this Appellant so that it would support very significant obstacles to intervention.)

62.          The judge accepted that the decision was finely balanced (see [69]). We are satisfied that the judge made a 'broad evaluative judgment'' ( Kamara at [14]). We are satisfied that the judge applied the correct law and the findings in relation to the 'very significant obstacles' the Appellant will encounter in his reintegration in DRC society are neither 'plainly wrong' or 'rationally insupportable'.

63.          We find that the judge properly directed himself on the law. He made findings that are grounded in the evidence and adequately reasoned. The judge made a decision that was open to him on the evidence. Whether we disagree with the decision and would have made a different decision is irrelevant to our assessment.

Conclusion

64.          We remind ourselves that Parliament says that we are not permitted when assessing s.117C (4) and (5) to consider the public interest in deportation of a foreign criminal. We have concluded that the judge erred in respect of s.117C(5). However, there is no error in respect of s.117C(4). Therefore, properly applying statutory law, the error is immaterial and this appeal must be allowed. Had the judge erred in respect of both provisions, the issue would be whether deportation is proportionate on the basis that it is in the public interest to deport the Appellant because he is a foreign criminal of the task required.

65.          The judge erred in law; however, the error is not material to the decision to allow the appeal. We do not interfere with the decision of the judge. The decision to allow the Appellant's appeal is maintained.

Notice of Decision

66.          The making of the decision of the First-tier Tribunal did not involve a material error of law. The decision of the First-tier Tribunal is maintained.

67.          The decision allowing the Appellant's appeal stands.

 

 

Joanna McWilliam

 

Judge McWilliam

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

Dated: 26 February 2025