Akinyemi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Davis,The Master of the Rolls |
| Judgment Date | 04 April 2017 |
| Neutral Citation | [2017] EWCA Civ 236 |
| Docket Number | Case No: C5/2015/1255 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 April 2017 |
[2017] EWCA Civ 236
The Master of The Rolls
Lord Justice Davis
and
Lord Justice Underhill
Case No: C5/2015/1255
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Upper Tribunal (Immigration and Asylum Chamber)
UPPER TRIBUNAL JUDGE KEKIC
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Drabble QC and Mr Ranjiv Khubber (instructed by Turpin Miller LLP) for the Appellant
Mr Rory Dunlop (instructed by The Government Legal Department) for the Respondent
Hearing date: 28 February 2017
Approved Judgment
INTRODUCTION AND OUTLINE FACTS
This is an appeal against a decision of the Upper Tribunal dismissing the Appellant's appeal against a decision to deport him to Nigeria. The central feature of the case is that he has lived in the UK since birth and has never been to Nigeria and has no substantial links with that country. The outline facts are as follows.
The Appellant was born in this country on 21 June 1983, so he is now aged 33. His parents were Nigerian nationals who first came here as students. His father was granted indefinite leave to remain ("ILR") in October 1987 and became a British citizen in October 2004. His mother died when he was a teenager: it is not known what her immigration status was at that time, but it is fair to assume that she at least had ILR. He has two older brothers. The elder was born in Nigeria but became naturalised in 2000. The other was born in the UK, and as a result of the legislation in force at that time was a British citizen from birth. By the time the Appellant was born the legislation had changed – I give the details below – and he did not acquire British nationality automatically as a result of his birth here; and he has never acquired it since. He is a Nigerian national by virtue of his parents' original nationality. He does not have a partner or child. He has never left the UK, whether to visit Nigeria or anywhere else.
The Appellant has had a long record of criminal offending from his teenage years onwards. He has in all some twenty convictions for 42 offences. The most significant for our purposes are:
(a) On 5 July 2007 he was convicted of causing death by dangerous driving for which he was sentenced to four years' imprisonment. The circumstances appear to be that he suffered an epileptic fit while driving and lost control of his car and killed a cyclist. He knew that he was epileptic, and he was also driving while disqualified.
(b) On 31 January 2013 he was convicted of four counts of possession of heroin with intent to supply, one count of possession of diamorphine with intent to supply and one count of driving while disqualified. He was sentenced to a total of three and a half years' imprisonment.
We do not have a full record of his other offending but it includes:
• two convictions in 2000 for possession of a knife
• a conviction in 2001 for conspiracy to rob at knifepoint
• five convictions in 2005 and 2006 for driving while disqualified and while uninsured, for which he mostly received short periods of imprisonment
• a conviction in 2010 for possession of class A and class B drugs, for which he was fined
• a conviction in 2011 for using a vehicle while uninsured, taking a vehicle without consent and driving while disqualified, for which he was sentenced to four weeks' imprisonment.
Following the Appellant's conviction in 2011, the Home Office wrote to inform him that consideration had been given to making a deportation order in his case. He was told that a decision had been taken not to do so at that stage but that if he committed further offences he would be at risk of such an order being made.
Following the Appellant's conviction for drugs offences in 2013, on 13 February 2014 the Respondent made an order that he be deported to Nigeria.
The Appellant appealed against that order to the First-tier Tribunal on the basis that his deportation would be in breach of his rights under article 8 of the European Convention on Human Rights. By a determination promulgated on 29 August 2014 FTTJ Thanki allowed his appeal.
The Respondent appealed to the Upper Tribunal. By an order dated 24 November 2014 UTJ Kekic set aside the decision of the First-tier Tribunal and directed a hearing with a view to remaking the decision. That hearing took place on 19 January 2015. By a determination promulgated on 13 February Judge Kekic dismissed the Appellant's appeal against the deportation order.
This is an appeal against the decision of the Upper Tribunal. The Appellant was represented by Mr Richard Drabble QC, leading Mr Ranjiv Khubber, and the Respondent by Mr Rory Dunlop.
THE BACKGROUND LAW
DEPORTATION OF FOREIGN CRIMINALS
The Applicable Legislation
The Secretary of State's power to deport non-UK nationals derives from section 3 (5) of the Immigration Act 1971 (as amended), which reads, so far as material:
"A person who is not a British Citizen is liable to deportation from the United Kingdom if –
(a) the Secretary of State deems his deportation to be conducive to the public good; or
(b) …"
The UK Borders Act 2007 provides for a regime governing the deportation of non-nationals who are convicted in the UK of criminal offences. Section 32 reads, so far as material, as follows:
"(1) In this section "foreign criminal" means a person –
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) ….
(4) For the purpose of section 3 (5) (a) of the Immigration Act 1971 …, the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
(6) — (7) …"
Section 33, as referred to in section 32 (5), contains a number of exceptions to the obligation on the Respondent to deport a foreign criminal. On this appeal only Exception 1 is relevant, which, by sub-section (2), applies "where removal of the foreign criminal in pursuance of the deportation order would breach (a) a person's Convention rights, or (b) …".
The consideration by a court or tribunal of whether a decision made under the immigration legislation is in breach of the rights of any person under article 8 is subject to the provisions of Part 5A of the Nationality, Immigration and Asylum Act 2002, which was introduced by the Immigration Act 2014 with effect from 28 July 2014. Section 117A (2) provides that in considering whether an interference with a person's right to respect for their private and family life is justified under article 8 (2)
"the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C".
Section 117B reads:
"(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom."
Section 117C reads:
"(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.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2021-03-05, [2021] UKUT 95 (IAC) (Juba (s. 94B: access to lawyers))
...under Policy DP5/96 at any time after 1999, when that policy was amended. In Akinyemi v Secretary of State for the Home Department [2017] EWCA Civ 236; [2017] Imm AR 1216, the appellant (A) was born in the United Kingdom to Nigerian nationals who, although lawfully present, were not settled......
-
AM (Somalia) v The Secretary of State for the Home Department
...offences was taken to indicate a disregard for fellow citizens and a serious discontinuity in integration; and in Akinyemi v SSHD [2017] EWCA Civ 236 the court considered (per Underhill LJ at [53]) that presence in the UK from a young age was “ not a trump card” and might be outweighed by ......
-
Upper Tribunal (Immigration and asylum chamber), 2019-12-18, HU/06179/2017
...JO (Uganda) v SSHD [2010] EWCA Civ 10 at [18], [31] and [52]; DM (Zimbabwe) v SSHD [2015] EWCA Civ 1288 at [34-35]; Akinyemi v SSHD [2017] EWCA Civ 236 at [43]. In addition, in Hesham Ali the Supreme Court makes it clear at [25] and [99] that ‘a settled migrant’ in this context refers to a ......
-
Upper Tribunal (Immigration and asylum chamber), 2022-02-02, [2022] UKUT 00033 (IAC) (OA (Somalia) (CG))
...three warning letters, is a factor of considerable weight (as to which, see Akinyemi v Secretary of State for the Home Department [2017] EWCA Civ 236 at [53]). Moreover, the appellant has continued to offend, even during the currency of these proceedings, meaning he cannot point to the pass......
-
The Common Travel Area: Past, Present and Future After Brexit
...‘Windrush: How do you prove you’ve been living in the UK?’ BBC News (18 April 2018) accessed 7 April 2019. 83 Akinyemi v Home Secretary [2017] 1 WLR 3118. 84 Case C-200/02 Zhu and Chen v Home Secretary [2004] ECR I-9925, paras 18–19. 85 Case C-434/09 McCarthy v Home Secretary [2011] ECR I-3......