As v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Irwin,Lady Justice Rafferty |
| Judgment Date | 23 August 2017 |
| Neutral Citation | [2017] EWCA Civ 1284 |
| Docket Number | Case No: C5/2016/0590 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 August 2017 |
[2017] EWCA Civ 1284
Lady Justice Rafferty
Lord Justice Irwin
and
Lord Justice Moylan
Case No: C5/2016/0590
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
Royal Courts of Justice
Strand, London. WC2A 2LL
Tim Buley (instructed by Elder Rahimi) for the Appellant
Julie Anderson (instructed by Government Legal Department) for the Respondent
Hearing dates: 21 st June 2017
Approved Judgment
This is an appeal by an Iranian national ("AS") from the decision of the Upper Tribunal ("the UT") allowing the Secretary of State's appeal from the decision of the First-tier Tribunal ("the FtT") that his deportation would be unlawful.
The Secretary of State made a decision on 15 th November 2013 to deport AS following his conviction for a number of offences. On 7 th October 2014, the FtT allowed AS's appeal from that decision. The Secretary of State appealed that decision to the UT. Following a hearing on 23 rd March 2015, the UT set aside the FtT's decision on the basis that it was vitiated by a material error of law, namely by failing to apply the new formulation of the Immigration Rules ("the IR") and the provisions of sections 117A–D of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") which had come into effect on 28 th July 2014.
The UT re-made the decision and, on 10 th December 2015, dismissed AS's appeal from the Secretary of State's decision.
AS appeals to this court from that determination. Initially, three grounds of appeal were advanced but, by the date of the hearing, they had reduced to two. First, that the FtT had not made any error of law in its assessment of whether there were "very significant obstacles" to AS's integration into Iran. Secondly, that the UT's own approach to this determination was seriously flawed in a number of respects including by treating adaptation as the same as integration; by setting the bar too high; and by discounting the need for "very serious reasons" to justify the deportation of AS.
Background
AS was born in Iran on 4 th October 1995. He came to the UK with his mother on 24 th February 2005 when he was aged 9. They had been given leave to enter, and indefinite leave to remain in, the UK under the family reunion policy. His father, who had arrived in the UK in 2003, had been granted indefinite leave to remain as a refugee in 2004. AS's mother became a UK national in June 2010.
On 8 th December 2009 AS was convicted of three counts of attempted robbery and sentenced to a 12 month referral order. On 8 th November 2011 he was convicted of possession of an offensive weapon and sentenced to a six month referral order.
On 14 th March 2013, when AS was aged 17, he was convicted of six counts of robbery, three counts of attempted robbery and one count of handling stolen property. On 11 th April 2013 he was sentenced to three years in a Young Offender Institution.
The Youth Offending Team's pre-sentence report stated that the commission of the "index offence" displayed a "propensity to commit offences for personal gain". The report also said:
"AS was unable to exercise future or consequential thinking skills and appears to have given no prior thought to the impact his offending may have had on the victims … The index offence is assessed as part of an emerging pattern of offending relating to acquisitive crime, threat of violence and weapons. It also represents an increase in the seriousness of AS's offending".
The likelihood of his re-offending was assessed as medium.
The report also referred to AS being "academically capable". He had completed his GCSEs and was attending college studying for a BTec in business studies.
In his sentencing remarks the judge said:
"All the robberies were committed at night between 28 th December and 8 th January 2013 around Barnes Pond and Common. You have admitted deliberately choosing this area to target young posh people as you put it. Your victims, aged 15 to 18 years, were all very frightened because all these offences were at knife point.
The judge noted the following aggravating features: that all the offences were preplanned; that they were committed at night; that vulnerable young victims were targeted; and that AS was in possession of a knife.
On 8 th August 2013 the Secretary of State wrote to AS seeking reasons why he should not be deported. A number of representations were received. As referred to above, on 15 th November 2013 the Secretary of State decided that AS should be deported. The decision letter referred to Art. 8 of the ECHR, paragraphs 396, 397 and 398 of the Immigration Rules and s.55 of the Borders, Citizenship and Immigration Act 2009. The Secretary of State decided that the public interest in AS's deportation was not outweighed by other factors, including the consequent interference with AS's private and family life in the UK, and that his deportation would not breach his rights under Art. 8.
Legislative Framework
This case has focused on the changes made to the IR with effect from 28 th July 2014. These changes were in the context of the changes also made to the 2002 Act, by section 19 of the Immigration Act 2014 which added sections 117A–D to the former.
The rules which applied prior to 28 th July 2014 provided as follows:
"398. Where a person claims that their deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention, and
…
(b) the deportation of the person from the United Kingdom is conducive to the public good 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;
…
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, itwill only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.
…
399A. This paragraph applies where paragraph 398(b) or (c) applies if —
…
(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the United Kingdom immediately preceding the date of the immigration decision (discounting any periods of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK".
Sections 117A–D of the 2002 Act set out a revised statutory framework. Section 117C is headed: "Article 8: additional "considerations in cases involving foreign criminals". Subsection 1 provides: "The deportation of foreign criminals is in the public interest". Subsection 3 provides:
"In the case of a foreign criminal ("C") who has not been sentenced to period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies."
The provisions of these sections, and of Exception 1 (s.117C(4)), are reflected in the changes made to the IR as summarised below.
Paragraph 398 was amended to provide, in place of the concluding words set out above, that "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".
Paragraph 399A was amended to read as follows:
"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;
(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."
FtT Decision
AS's appeal to the FtT was determined on 7 th October 2014. After referring to the evidence, the judge sets out the "new immigration rules". He then sets out the provisions of rules 398, 399 and 399A in the form in which they applied prior to 28 th July 2014.
The judge next quoted from MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544 and Ogundimu (Article 8 — new rules) [2013] UKUT 60 (IAC). Both of these decisions dealt, obviously, with the IR as they applied prior to 28 th July 2014. The latter decision was specifically quoted by the judge because of its consideration of the meaning of the word "ties". The former because it had considered the approach to the "new immigration rules".
The judge then set out his conclusion that AS did not meet the requirements of paragraph 399A of the IR because he had not lived in the UK for "at least half of his life", being the words used in the old version of that paragraph.
After quoting Art. 8, the judge refers to Üner v The Netherlands (2006) 45 EHRR 14 and states that where a person has spent the major part of his childhood and youth in the UK "very serious reasons are required to justify expulsion … all the more so where the person concerned committed the relevant offences as a juvenile".
The judge identified that there were compelling public interest considerations supporting deportation but decided that these factors were "not sufficiently serious to outweigh the consequences of interference with (AS's) private and family life". Accordingly, he allowed AS's appeal. In reaching this decision, the judge set out his conclusion that AS did not have any family ties with Iran and that "his social and cultural ties with Iran are tenuous". At the end of the penultimate paragraph, he said:
"(AS) has lived in the UK for most of his life and is socially and culturally integrated in the UK. I find that at his young age, with no social or family ties and remote cultural ties with Iran, there would be very significant obstacles to his integration in Iran".
There...
To continue reading
Request your trial
- Sanambar v Secretary of State for the Home Department
-
Secretary of State for the Home Department v SC (Jamaica)
...The starting point for the temporal question is the decision of this court in AS (Iran) v Secretary of State for the Home Department [2017] EWCA Civ 1284 per Moylan LJ at [39] where it was concluded that ‘most of his life’ is a quantitative not a qualitative concept. Everyone agrees that ‘m......
-
Upper Tribunal (Immigration and asylum chamber), 2019-12-20, [2019] UKUT 400 (IAC) (SMO, KSP & IM (Article 15(c); identity documents) (CG))
...build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life. In S [2017] EWCA Civ 1284; [2018] Imm AR 169, the court of appeal underlined the need for a broad, evaluative judgment under paragraph 276ADE(1)(vi), taking into ......
-
Upper Tribunal (Immigration and asylum chamber), 2019-10-15, [2019] UKUT 356 (IAC) (MS (British citizenship; EEA appeals))
...told the truth about Y’s relationship with the appellant. We note that, as held in AS v Secretary of State for the Home Department [2017] EWCA Civ 1284, the “integration test” requires consideration of “all relevant factors, some of which might be described as generic, such as a person’s ab......
-
Appendix Private Life - Very Significant Obstacles To Integration
...else, and to decide whether they regard them as "very significant"." At [58] of AS v Secretary of State for the Home Department [2017] EWCA Civ 1284, the Court of Appeal held as "...Consideration of the issue of obstacles to integration requires consideration of all relevant factors some of......