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Bossadi (Paragraph 276ADE; Suitability; Ties)

Judgment Immigration Appeal Reports Cited authorities 8 Cited in 46 Precedent Map Related
Vincent
JurisdictionUK Non-devolved
JudgeStorey,Dawson,Storey UTJ,Dawson UTJ
Judgment Date28 January 2015
Neutral Citation[2015] UKUT 42 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date28 January 2015
Categories

[2015] UKUT 42 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE Storey

UPPER TRIBUNAL JUDGE Dawson

Between
The Secretary of State for the Home Department
Appellant
and
Yan Bossadi
Respondent
Representation:

For the appellant: Mr P Deller, Senior Home Office Presenting Officer

For the respondent: Mr K Mak, Solicitor, MKM Solicitors

Bossadi (paragraph 276ADE; suitability; ties)

(1) Being able to meet the requirements of paragraph 276ADE of the Immigration Rules requires being able to meet the suitability requirements set out in paragraph 276ADE(1). It is because this subparagraph contains suitability requirements that it is not possible for foreign criminals relying on private life grounds to circumvent the provisions of the Rules dealing with deportation of foreign criminals.

(2) The requirement set out in paragraph 276ADE (vi) (in force from 9 July 2012 to 27 July 2014) to show that a person “is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”, requires a rounded assessment as to whether a person's familial ties could result in support to him in the event of his return, an assessment taking into account both subjective and objective considerations and also consideration of what lies within the choice of a claimant to achieve.

ERROR OF LAW DECISION AND REASONS
1

On 23 July 2013 the appellant (hereafter Secretary of State for the Home Department or SSHD) decided to make a deportation order against the respondent (hereafter the claimant) in accordance with s.32(5) of the UK Borders Act 2007 on the ground that he was a foreign criminal sentenced to a period of imprisonment of at least 12 months and someone who did not fall under any of the exceptions set out in s.33 of that Act. The claimant who was born in 1986 and is a national of the DRC had a history of offending with convictions in 2002, 2004, 2005, 2006, 2008, 2009, 2010, 2011 culminating in a conviction at Croydon Crown Court for robbery and related offences for which he received a sentence of 42 months imprisonment. The claimant appealed against the SSHD's deportation order. In a determination of 24 June 2014 a First tier Tribunal (FtT) panel comprising Judge Abebrese and NLM Richardson allowed his appeal under Articles 3 and 8 ECHR and paragraph 276ADE of the Immigration Rules. The respondent was successful in obtaining a grant of permission to appeal, bringing the matter before us.

2

We are grateful to both parties for their submissions. We have decided that the FtT materially erred in law in several respects.

3

First, in relation to Article 3, its reasoning is seriously deficient. The entirety of the reasoning is set out at [14] as follows:

“In respect of Article 3 the Tribunal is also of the view that bearing in mind the facts and the circumstances of this particular appellant and the tender age which he came into this country he would have been (sic) at risk in respect of Article 3 if he were to be removed to the DRC.”

4

Disregarding the use above of an incorrect tense, the FtT wholly failed to explain why it would be relevant to risk on return to the DRC that the claimant had left the DRC when he was around 4–5 years old. In submissions the FtT had been alerted to a judgment of Phillips J in P (DRC), R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3879 (Admin) which considered that there was a real and substantial risk that criminal deportees to the DRC would be subjected to ill treatment on return to that country. However, Philips J specified that he could not bind the respondent in relation to other cases involving the deportation of convicted criminals to the DRC and went on to urge the Upper Tribunal to consider giving further country guidance to clarify the issue. Accordingly, even if the FtT can be presumed to have had this judgment in mind, it was necessary for it to identify the evidence which caused it to conclude that P (DRC) should be followed. In para 13 the FtT did refer to “the appellant's and his mother's evidence and the circumstances that he would face if her (sic) were to be deported to the DRC”, but without any further elaboration, it is difficult to know what evidence concerning risk on return it had in mind here, if any; it may be that here it meant to address only Article 8 circumstances.

5

In the second place, the FtT erred in allowing the appeal under the Immigration Rules. Whilst concluding that the claimant could not meet the requirements of the Rules dealing with deportation of foreign criminals as set out in paragraphs 399 and 398, it proceeded to rule that he met the requirements of paragraph 276ADE on the basis that he has been in the UK for over 20 years and did not have any family, social or cultural ties in the DRC. It clearly had in mind that the requirement set out at paragraph 276ADE(vi) that applied to the claimant was that he had to show that he “is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the U.K.” Leaving aside that the FtT nowhere explained why the accepted fact that the claimant had four uncles in the DRC was not to be possibly indicative that the claimant still had family ties there (see further below), it failed to understand that the suitability requirements are an integral part of paragraph 276ADE. Being able to meet the requirements of paragraph 276ADE of the Immigration Rules requires being able to meet the suitability requirements set out in paragraph 276ADE(i) 1. It is because this subparagraph contains suitability requirements that it is not possible for foreign criminals relying on private life grounds to circumvent the provisions of the Rules dealing with deportation of foreign criminals. As from 28 July 2014 para 276ADE has been amended 2,

but at both the date of application and decision in this case the relevant rule read as follows:

“276ADE. The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) is aged 18 years or above, has lived continuously in the UK...

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