Chege ("Is a Persistent Offender")
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Andrews DBE |
| Judgment Date | 12 April 2016 |
| Neutral Citation | [2016] UKUT 187 (IAC) |
| Date | 12 April 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2016] UKUT 187 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mrs Justice Andrews Dbe
UPPER TRIBUNAL Judge Southern
For the Appellant: Mr Alasdair Mackenzie, Counsel, instructed by Islington Law Centre
For the Respondent: Mr Zane Malik, Counsel, instructed by the Government Legal Department
Chege (“is a persistent offender”)
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1. The question whether the appellant “is a persistent offender” is a question of mixed fact and law and falls to be determined by the Tribunal as at the date of the hearing before it.
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2. The phrase “persistent offender” in s.117D(2)(c) of the 2002 Act must mean the same thing as “persistent offender” in paragraph 398(c) of the Immigration Rules.
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3. A “persistent offender” is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or that the continuity of the offending cannot be broken. A “persistent offender” is not a permanent status that can never be lost once it is acquired, but an individual can be regarded as a “persistent offender” for the purpose of the Rules and the 2002 Act even though he may not have offended for some time. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date. Each case will turn on its own facts.
This is an appeal against the decision of First-tier Tribunal Judge M. Whalan promulgated on 22 July 2015 following a hearing on 15 May 2015, dismissing the appeal of the Appellant, (“Mr Chege”) against the Respondent's decision to deport him, made under s.3(5)(a) and s.5(1) of the Immigration Act 1971, on the basis that his deportation would be conducive to the public good.
The decision to make a deportation order was made after Mr Chege's most recent conviction for affray on 22 April 2013, an offence for which he was sentenced to 9 months' imprisonment. The deportation order was signed on 13 November 2013 and served on Mr Chege on 15 November 2013.
Mr Chege's case has been considered by the Upper Tribunal once before. The Respondent (“the Secretary of State”) successfully appealed against a decision by First-tier Tribunal Judge Morgan made on 22 October 2014 allowing Mr Chege's original appeal against the decision to deport him, under Article 8 of the ECHR under the Immigration Rules and on human rights grounds.
The Secretary of State's appeal was heard by the Upper Tribunal before a panel comprising Mr Justice Nicol and Upper Tribunal Judge Coker on 15 th January 2015. Their decision, promulgated on 5 March 2015, is reported at [2015] UKUT 00165 (IAC) (“ Chege (No. 1)”). It contains detailed guidance on the approach to be adopted by the tribunal in respect of Part 5A (ss117A-D) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) as inserted by s.19 of the Immigration Act 2014. The panel concluded that the assessment by First-tier Tribunal Judge Morgan was legally flawed and set aside the decision to be re-made. The appeal was remitted to the First-tier Tribunal to be re-heard, with no findings preserved.
At the time when Chege (No 1) was considered by the Upper Tribunal, as recorded in paragraph 34 of that decision, there was no challenge to the assessment made by the Secretary of State that Mr Chege is a “persistent offender”. However, at the hearing of the remitted appeal before Judge Whalan, Mr Mackenzie (who appeared on behalf of Mr Chege, as he did before us) withdrew that concession. As Judge Whalan stated in paragraph 37 of his decision, Mr Chege's appeal now turned, at least in the first instance, on the contention that he is not a persistent offender and consequently not a “foreign criminal” for the purposes of Part 5A of the 2002 Act.
If he is not a foreign criminal, when the First-tier Tribunal came to consider the question whether the decision to deport him was an unjustified interference with his Art 8 rights, the considerations under s.117C of the 2002 Act would not apply, although s.117B would apply in any event.
“Foreign criminal” is defined by s.117D (2) as:
“a person –
(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(c) who –
(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.”
There is no dispute as to Mr Chege's criminal record. Over a period of at least 15 years from October 1997 to April 2013 he amassed numerous convictions for a wide variety of offences including crimes of violence, public order, drugs, significant motoring offences and breaches of court orders. He received short custodial sentences of between 4 and 9 months on at least five separate occasions, but he was never sentenced to a period of imprisonment of 12 months or more. His offending history can be summarised as follows:
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i. Between October 1997 and March 1998 he was convicted (on two occasions) for three driving offences, including driving whilst disqualified, for which he was sentenced to three months' imprisonment.
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ii. Between March 2002 and May 2003 he accumulated three convictions for various offences, including handling stolen goods and failing to surrender to custody.
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iii. On 15 th May 2004, at Highbury Corner Magistrates' Court, he was convicted for driving whilst disqualified and failing to surrender to bail, for which he was sentenced to a total of five months' imprisonment (four months of which related to the driving offence).
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iv. Between May 2007 and September 2008, he accumulated four convictions for various offences, including possession of a Class A drug (heroin) criminal damage, common assault and disorderly behaviour.
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v. On 17 th September 2008 at Blackfriars Crown Court, he was convicted of failing to surrender to custody, for which he was sentenced to 7 days' imprisonment;
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vi. On 6 th October 2008 at Highbury Corner Magistrates' Court, he was convicted for destroying/damaging property and breach of a suspended sentence (imposed for the earlier assault), for which he was sentenced to 5 months' imprisonment. He was issued with a letter from the Secretary of State warning him that he was liable to deportation as a consequence of having offended, but indicating that deportation action was not being pursued at that time.
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vii. Despite that warning, between June 2010 and July 2010 he accumulated another three convictions, the last of which was on 30 th July 2010;
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viii. On 20 May 2011 he was cautioned for affray;
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ix. On 22 April 2013 at Wood Green Crown Court he pleaded guilty to what the sentencing judge described as an identical offence of affray. He was sentenced to 9 months' imprisonment and made the subject of a restraining order for a period of 3 years.
Section 56A of the UK Borders Act 2007 exempts certain immigration and nationality decisions from the scope of section 4 of the Rehabilitation of Offenders Act 1974. In practical terms, this means that the concept of a conviction becoming spent does not apply to decisions taken under the Immigration Act or the Immigration Rules relating to the ability of a foreign national to remain in the UK.
Given the length and nature of Mr Chege's offending history, Mr Mackenzie realistically did not dispute that the Secretary of State was entitled to take the view at the time of her decision to deport him that he was a persistent offender. His submission rested on the premise that, since Mr Chege had committed no further offences in the period since he was released on bail from immigration detention in June 2013 after serving the custodial period of his latest sentence, he could no longer be characterised as a persistent offender.
Both Mr Mackenzie and Mr Malik, who appeared for the Secretary of State, accepted that the question whether the appellant “is a persistent offender” is a question of mixed fact and law and falls to be determined by the Tribunal as at the date of the hearing before it.
The meaning of the expression “is a persistent offender” in s.117D of the Nationality, Immigration and Asylum Act 2002 is a matter of some importance on which there is no settled authority or guidance. That is the reason why permission to appeal was granted. Before turning to the specific facts of Mr Chege's case, therefore, it is necessary to consider that phrase in the specific context in which it arises, bearing in mind the policy expressed by Parliament in part 5A of the 2002 Act and reflected in the Immigration Rules (as amended).
Section 3(5)(a) of the Immigration Act 1971 provides that a person who is not a British Citizen is liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. The person concerned need not have committed any criminal offence, let alone a criminal offence attracting a prison sentence of any length. The decision that a person is liable to deportation involves the exercise of a discretion, and is not appealable: see Bah (EO (Turkey) – liability to deport) [2012] UKUT 00196 (IAC) at [32].
If he is liable to deportation, the next question for the Secretary of State is whether he should be deported. That decision is made under s.5(1) of the Immigration Act 1971 and it is also discretionary. At that stage, it will become necessary for the Secretary of State to consider whether a human rights or protection claim precludes his deportation. If it does, no deportation order can be made. That is reflected in paragraph 397 of the Immigration Rules.
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