Chege (Section 117D - Article 8 - Approach)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Nicol,Coker,Coker UTJ,Nicol J |
| Judgment Date | 05 March 2015 |
| Neutral Citation | [2015] UKUT 165 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 05 March 2015 |
[2015] UKUT 165 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Nicol
UPPER TRIBUNAL JUDGE Coker
For the Appellant: Ms L Kenny Senior Home Office Presenting Officer
For the Respondent: Mr S Gentili of Islington Law Centre
Chege (section 117D — Article 8 — approach)
The correct approach, where an appeal on human rights grounds has been brought in seeking to resist deportation, is to consider:
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i. is the appellant a foreign criminal as defined by s117D (2) (a), (b) or (c);
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ii. if so, does he fall within paragraph 399 or 399A of the Immigration Rules;
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iii. if not are there very compelling circumstances over and beyond those falling within 399 and 399A relied upon, such identification to be informed by the seriousness of the criminality and taking into account the factors set out in s117B.
Compelling as an adjective has the meaning of having a powerful and irresistible effect; convincing.
The purpose of paragraph 398 is to recognize circumstances that are sufficiently compelling to outweigh the public interest in deportation but do not fall within paragraphs 399 and 399A.
The task of the judge is to assess the competing interests and to determine whether an interference with a person's right to respect for private and family life is justified under Article 8(2) or whether the public interest arguments should prevail notwithstanding the engagement of Article 8.
It follows from this that if an appeal does not succeed on human rights grounds, paragraph 397 provides the respondent with a residual discretion to grant leave to remain in exceptional circumstances where an appellant cannot succeed by invoking rights protected by Article 8 of the ECHR.
The Secretary of State appeals, with permission, against the decision of First-tier Tribunal Judge Morgan promulgated on 22 nd October 2014 following a hearing on 9 th October 2014 to allow the appeal of Mr Chege against a decision to deport him made pursuant to s3 (5) (a) Immigration Act 1971.
Permission was granted on the grounds that it was arguable that the First-tier Tribunal had erred in law: “The [sic] overall the findings reached by the IJ were not supported by the evidence and he found compelling compassionate circumstances where none existed, drawing inadequate conclusions about the protection of the public and deterrence from further commission of crime.”
Mr Chege, a Kenyan citizen, entered the UK aged 26 on 13 th January 1995 and claimed asylum. His application for asylum was refused but he was granted exceptional leave to remain until May 2004. In July 2005 he was granted indefinite leave to remain. In 2008 he was convicted of assault and sentenced to 5 months imprisonment and issued with a letter from the Secretary of State warning him that he was liable to deportation as a consequence of having offended but that deportation action was not being pursued at that time. In April 2013 he was convicted of affray and sentenced to 9 months imprisonment. Deportation action was initiated and a decision to make a deportation order was taken on 13 th November 2013 and was served on 15 th November 2013. The First-tier Tribunal allowed the appeal “under the Immigration Rules and on human rights grounds”.
In addition to these two offences, Mr Chege has committed a significant number of other offences: 2 offences against the person; 2 offences against property; 1 theft and kindred offence; 2 public disorder offences; 6 offences relating to police/courts/prisons; 2 drug offences and 8 miscellaneous offences (mainly driving/insurance). His first conviction was on 7 th October 1997 and the last conviction immediately prior to the index offence was on 30 th July 2010 and he was given a caution on 29 th June 2011 for a further offence of affray.
Mr Chege was diagnosed HIV positive in 1999. According to the lead GP at Pentonville prison his medical conditions at that time (June 2013) were asthma, HIV infection and anxiety and he recorded that all the conditions were well controlled; he had good prognosis for all conditions “assuming adherence with the prescribed medications”. Reports from Dr Maryam Shahmanesh (Senior Clinical Lecturer/Honorary Consultant in sexual health and HIV medicine) stated that Mr Chege has had extremely erratic anti-retro viral use due to “complex psychosocial situation, homelessness and imprisonment”. She stated that he would require lifelong treatment and “it is of the utmost importance that he is able to access second line treatment and have the psychosocial stability to support his adherence to his current regimen [sic] for as long as possible”. She expressed the opinion that deportation to Kenya would jeopardise his current fragile recovery and that isolation and dramatic change could trigger mental deterioration and erratic engagement with HIV care. In a letter dated 7 th October 2014 she stated that she was already seeing evidence that Mr Chege was withdrawing and disengaging and that although he had not ceased adhering to his therapy there was such a risk.
Lisa Davies (HCPC Registered and BPS Chartered Forensic Psychologist) expressed the opinion in a report dated 19 th May 2014 that Mr Chege would benefit from “urgent psychiatric assessment with specific focus on suicide risk, current mental state and the need for treatment” [sic]. Professor Abou-Saleh (Professor of Psychiatry and Honorary Consultant Psychiatrist) in a report dated 8 th October 2014 referred to Mr Chege taking an overdose of his prescribed medication on 26 th April 2013 and being discovered by a prison officer. He referred to Mr Chege as saying he tried to hang himself on 3 rd May 2013. There is no record of this in the prison medical records. Professor Abou-Saleh stated
“Mr Chege is currently suffering from mental health problems of depression and cocaine issue, conditions that are aggravated by the threat of deportation and are often associated with demoralisation and hopelessness. I believe he is likely to engage with treatment for his psychiatric conditions if the threat of deportation is removed: Mr Chege had previously engaged with treatment for his psychiatric treatment, which he received from his GP and from HMP medical services.
Importantly he has attempted suicide in the past and was assessed at high suicide risk when assessed by Ms Lisa Davies in May 2014. In my opinion there is a high risk of suicide given his current depressive disorders and ongoing drug misuse and the threat of deportation. He is well supported by his mother with whom he lives. This protective factor has contributed to decreased risk of suicide.”
Mr Chege was married and has a son born in the UK who is a British Citizen. That marriage broke down many years ago and he has had no contact with his son for many years. There are no contact proceedings. His mother and sister are in the UK. His mother gave evidence at the First-tier Tribunal hearing but his sister did not. From emails it appears that his sister may be in touch with siblings in Kenya but there was little evidence about them other than an email from the sister saying they wanted nothing to do with Mr Chege.
Although Mr Chege appealed the decision to deport him on Article 3 and 8 grounds, it was accepted by Mr Gentili before us that Mr Chege did not meet the threshold of Article 3.
The First-tier Tribunal found:
“[16] The key factors identified by Mr Gentili: were the length of the appellant's lawful residence in the United Kingdom, nearly 20 years, and the fact that he has spent well over half of his adult life in the United Kingdom. The fact that all of his close family members are in the United Kingdom and in particular he has been living with his mother who has provided the appellant with significant support. That the appellant has a son in the United Kingdom, now 15 years old, with whom he is still seeking contact. That the appellant no longer has significant ties to Kenya the country of his birth which he has not been back to since coming to the United Kingdom. The appellant's HIV status, diagnosed in the UK in 1999 and the serious consequences to the appellant of the withdrawal of the medication and medical support available in the United Kingdom should the appellant be returned to Kenya. All of these factors are to be weighed in the balance but cumulatively I find that they do not outweigh the public interest in deportation. The only factor in my judgment, which is capable of doing this, is the suicide risk identified within the medical evidence….
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[19]…I … find there is a significantly increased risk of suicide were the appellant to be informed that he was to be deported to Kenya, arising at all stages of the removal process and following removal. I find these risks are best evidenced in the medical evidence outlined above and the appellant's previous suicide attempts while in prison in the United Kingdom. It is these risks and these risks alone which enable, justify and necessitate a finding that there are exceptional circumstances in this appeal such as to outweigh the significant public interest in deportation. As I have indicated Mr Whitehead, who represented the respondent, did not seek to persuade me that the threshold in exceptional circumstances was different to that in very compelling circumstances but I find for the sake of completeness that the suicide risk justifies a finding that there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
[20] I have had regard to Part 5A of section 19 of the Immigration Act 2014. I have given considerable weight to the public interest question. Section 19 does not assist the appellant in demonstrating that his removal would be...
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