CI (Nigeria) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Leggatt |
| Judgment Date | 22 November 2019 |
| Neutral Citation | [2019] EWCA Civ 2027 |
| Date | 22 November 2019 |
| Docket Number | Case No: C5/2018/2409 |
| Court | Court of Appeal (Civil Division) |
[2019] EWCA Civ 2027
THE SENIOR PRESIDENT OF TRIBUNALS
Lord Justice Hickinbottom
and
Lord Justice Leggatt
Case No: C5/2018/2409
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Storey
DA/01549/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Laura Dubinsky and Rowena Moffatt (instructed by Duncan Lewis) for the Appellant
William Irwin (instructed by the Government Legal Department) for the Respondent
Hearing date: 9 October 2019
Approved Judgment
Introduction
The appellant (“CI”) is a Nigerian national who came to the United Kingdom with his mother when he was one year old and has lived here ever since. He is now aged 27. He has no family or other ties with Nigeria. CI was severely abused by his mother as a child and was finally taken into care at the age of 15. He subsequently committed a series of criminal offences and in 2013 (aged 20) was sentenced to various periods of detention in a Young Offenders' Institution – two of which exceeded 12 months. This led to a decision by the Secretary of State in July 2014 to make a deportation order against him. CI has challenged that decision on the ground that deporting him from the UK would breach his right to respect for his private life protected by article 8 of the European Convention on Human Rights. By a long and somewhat circuitous route that challenge has now reached this court on an appeal from a decision of the Upper Tribunal (Immigration and Asylum Chamber) promulgated on 1 August 2018, which dismissed CI's appeal from the Secretary of State's decision.
Before coming to the issues raised on this appeal, I will outline more of CI's immigration and personal history and identify the applicable legal framework.
Immigration history
CI was born in Nigeria on 2 October 1992. He entered the UK on 29 January 1994, aged 15 months, with his mother and two sisters on a visitor's visa valid for six months. CI's mother remained in the UK with her children after the visa expired. On 2 August 1994 she claimed asylum. That claim was refused on 2 December 1994. On 30 March 1995 the family was served with notice of a deportation order requiring them to leave the UK but no steps were ever taken to enforce the order.
The asylum claim made by CI's mother was reconsidered on 4 April 1996 and was again refused. An appeal against that decision was dismissed on 7 July 1997 and any further rights of appeal were exhausted on 24 July 1997.
On 11 June 2002 CI's mother applied for indefinite leave to remain in the UK relying on Deportation Policy 5/96 (“DP5/96”), which stated criteria to be applied when considering whether enforcement action should proceed or be initiated against parents of children with long residence in the UK. A “policy modification statement” issued in 1999, while emphasising that each case must be considered on its individual merits, said that the “general presumption” was that enforcement action would not normally be taken in cases where a child born here or who had come to the UK at an early age had been living continuously in the UK for seven or more years. The statement identified certain factors as relevant in deciding whether enforcement action should nevertheless proceed in such a case.
In NF (Ghana) v Secretary of State for the Home Department [2008] EWCA Civ 906, paras 22–39, the Court of Appeal analysed the relevant policy documents and concluded that tribunals considering the effect of DP5/96, as modified in 1999, should start from the position that it was only in exceptional cases that indefinite leave to remain would not be given to a child who had been continuously resident in the UK for seven years; but the tribunal should go on to consider whether any of the factors identified in the policy modification statement made the case an exceptional one. It has not been suggested that any of those factors would have made CI's case an exceptional one.
The application made by CI's mother relying on this policy had still not been dealt with, however, when on 3 November 2004 she made another, separate application for indefinite leave to remain, which was then given priority over the first application. The second application was made under the “Family ILR Exercise”. This was a concession announced on 24 October 2003 to allow families with one or more children who had made unsuccessful applications for asylum before 2 October 2000 to stay in the UK. The policy statement said that all dependants of the applicant who met the basic criteria for the concession should be granted indefinite leave to remain. Certain categories of family were excluded from the scope of the concession, but it has not been suggested that CI's family fell within any of the exclusions. CI's mother, however, failed to respond to a questionnaire, which led to her being declared ineligible for the concession on 29 March 2006. Subsequently, on 25 June 2007, solicitors acting for CI's mother returned the questionnaire. Further delay then occurred before the Home Office dealt with the application. Eventually, on 12 October 2010 all the members of the family including CI were granted indefinite leave to remain in the UK.
CI's personal history and convictions
There is substantial evidence, including detailed social services records, that CI was subjected as a child to sustained physical, verbal and emotional abuse by his mother. As well as suffering physical chastisement, CI and his siblings were frequently denied food and were left locked in the house for long periods. The home conditions were very dirty and CI was often denied access to the bathroom. He and his siblings had very few possessions. CI's mother was a drug user and she would send CI to buy drugs for her or to beg for money from neighbours. Although the local authority was aware of many of the problems from an early stage, it was only in October 2007 that CI was eventually taken into care under a police protection order after his mother had refused him entry to the family home. He was placed in foster care and later moved into semi-independent accommodation with four or five boys of his age. Despite frequent absenteeism from school, CI gained six GCSEs and two AS levels.
In 2009 and 2010, while he was living in the semi-independent accommodation, CI accrued a number of criminal convictions for miscellaneous offences. There seems then to have been a break in his offending. In 2012 he began studying for a Foundation Degree in IT JavaScript and Programming at Birkbeck, University of London. He also had a sales job in Brighton. However, on 24 April 2013 CI was convicted at Inner London Crown Court after pleading guilty to four offences, being two thefts from motor vehicles, an attempted robbery and theft from a person. For these offences he was sentenced to a total of 28 months' detention (comprising consecutive sentences of six, eight and 14 months, with a concurrent sentence of eight months) in a Young Offenders' Institution. On 9 August 2013 CI was convicted at South Western Magistrates' Court of a further offence of robbery, for which he was sentenced to 15 months' detention to run consecutively to his earlier sentence.
In November 2015 CI was convicted of an assault committed in prison and was sentenced to a further seven months' imprisonment. There is evidence to suggest that when he committed that assault CI may have been in a psychotic state, and immediately afterwards he was admitted to Norbury Psychiatric Intensive Care and Admissions Ward at River House Medium Secure Unit from HMP Wandsworth under the Mental Health Act on the basis that he was experiencing “complex persecutory delusions”.
The custodial period of CI's sentence ended in February 2016 when he was placed on licence, but he was then kept in detention under immigration powers. In February 2017 he was released on immigration bail. When assessed by a clinical psychologist in October 2017, CI was diagnosed as suffering from a major depressive disorder with some significant post-traumatic traits. When he gave evidence in the Upper Tribunal in May 2018, CI was not employed but was attempting to train as an online stock trader. In his evidence he described his life as being “on hold” pending the outcome of these proceedings.
CI has a son who was born in December 2017 and who is a British citizen. However, CI and the child's mother separated before their son was born and CI said in evidence that he has refrained from developing a relationship with his son for fear of the pain of separation if he is deported from the UK.
Deportation proceedings
On 10 July 2014 the Secretary of State decided to make a deportation order against CI under section 32(5) of the UK Borders Act 2007 on the basis that CI had been convicted of a criminal offence for which he had been sentenced to a period of imprisonment of at least 12 months. CI appealed against the decision to the First-tier Tribunal (Immigration and Asylum Chamber), which allowed his appeal. However, its decision was reversed by the Upper Tribunal (Immigration and Asylum Chamber) on 8 October 2015. CI was granted permission to appeal to the Court of Appeal, which on 28 June 2017 set aside the Upper Tribunal's decision and remitted the case to the Upper Tribunal for a re-hearing. That re-hearing took place on 31 May 2018 before Upper Tribunal Judge Storey, who in a decision promulgated on 1 August 2018 dismissed CI's appeal against the decision to make a deportation order. It is from that decision of the Upper Tribunal that CI has again obtained permission to appeal to this court.
The legal framework
When a person who is not a British citizen is convicted in the UK of an offence for which...
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