Green (Article 8 – new rules) Jamaica
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake,Phillips |
| Judgment Date | 15 April 2013 |
| Neutral Citation | [2013] UKUT 254 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 15 April 2013 |
[2013] UKUT 254 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE PRESIDENT, THE HON Mr Justice Blake
DEPUTY UPPER TRIBUNAL JUDGE Phillips
For the Appellant: Mr K Hibbs, Home Office Presenting Officer
For the Respondent: Mr C McCarthy, Counsel instructed by Owen Stevens Solicitors
Green (Article 8 — new rules)
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1. In Nagre v SSHD [2013] EWHC 720 (Admin) the Administrative Court approved the guidance of the Upper Tribunal in Izuazu [2013] UKUT 45 (IAC) in turn endorsing the two stage approach recommended by the Upper Tribunal in MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC). Sales J added the proviso that it would not always be necessary to move on to the second stage and consider Article 8 proportionality apart from the provisions of the Immigration Rules. Where the rules and the learning on Article 8 were in harmony the answer given by the rules might render further inquiry unnecessary, unless there were exceptional circumstances. In that case the difference between the rules and the Strasbourg principles was marginal.
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2. It follows from that case, and the decisions of the UT in Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 00060 (IAC) that judges hearing appeals against decisions made after 9 July 2012 should consider how the Immigration Rules would apply, and make any relevant findings in that context before considering the wider application of Article 8 and the jurisprudence of the Upper Tribunal, and the higher courts, either to decide whether there are exceptional factors not contemplated by the Rules or that the decision is an unlawful one and disproportionate to the legitimate aim. Pending any further guidance from the Court of Appeal, judges of both chambers should apply the principles set out in Izuazu.
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3. Paragraph 398 of the Immigration Rules makes no reference to persons who commit crimes as juveniles. By contrast the decision of the Grand Chamber in Maslov v Austria [2008] ECHR 546 is clear that “when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult”.
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4. As the Upper Tribunal has explained in Izuazu and Ogundimu, where the Immigration Rules do not reflect the established principles under human rights law it is the law as laid down in primary legislation that must be followed.
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5. Adding to what the Tribunal said in Masih (deportation – public interest – basic principles) Paksitan [2012] UKUT 00046 (IAC), where the course of conduct relied on in the deportation decision includes conduct that has not resulted in a criminal charge or conviction, the Tribunal will need to take that conduct into account despite the absence of sentencing remarks (see Bah (EO (Turkey) – liability to deport) [2012] UKUT 00196 (IAC)).
This is the Secretary of State's appeal against a decision of a panel of the First-tier Tribunal (Judge Britton and Dr T Okitipi) dated 17 October 2012. In that decision the panel allowed the respondent's appeal against a decision on 22 August 2012 to make a deportation order against him. We shall refer to the respondent as the claimant, although he was the appellant in the proceedings below.
The claimant is a citizen of Jamaica born on 20 June 1994. He arrived in the United Kingdom as a visitor on 11 August 2001 when he was 7 years old and he was eventually granted indefinite leave to remain on 5 March 2007 as the dependent of his maternal grandmother who had been granted leave to remain in the United Kingdom in September 2003. The claimant's application for an extension of stay was refused on the 17 October 2003 and was allowed following an appeal to the Asylum and Immigration Tribunal decided in his favour on 8 January 2007.
On the 26 January 2012, following his pleas of guilty, the claimant was sentenced by HHJ Hillen at the Blackfriars Crown Court to a detention and training order of two years duration for seven offences consisting of four occasions between 2 April 2011 and 2 June 2011 when he was involved as a runner in supplying heroin and crack cocaine. The term of his detention order was subsequently reduced to 18 months. He was aged 16 when he committed these offences and 17 1/2 when he was sentenced by the judge.
This was not his first appearance before a criminal court. He had been sentenced on two occasions in 2008 for offences of possession of a bladed instrument and theft; one occasion in 2009 for possession of a bladed instrument; and three occasions in 2010 for possession of an offensive weapon, theft, robbery, and attempted robbery and failing to comply with the requirements of a detention and training order. He made one appearance in 2011 for failing to comply with the requirements of a youth rehabilitation order. Only one of these previous appearances had resulted in a custodial sentence and that was a six month detention and training order in 2010.
As a result of these convictions, on the 18 August 2012 the Secretary of State decided to make a deportation order on conducive grounds. It was a significant factor in the Secretary of State's decision that the claimant was a persistent offender whose offending was strongly influenced by his membership of a criminal gang operating in North London. There was both before the judge at Blackfriars Crown Court and the panel of the First-tier Tribunal, intelligence information supplementing the criminal record indicating his conduct as a gang member. The Secretary of State's case was that the claimant's offending was persistent and becoming more serious; that his membership of a gang both posed a danger to the community and made it more likely that he would re- offend.
The decision to deport was made after 9 July 2012 when amendments to the Immigration Rules had come into force. The Secretary of State contended that those amendments properly applied the criteria of Article 8 to the different scenarios set out in those Rules and that it was only in exceptional circumstances that a person who could not comply with the criteria set by the Immigration Rules could succeed under Article 8. The decision letter contended that:
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i. The claimant was liable to deportation under paragraph 398 (c) of the Immigration Rules because he was a persistent offender;
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ii. The claimant fell outside the protection of paragraph 399A because although he had lived in the United Kingdom for 10 1/2 of his 17 1/2 years before his custodial sentence he could not meet the requirement to have “no ties (including social, cultural or family) with the country to which he would have to go if required to leave the United Kingdom.”
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iii. The reason why it was not accepted that he the claimant had no ties with Jamaica, was because he and his family came from there and would be familiar with the culture and his estranged father lived there with whom he could re-establish a relationship, despite very limited previous contact.
The claimant appealed to the First-tier Tribunal and contended that deportation would be a disproportionate interference with the family and private life he enjoyed in the United Kingdom; that he was only a foot soldier in the gang; had done well during his sentence and despite some adjudications for fighting had gold status and with the help of prison staff had taken training courses to prepare himself for lawful employment; he intended to avoid gang life and criminality on release.
After hearing evidence from the claimant, his grandmother and girlfriend the panel allowed his appeal finding that deportation was not proportionate. In its conclusions the panel directed itself in accordance with the UT decision of Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 00046 (IAC) setting out and applying the guidance of the Strasbourg Court in Maslov v Austria [2008] ECHR 546. The panel had careful regard to the judge's sentencing remarks, the claimant's age at the time of offending, the evidence of his progress in prison including his gold status and educational certificates. It noted that he had no readily available support in Jamaica. If he returned to gang membership or committed further offences he would be deported, but on the current information deportation would be disproportionate.
In her grounds of appeal to the Upper Tribunal the appellant asserts that the panel failed to consider “the Article 8 provisions of the Immigration Rules” and in so doing failed to have regard to the presumption to deport and failed to apply the correct test by considering what exceptional circumstances applied to prevent deportation.
The grounds further assert that although the panel said that it had taken into account the serious nature of the claimant's gang involvement and his previous convictions their conclusion shows that they cannot have done so. The findings do not reflect the evidence.
At the hearing before us Mr Hibbs, representing the appellant, made written and oral submissions. He contended that the panel did not give due attention to the Immigration Rules or grapple with the claimant's gang membership or risk of re-offending. This was glossed over with the panel giving the claimant the benefit of the doubt rather than making an assessment of the evidence that was before them. He further suggested that the panel failed to take into account the claimant's period of irregular stay and instead treated him as a settled migrant. The claimant's gang membership does not, he submitted, form an integral part of the panel's deliberation.
For the claimant Mr McCarthy put forward a written skeleton argument. He said that the intelligence evidence of gang...
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