Remi Akinyemi v The Secretary of State for the Home Department (No 2)
| Jurisdiction | England & Wales |
| Judge | Sir Ernest Ryder,Lady Justice Nicola Davies,Lord Justice Moylan |
| Judgment Date | 04 December 2019 |
| Neutral Citation | [2019] EWCA Civ 2098 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2018/2912 |
| Date | 04 December 2019 |
[2019] EWCA Civ 2098
THE SENIOR PRESIDENT OF TRIBUNALS
Lord Justice Moylan
and
Lady Justice Nicola Davies
Case No: C5/2018/2912
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (Immigration and Asylum Chamber)
Mr. Justice Goss & Upper Tribunal Judge Kopieczek
DA005742014
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Richard Drabble QC and Mr. Ranjiv Khubber (instructed by Turpin and Millar LLP) for the Appellant
Mr. William Irwin (instructed by Government Legal Department) for the Respondent
Hearing date: Thursday 17 October 2019
Approved Judgment
Sir Ernest Ryder, Senior President:
This is an appeal by Mr Remi Akinyemi (‘the appellant’) against the determination of Goss J and Judge Kopieczek sitting in the Upper Tribunal Immigration and Asylum Chamber (‘UT’) dismissing the appellant's appeal against the decision of the Secretary of State to make a deportation order against him. The determination of the UT followed a re-hearing ordered by the Court of Appeal as a consequence of an earlier successful appeal which is now reported as Akinyemi v Secretary of State for the Home Department [2017] EWCA Civ 236, [2017]; 1 WLR 3118.
This new appeal turns on two grounds for which permission was given by Simon LJ on 27 February 2019:
a. Firstly, whether the UT misdirected itself with respect to the public interest in the deportation of foreign criminals; and
b. Secondly, whether the UT misdirected itself as to the establishment of very compelling circumstances needed to overcome a deportation order.
At the conclusion of the hearing the appeal was allowed and the outstanding issues were remitted to be heard by a new tribunal with a different constitution. These are my reasons.
Factual Background
The appellant was born in the UK on 21 June 1983. He has never left this country. His parents were both Nigerian nationals who first came to the UK as students. His father was granted indefinite leave to remain in October 1987 and became a British citizen in October 2004. His mother died in 1999 when he was a teenager and was in the UK lawfully, though her precise legal status is not known.
The appellant is the youngest of three siblings. His elder brother was born in Nigeria but became naturalised in the UK in 2000. His other brother was born in the UK, and due to the operative legislation at that time, was a British citizen from birth. Even though born in the UK, the Appellant did not acquire British nationality as an automatic result of being born here due to legislative changes that occurred just before his birth. Despite for many years being entitled to British citizenship, the appellant never took steps to acquire it. He has not become a British national and remains a Nigerian national by virtue of his birth.
The appellant's offending history
The appellant has committed a large number of offences since his teenage years. He has in all over twenty convictions for 42 offences. The following are of most significance:
a. On 5 July 2007 he was convicted of causing death by dangerous driving for which he was sentenced to four years imprisonment. The circumstances were that he suffered an epileptic fit while driving and lost control of his car and killed a cyclist. He knew that he suffered from epilepsy, and he was also driving while disqualified.
b. On 31 January 2013 he was convicted of four counts of possession of heroin with intent to supply, one count of possession of diamorphine with intent to supply and one count of driving while disqualified. He was sentenced to a total of three and a half years' imprisonment.
Other convictions for which he has been sentenced include:
a. Two convictions in 2000 for possession of a knife;
b. A conviction in 2001 for conspiracy to rob at knifepoint;
c. Five convictions in 2005 and 2006 for driving while disqualified and while uninsured, for which the sentences included short periods of imprisonment;
d. A conviction in 2010 for possession of class A and class B drugs, for which he was fined; and
e. A conviction in 2011 for using a vehicle while uninsured, taking a vehicle without consent and driving while disqualified, for which he was sentenced to four weeks' imprisonment.
Most recently, the appellant has been convicted of both driving and drug related offences. He was convicted on 18 March 2016 for driving while disqualified and sentenced to 20 weeks' imprisonment suspended for two years. On 15 June 2017, he was convicted of another offence of driving a vehicle while uninsured and fined for committing a further offence during the operational period of the suspended sentence. On 31 August 2017 he was ordered to serve the balance of the suspended sentence having committed further drug related offences.
Personal History
The Appellant has struggled with mental health problems and depression from a young age. The death of his mother when he was aged 14, as well as a false accusation of rape that was made against him, had a significant impact upon him. He takes anti-depressant and anti-epilepsy medication, and undertook a course of counselling in May and June 2019, which it is said has helped him.
The appellant has not offended since January 2017, something which he attributes to the relationship that he has with his partner, with whom he has been living for over 2 years. The relationship is regarded as genuine and long term. He has also in recent times become closer to his father, with whom he has contact either face to face or by telephone every day. In oral evidence given to the UT, the appellant spoke of opening up more than he used to and trying to build his confidence. His father spoke of the appellant as ‘a kind boy’, and that nothing about the appellant's behaviour now gave him cause for concern.
The appellant's partner described her relationship with the appellant as being really good. She said they had been together for nearly three years, and that in recent times he has sought medical help, was coming to terms with his illness, and had finally grown into the man he wanted to be.
The appellant has a significant history of suicide attempts. That history was set out by Ms Lisa Davies, a consultant forensic psychologist, in a report dated 2 January 2018. While at HM YOI Feltham the appellant began self-harming and was placed on suicide watch. He attempted suicide while on bail, and on a separate occasion made a suicide attempt after release from prison. Ms Davies' report indicates a severe level of current depressive symptomatology and a moderate risk of suicidal ideation. She has concerns regarding the impact that removal to Nigeria and the absence of familial support would have upon his mental health. While she considered that the appellant was at a moderate risk of committing suicide at present, her opinion was that this would increase to a significant risk should he be deported to Nigeria.
Procedural History
Following the appellant's conviction in 2011, the Home Office wrote to inform him that consideration had been given to making a deportation order in his case. He was told that a decision had been taken not to do so at that stage but that if he committed further offences he would be at risk of such an order being made.
On 25 March 2014 the Secretary of State made the decision to make a deportation order against him pursuant to section 32(5) of the UK Borders Act 2007, following his conviction on four counts of the supply of a class A controlled drug. The letter explaining the decision to deport explicitly relied on the earlier conviction of causing death by dangerous driving in July 2007 and stated that the only reason the Secretary of State had not taken action at that point was that the conviction had not been notified to the Home Office because “it was believed that he was a British citizen”.
On 02 April 2014 the appellant gave notice of his appeal to the First-tier Tribunal against the decision on the basis that his deportation would be in breach of his rights under article 8 of the European Convention on Human Rights. By a determination of the First-tier Tribunal promulgated on 29 August 2014, Judge Thanki allowed his appeal.
The Secretary of State appealed to the UT. By an order dated 24 November 2014 Judge Kekic set aside the decision of the First-tier Tribunal and directed a hearing with a view to remaking the decision. That hearing took place on 19 January 2015. By a determination promulgated on 13 February 2015 Judge Kekic dismissed the appeal against the deportation order.
The appellant appealed to the Court of Appeal and was granted permission to do so by Underhill LJ on 24 July 2015. The Court of Appeal allowed the appeal against the UT's decision on 4 April 2017 and remitted the case back to the UT for a de novo hearing.
The Applicable Legislation
Under section 32(5) of the UK Borders Act 2007 (BA 2007), the Secretary of State is obliged to make a deportation order in respect of foreign criminals, subject to the exceptions at section 33. Section 32(4) provides that such deportation is conducive to the public good for the purposes of section 3(5)(a) of the Immigration Act 1971 ( IA 1971).
The appellant seeks to rely on the exception at section 33(2)(a) BA 2007, where deportation would breach a person's rights under the European Convention of Human Rights (‘ECHR’). At issue is article 8, the right to respect for private and family life, home and correspondence. Where a court or tribunal determines whether a decision made under the Immigration Acts breaches a person's rights under article 8, Part 5A (sections 117A – 117D) of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002) apply.
Section 117A NIAA 2002 provides, as relevant, that:
(2) In considering the...
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