Secretary of State for the Home Department v Alusine Kamara
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Moore-Bick |
| Judgment Date | 11 August 2016 |
| Neutral Citation | [2016] EWCA Civ 813 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2015/2475 |
| Date | 11 August 2016 |
[2016] EWCA Civ 813
Lord Justice Moore-Bick
and
Lord Justice Sales
Case No: C5/2015/2475
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
DA/01678/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. John-Paul Waite (instructed by Government Legal Department) for the Appellant
The Respondent attended in person and was not represented
Hearing dates: 26 th July 2016
Approved Judgment
This is an appeal by the Secretary of State in a case involving Mr Kamara, a national of Sierra Leone born on 29 September 1987, whom the Secretary of State wishes to deport to Sierra Leone as a foreign criminal.
Mr Kamara came to this country in 1993 as a young child, aged 6, with his sister, aged 8, to live with his adult half-sister who was in the UK with indefinite leave to remain. He was brought up here. On 30 August 1995 he and his sister were granted indefinite leave to remain as dependants of his half-sister. They lived with family members in the UK, and were for part of the time in foster care.
The Upper Tribunal found that he has no ties with Sierra Leone, having lost all contact with the country a long time ago. It rejected the Secretary of State's submission to the contrary, based on the evidence it heard. It found Mr Kamara to be a credible witness whose evidence about this should be accepted. It is common ground that Mr Kamara cannot speak any of the local languages in use in Sierra Leone.
The Upper Tribunal also found that Mr Kamara is fully integrated into society in the UK. He has, for the most part, been a diligent student here and is seeking to complete his studies and find employment. He had demonstrated remorse for his offending and his conduct while in prison had been exemplary. The Tribunal found that his deportation would involve an interference with his right to respect for his private life under Article 8 of the European Convention on Human Rights.
On 10 October 2011 Mr Kamara was sentenced to imprisonment for 3 years and 6 months for possession of class A drugs with intent to supply. This was a serious offence, which means that Mr Kamara qualifies as a "foreign criminal" for the purposes of the application of the UK Borders Act 2007 and section 117C of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014). The Secretary of State decided that he should be deported when released from prison.
Mr Kamara appealed to the First-tier Tribunal ("FTT"), maintaining that he was entitled to be granted leave to remain under the relevant provisions of the Immigration Rules. The FTT allowed his appeal, but its decision was set aside by the Upper Tribunal for error of law and the case was remitted for a fresh determination. The FTT again allowed his appeal, but again the Upper Tribunal set the decision aside for error of law. This time the Upper Tribunal decided to make a fresh decision itself.
Accordingly, the Upper Tribunal held a full hearing with evidence to decide itself whether Mr Kamara's appeal from the decision of the Secretary of State should be allowed. At the time of the hearing before the Upper Tribunal it was required to apply sections 117A-117D of the 2002 Act and the new Immigration Rules in respect of foreign criminals which came into effect in July 2014, in particular paragraph 399A.
The test in paragraph 399A corresponds with that in section 117C. Since Mr Kamara's sentence was for imprisonment of more than 12 months but less than 4 years, it is section 117C(3) which is applicable. Section 117C provides in relevant part as follows:
" 117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported. …"
The principal factual issue in dispute at the hearing before the Upper Tribunal was whether Mr Kamara had maintained links with his natural mother in Sierra Leone. Mr Kamara's evidence was that he had not. His father (who was of Lebanese nationality) had not married his natural mother, but had married another woman who became Mr Kamara's step-mother. Mr Kamara had never lived with his natural mother and was brought to the UK after his father died in 1992. His stepmother also relocated to the UK after this time. Mr Kamara explained evidence adduced by the Secretary of State which was said to show that he had continuing links with his natural mother in Sierra Leone as in fact referring to contact that he had continued to have with his stepmother while she was there. This account was corroborated by other evidence and the Upper Tribunal found that it was true. Mr Kamara's natural mother had disappeared in about 1994 and she could not be traced.
The Upper Tribunal therefore found, taking the evidence in the round, that Mr Kamara "has not had any contact with his natural mother in Sierra Leone and has no subsisting familial ties to that country" (para. [33]).
No complaint is made by the Secretary of State about the way in which the Upper Tribunal considered the various factors set out in section 117B and section 117C(1) and (2). In particular, the Upper Tribunal properly recognised the strong public interest in the deportation of those who commit serious crimes such as that committed by Mr Kamara. The critical issue which the Upper Tribunal had to determine under section 117C was whether Exception 1 applies in Mr Kamara's case, the test under paragraph 399A being the...
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