Secretary of State for the Home Department v Bossade; Bossade (ss 117A-D - Interrelationship with Rules)
| Jurisdiction | UK Non-devolved |
| Judge | Storey,Dawson,Dawson UTJ,Storey UTJ |
| Judgment Date | 16 July 2015 |
| Neutral Citation | [2015] UKUT 415 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 16 July 2015 |
[2015] UKUT 415 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
UPPER TRIBUNAL JUDGE Dawson
For the Appellant: Mr I Jarvis, Home Office Presenting Officer
For the Respondent: Mr K Mak, Solicitor, instructed by MKM Solicitors
Bossade (ss.117A-D-interrelationship with Rules)
1. For courts and tribunals, the coming into force of Part 5A of the Nationality, Immigration and Asylum Act 2002 (ss.117A-D) has not altered the need for a two-stage approach to Article 8 claims.
2. Ordinarily a court or tribunal will, as a first stage, consider an appellant's Article 8 claim by reference to the Immigration Rules that set out substantive conditions, without any direct reference to Part 5A considerations. Such considerations have no direct application to rules of this kind. Part 5A considerations only have direct application at the second stage of the Article 8 analysis. This method of approach does not amount to according priority to the Rules over primary legislation but rather of recognising their different functions.
3. In the context of foreign criminal cases (because the provisions found in Part 13 of the Rules are a complete code encompassing both stages of the Article 8 assessment), this means that Part 5A considerations have no direct role at the first stage when a court or tribunal is deciding whether an applicant meets the substantive conditions of paragraphs 399 or 399A of the Immigration Rules. They only have direct application at the second-stage, viz. assessment under the rules that involve a proportionality assessment: viz. paragraph 398 and (in revocation cases) paragraph 390A. In cases other than those concerning deportation of foreign criminals, where the Rules are not a complete code, it may still be necessary to conduct this second stage outside the Rules: see Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636 at [39].
4. Whilst Part 5A considerations may have indirect application to the Immigration Rules, including those setting out substantive conditions such as paragraphs 399 and 339A, this is limited to their role as statements of principles that can be used where appropriate to inform the meaning of key terms set out in such paragraphs.
5. New paragraph 399A of the Immigration Rules remains similar to the old in considering the foreign criminal deportee's situation both in the UK and in the country of return. However, so far as concerns focus on a person's situation in the UK, time in the UK is no longer relevant as such except in the context of lawful residence (399A(a)) and paragraph 399A(b) introduces new criteria that relate to social and cultural integration in the UK. So far as concerns focus on the situation in the country of return, paragraph 399A no longer looks at ‘ties’ per se but at the more inclusive notion of integration and obstacles thereto. By requiring focus on integration both in relation to a person's circumstances in the UK as well as in the country of return, the new Rules achieve a much more holistic assessment of an appellant's circumstances. Thereby they bring themselves closer to Strasbourg jurisprudence on Article 8 in expulsion cases which has always seen consideration of both dimensions as requiring a wide-ranging assessment: see e.g. Jeunesse v Netherlands (GC) App.No. 12738/10, 31 October 2014, paragraphs 106-109.
The respondent (hereinafter “the claimant”) is a national of the Democratic Republic of Congo (DRC) aged 29. On 23 July 2013 the appellant (hereinafter “the SSHD”) decided to make a deportation order against him on the ground that he was a foreign criminal sentenced to a period of imprisonment of at least twelve months.
In a determination of 24 June 2014, a First-tier Tribunal (FtT) panel comprising Judge Abebrese and N.L.M. Richardson allowed the claimant's appeal under Articles 3 and 8 of the ECHR and paragraph 276ADE of the Immigration Rules. On 28 January 2015 we set aside the decision of the First-tier Tribunal for error of law (the principal errors found were inadequate treatment of Article 3; failure to recognise that the claimant was shut out from paragraph 276ADE of the Immigration Rules by suitability requirements; and failure to assess objectively the issue of ties in the country to which he would be deported). In our decision we observed that whilst ideally the further hearing would not take place before the Upper Tribunal had issued new country guidance on the Democratic Republic of Congo, we might find it necessary, if that were delayed, to proceed with the case nonetheless. We made this observation in light of the fact that the Upper Tribunal had taken steps to convene a new country guidance case to address the issue of whether there was a risk on return to criminal deportees, which Phillips J had had to engage with P (DRC) R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3879 (Admin).
At the hearing before us we explained to the parties that rather than adjourn to await the pending country guidance case, which was then imminent, we would hear their submissions and then give them a specified period in which to make written submissions dealing with the implications for our decision of the new country guidance once reported. Following the reporting of that decision, BM and Others (returnees - criminal and non-criminal) Democratic Republic of Congo (CG) [2015] UKUT 293 (IAC), on 2 June 2015, we duly received submissions. It is convenient to say at this stage that in light of the BM decision we are entirely satisfied that the claimant would not face risk on return to the DRC by virtue of the fact that he is a foreign national offender (FNO). He has never asserted that he falls into any of the risk categories identified in BM or other country guidance cases on the DRC. Mr Mak's further written submission that we should find that the claimant would face a real risk of being detained for more than a day because he had been away from the DRC so long was unsupported by any evidence and can be rejected as purely speculative. Our conclusion is that his case cannot succeed on asylum-related grounds; it hinges entirely on Article 8 ECHR.
The claimant who was born in 1986 came to the UK when aged 4. He was granted indefinite leave to remain (ILR) in 1998. He began committing offences from 2002, with a history of convictions in 2002, 2004, 2005, 2006, 2008, 2009, 2010 and 2011, culminating in a conviction at Croydon Crown Court for robbery and related offences for which he received a sentence of 42 months' imprisonment. On 2 August 2006 the claimant was issued with a “warning letter” about his criminal behaviour (whilst imprisoned in HMP Glen Parva).
At the hearing before the FtT the claimant gave evidence as did his mother. The claimant stated that he had two brothers born in the UK. They had different fathers. The claimant had a difficult relationship with his stepfather. He entered a life of crime which spiralled and eventually he was sentenced to a term of imprisonment. In his statement of May 2014 he said his most recent spell in prison and the deportation decision had made him realise he had to change. He now accepted full responsibility for his crimes and his behaviour. He had learnt and developed the right skills to equip himself better for life outside. He had no memory of life in the DRC and had always considered himself British. He had never met his own father. He had never been outside the UK. He did not speak Lingala or French. In the DRC he would have no friends, family, home or knowledge of the language or culture. He was not aware he had uncles in the DRC.
The FtT also heard from the claimant's mother. She explained that when he was a teenager he refused to listen to instructions or be disciplined. She believed it was possible for her son to have changed.
Before the FtT there was also an OASys Report indicating that there was still an element of risk in respect of the claimant and that his licence was due to expire in October 2015. The claimant had had a number of opportunities to stop re-offending which he had not taken advantage of.
Shortly after we set aside the FtT decision, the parties were sent directions putting both on notice that it was their responsibility to file any documentary evidence upon which reliance was placed. No further evidence was produced in response to that direction nor was there any application for the claimant or any other witness to give oral evidence. In such circumstances we indicated to the parties that the hearing before us would be confined to submissions.
At the outset both parties said that we should decide the claimant's appeal, not under the version of the Immigration Rules in force at the date of decision but as at the date before us. That meant looking at the Rules as they had been amended on 28 July 2014. Both parties also reminded us of the need to apply Part 5A of the 2002 Act, inserted by s.19 of the Immigration Act 2014. Before going further, it is convenient to set out in full paragraphs 398 and 399A of the Rules (as amended on 28 July 2014) and Part 5A of the Act:
Paragraphs 398 and 399A provide:
Headed “Article 8 of the ECHR: Public Interest Considerations”, Part 5A provides:
117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts-
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard-
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