Tolga Binbuga v Secretary of State for the Home Department

Hearing date: 19 March 2019

Approved Judgment

Introduction

The Appellant, Mr Tolba Binbuga (“TB”), appeals against the decision of the Upper Tribunal (“UT”) of 17 February 2017 which remade the decision of the First Tier Tribunal (“FTT”) of 11 April 2016 and dismissed TB's appeal from the decision of the Respondent, the Secretary of State for the Home Department (“SSHD”), of 22 September 2015 which refused his human rights claim and maintained the decision to deport him.

The appeal concerns (i) whether TB is a “foreign criminal” as defined in s.117D(2) Nationality, Immigration and Asylum Act 2002 (“NIAA”); (ii) if so, whether Exception 1 in s.117C(4) NIAA applies and (iii) if not, whether the “very compelling circumstances” test is met.

Factual Background

TB is a Turkish citizen born on 4 April 1990.

TB entered the UK with his father, mother and siblings on 28 September 1999, when he was 9 years old. His family's application for asylum was refused but on 25 June 2004 they were all granted indefinite leave to remain (“ILR”).

On 17 January 2004, TB received a reprimand for shoplifting (13 years old).

On 27 July 2006, TB was convicted at Wood Green Crown Court of robbery, following a guilty plea. He was given a conditional discharge of 18 months (16 years old).

On 12 January 2007, the SSHD wrote to TB warning him that deportation may be pursued in the future if he came to adverse notice again.

On 9 July 2008, TB received a caution for possession of cannabis (18 years old).

On 27 March 2009, TB was convicted at Enfield Magistrates Court of causing criminal damage, fined and ordered to pay compensation and costs (18 years old).

On 17 March 2010, the rest of TB's family were granted British citizenship. TB did not make his own application.

On 23 August 2013, TB was convicted at Wood Green Crown Court of assault occasioning actual bodily harm, following a not guilty plea. He was sentenced to 4 months imprisonment, suspended for 18 months with an unpaid work requirement of 150 hours (23 years old).

On 14 March 2014, TB was convicted at Wood Green Crown Court of burglary and theft (dwelling) and of failing to comply with the requirements of a suspended sentence order, following a guilty plea (23 years old). On 7 August 2014, he was sentenced to 9 months imprisonment for the burglary (with full credit being given for his guilty plea) and to 3 months imprisonment consecutive under his activated suspended sentence order.

On 14 November 2014, the SSHD decided to deport TB but the deportation order was revoked on 30 April 2015 following a judicial review challenge.

On 5 February 2015, TB was released from prison.

On 22 September 2015, the SSHD issued a fresh deportation decision.

TB's appeal against the SSHD's decision was heard by FTT Judge Ruth (“the FTJ”) on 15 March 2016. By a decision promulgated on 11 April 2016 the appeal was allowed.

On 17 November 2016, UT Judge McGeachy (“the UTJ”) promulgated an error of law decision, following a hearing on 20 October 2016. There was a final hearing on 26 January 2017. On 17 February 2017, the UTJ promulgated his remaking of the decision, dismissing the appeal from the SSHD's decision.

On 19 March 2018, permission to appeal to the Court of Appeal was granted by Arden LJ.

The statutory framework

Part 5A NIAA applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life under Article 8ECHR.

In considering the public interest question the court or tribunal must have regard in all cases to the public interest considerations listed in s.117B, and, in cases concerning the deportation of foreign criminals, to the additional considerations set out in s.117C.

A foreign criminal for the purposes of Part 5A is defined in s.117D(2) as follows:

“(2) In this Part, “foreign criminal” means a person—

(a) who is not a British citizen,

(b) who has been convicted in the United Kingdom of an offence, and

(c) who—

(i) has been sentenced to a period of imprisonment of at least 12 months,

(ii) has been convicted of an offence that has caused serious harm, or

(iii) is a persistent offender.”

The additional considerations to which regard must be had in cases involving foreign criminals are 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.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”

The Immigration Rules

The relevant Immigration Rules (“IR”) applicable at the material time provide as follows:

“398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and

(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

399A. This paragraph applies where paragraph 398(b) or (c) applies if—

(a) the person has been lawfully resident in the UK for most of his life; and

(b) he is socially and culturally integrated in the UK; and

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”

The SSHD's decision letter

The SSHD concluded that TB's deportation was conducive to the public good on the basis that he was a persistent offender. Reliance was placed on paragraphs 398, 399 and 399A of the IR.

The SSHD accepted that TB had been resident in the UK for most of his life, but took the view that given his criminality and the lack of evidence of positive contributions, TB had failed to demonstrate that he was socially and culturally integrated into the UK.

The SSHD also took the view that there were no very significant obstacles to TB's reintegration into Turkey. He had never resided in Turkey as an adult, but had spent his formative years there, retained familiarity with Turkish customs and language and had family remaining in Turkey.

The SSHD considered that TB's criminality outweighed the family considerations in the case and that TB's relationships with his parents and siblings did not go beyond normal family ties and that TB could carry on his relationships from Turkey through modern methods of communication.

The FTT decision

The FTJ heard oral evidence from TB, his parents and his brother.

The FTJ summarised TB's evidence at [28]–[33], noting as follows:

(1) TB only speaks Turkish when speaking to his parents. He speaks English to his siblings and all of his friends in the UK.

(2) TB's only family member in Turkey with whom he is in contact is his grandmother, who is aged 73. He last saw her in 2008 on his only visit to Turkey since arriving in the UK and has not spoken to her since. TB has no friends in Turkey and, apart from when living in prison, has only ever lived with his parents. He is concerned about the effect of his removal to Turkey on his...