Upper Tribunal (Immigration and asylum chamber), 2018-07-13, RP/00157/2016
| Jurisdiction | UK Non-devolved |
| Date | 13 July 2018 |
| Published date | 30 July 2018 |
| Hearing Date | 10 July 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | RP/00157/2016 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00157/2016
THE IMMIGRATION ACTS
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Heard at Manchester |
Decision & Reasons Promulgated |
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On 10 July 2017 |
On 13 July 2018 |
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Before
UPPER TRIBUNAL JUDGE PLIMMER
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
TRUONG [D]
Respondent
Representation:
For the appellant: Mr Ell, Counsel
For the respondent: Mr Bates, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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Mr [D] is a citizen of Vietnam who was born in 1973 and is therefore 45 years old. On 3 November 2016, the SSHD made a decision to deport him to Vietnam. In a decision dated 27 July 2017, I found that the decision of the First-tier Tribunal (‘FTT’) allowing the appeal on Article 8 grounds dated 17 January 2017, contained an error of law and should be remade by me. I now remake the decision.
Background facts
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Mr [D] arrived in the United Kingdom (‘UK’) when he was a 13-year-old child, in 1986 on a settlement/refugee visa, together with his family, as one of the ‘boat people’. The difficult and traumatic circumstances of the ‘boat people’ are well known. They were granted leave to enter for an indefinite period. He has therefore been in the UK for 32 years alongside his parents and siblings (three sisters and two brothers), with settled status.
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Mr [D] has been convicted of a range of criminal offences between 1995 and 2007. More recently, in 2012, he was sentenced to two years and three months imprisonment for the production of cannabis. He has explained that his offending took place at a time when he was young and with drug, alcohol and gambling dependencies. Since his release from prison in February 2013, he has not reoffended.
Hearing
Issues in dispute
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At the beginning of the hearing Mr Ell clarified that given the FTT’s preserved findings, the only ground relied upon to challenge Mr [D]’s deportation is Article 8 of the ECHR. Both representatives agreed that the only remaining issues in dispute, relevant to Article 8, given the preserved findings of the FTT together with the updated evidence available to me, are as follows:
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does Mr [D] meet the requirements of section 117C(4)(c)?
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if not, are there ‘very compelling circumstances’ to nevertheless justify allowing the appeal on Article 8 grounds?
Oral evidence
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I then heard evidence from the appellant who was cross-examined by Mr Bates. Mr [D] gave his evidence in fluent English. He explained that he had been running a small take-away business called ‘Sea Breeze’ in Warrington from April 2018. He paid £10,000 for the business, and was paying for this in instalments of £300 per month. He therefore did not have any capital from the business to take with him to Vietnam. He worked long hours, seven days a week. He closed the business once a fortnight to visit his mother and disabled brother (‘B’), who both continue to reside in Birmingham.
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Mr [D] confirmed that he speaks to his mother in Vietnamese and is therefore able to understand and speak basic Vietnamese. Mr Bates pressed Mr [D] to acknowledge that with his English / Vietnamese, long experience as a chef and recent experience running a business, he would be well-placed to secure employment or start a business in Vietnam. Mr [D] simply said that he did not know anything about Vietnam and had not thought about looking into jobs in Vietnam that required English skills.
Submissions
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Mr Bates submitted that although reintegration to Vietnam may well be difficult, Mr [D] has demonstrated resilience in recent years and has the requisite experience and skills to overcome obstacles. Mr Bates also submitted that the circumstances relied upon by Mr [D] cannot properly be described as ‘very compelling’, because Mr [D]’s mother and B clearly had significant support from the other siblings, and would be adequately cared for by them. Mr Bates also invited me to find that there remains a strong public interest in deporting Mr [D] given his long history of offending and relied upon the FTT’s observation at [40] this is “not a story of juvenile offending that peters out as the person gets older and more mature. His first offence was in his early 20s and thereafter the offences continued and escalated in seriousness”.
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Mr Ell invited me to find that when the FTT’s preserved findings are considered alongside the updated evidence, Mr [D] would face very significant obstacles reintegrating in Vietnam. Mr Ell submitted in the alternative that when Mr [D]’s circumstances are viewed cumulatively, including the circumstances of his departure from Vietnam, the length of time he has been in the UK and the strong private life he has developed here, his family life particularly with his mother and B, they can be described as are very compelling and are not outweighed by the public interest, given Mr [D]’s low risk of reoffending and the passage of time. After hearing from both representatives, I reserved my decision which I now provide with reasons.
Legal framework
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Part 5A of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’), as inserted by section 19 of the Immigration Act 2014 includes the following:
“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.”
Since Mr [D]'s sentence was for imprisonment of more than 12 months but less than 4 years, it is sections 117C(3) and (4) which are applicable. The correct approach to section 117C(4)(c) is set out in SSHD v Kamara [2016] EWCA Civ 813, wherein, Sales LJ said this at [14]:
“In my view, the concept of a foreign criminal's "integration" into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of "integration" calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life.”
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In NA (Pakistan) v Home Secretary [2016] EWCA Civ 662, [2017] 1 WLR 207, Jackson LJ, giving the judgment of the Court of Appeal, noted at [24] that it is a "curious feature of section 117C(3) [of the 2002 Act] … that it does not make any provision for medium offenders who fall outside Exceptions 1 and 2". The Court concluded at [28] that, on a proper construction of section 117C(3), it provides that for ‘medium offenders’ (i.e. those with sentences of between one and four years' imprisonment):
"the public interest requires C's deportation unless Exception 1 or Exception 2 applies or unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2". (Emphasis added.)
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So construed, section 117C of the 2002 Act chimes with the relevant Immigration Rules at paragraphs 398 and 399.
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The Court of Appeal considered the meaning of ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’ in NA (Pakistan). The Court concluded at [29] that a foreign criminal facing deportation is not "altogether disentitled from seeking to rely on matters falling within the scope of the circumstances described in Exceptions 1 and 2 when seeking to contend that 'there are very compelling circumstances, over and above those described in Exceptions 1 and...
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