Upper Tribunal (Immigration and asylum chamber), 2021-02-12, PA/04619/2019
| Jurisdiction | UK Non-devolved |
| Date | 12 February 2021 |
| Published date | 26 February 2021 |
| Hearing Date | 22 January 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/04619/2019 |
Appeal Number: PA/04619/2019 (V)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04619/2019 (V)
THE IMMIGRATION ACTS
|
Heard at Field House (remote hearing) |
Decision & Reasons Promulgated |
|
On 22 January 2021 |
On 12 February 2021 |
|
|
|
Before
UPPER TRIBUNAL JUDGE SHERIDAN
Between
MAY
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Mr M Karnick, Counsel instructed by Citywide Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer
This has been a remote hearing which has been consented to by the parties. The form of remote hearing was video by Skype (V). A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. I did not experience any difficulties and neither party expressed any concern with the process.
DECISION AND REASONS
-
By my decision dated 7 October 2020 (a copy of which is appended to this decision) I set aside the decision of the First-tier Tribunal. I now remake that decision.
Background
-
The appellant is a citizen of Somalia, born on 2 June 1994. He left Somalia at the age of nine and entered the UK in 2006, aged twelve, on a family reunion visa. In 2010 he was issued a Refugee Convention travel document valid until 30 October 2020.
-
Since entering the UK the appellant has not returned to Somalia.
-
The appellant has been convicted twice for criminal offences involving drugs. In 2013 he was convicted of possession of a class B drug. In 2017 he was convicted and sentenced to 42 months’ imprisonment for possession with intent to supply a class A drug.
-
The appellant lives with his mother and cousin.
-
A deportation order was made against the appellant pursuant to section 32(5) of the UK Borders Act 2007. Section 32(5) is subject to the exceptions specified in Section 33. One of the exceptions is that deportation will breach the UK’s obligations under the ECHR or the Refugee Convention.
-
The appellant made representations to the respondent arguing that his deportation would breach articles 3 and 8 ECHR. The appellant’s arguments were rejected by the respondent.
-
The appellant appealed and his appeal came before Judge of the First-tier Tribunal Bulpitt. Judge Bulpitt dismissed the appeal, finding that deporting the appellant to Somalia would not be incompatible with his rights under either article 3 or article 8 ECHR.
-
In my decision dated 7 October 2020 I upheld the decision of Judge Bulpitt in respect of article 3 ECHR, but found that he had erred in law in respect of his consideration of article 8 ECHR. I limited the re-making of the appeal to article 8 ECHR. I also preserved the findings of fact made by Judge Bulpitt in paragraphs 20 – 31 of his decisions.
Legal framework and issues in dispute
-
Section 117C of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), considered together with the rest of Part 5A of the 2002 Act, provides the framework to evaluate whether deporting a foreign criminal will breach article 8 ECHR.
-
Section 117C provides:
(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.
-
The relationship between the Exceptions in sections 117C(4) and (5) and section 117C(6) was explained succinctly in paragraph 36 of NA (Pakistan) v Secretary of State for the Home Department & Ors [2016] EWCA Civ 662 (cited with approval in paragraph 30 of HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176):
"In relation to a medium offender, first see whether he falls within Exception 1 or Exception 2. If he does, then the Article 8 claim succeeds. If he does not, then the next stage is to consider whether there are 'sufficiently compelling circumstances, over and above those described in Exceptions 1 and 2'. If there are, then the Article 8 claim succeeds. If there are not, then the Article 8 claim fails."
The reference to a “medium offender” is to a foreign criminal, as defined in section 117D of the 2002 Act, who has been sentenced to less than four years imprisonment. The appellant is a medium offender.
-
Accordingly, if either Exception 1 or 2 applies, that will be determinative of the appeal. In the event that neither Exception applies, it will be necessary to proceed to consider Section 117C(6).
-
Exception 2 is not applicable to the appellant.
-
In respect of Exception 1, it was common ground that sub-paragraphs (a) and (b) are satisfied; that is, that the appellant has been lawfully resident in the UK for most of his life and that he is socially and culturally integrated in the UK. The sole area of contention was sub-paragraph (c): whether there would be very significant obstacles to his integration into Somalia. The appellant was born in - and if deported will be returned to - Mogadishu. It is therefore the obstacles (if any) that he will face integrating into Mogadishu that are relevant in this appeal.
-
The meaning of very significant obstacles to integration is not defined in the 2002 Act. A clear explanation of how integration should be understood, however, was given by Sales LJ in paragraph 14 of Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813, [2016]4 WLR 152 (cited with approval in paragraph 58 of Akinyemi v The Secretary of State for the Home Department [2019] EWCA Civ 2098). He stated:
"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."
-
In Parveen v The Secretary of State for the Home Department [2018] EWCA Civ 932 at paragraph 9 the Court of Appeal commented on what is meant by "very significant". It is stated:
“It is fair enough to observe that the words "very significant" connote an "elevated" threshold, and I have no difficulty with the observation that the test will not be met by "mere inconvenience or upheaval". But I am not sure that saying that "mere" hardship or difficulty or hurdles, even if multiplied, will not "generally" suffice adds anything of substance. The task of the Secretary of State, or the Tribunal, in any given case is simply to assess the obstacles to integration relied on, whether characterised as hardship or difficulty or anything else, and to decide whether they regard them as ‘very significant’"
-
The two issues to be determined, therefore, are:
-
First, whether there will be very significant obstacles to the appellant’s integration into Mogadishu. If this is decided in the appellant’s favour that will be determinative of the appeal as he will satisfy all of the conditions of Exception 1.
-
Second, whether there are sufficiently compelling circumstances over and above those described in Exceptions 1 and 2. This will only need to be considered if the appellant does not fall within Exception 1.
-
The hearing
-
I heard oral evidence from the appellant, his mother and his cousin. In advance of, and at, the hearing Mr Karnick highlighted that the appellant’s mother is vulnerable and that this should be taken into account. Mr Walker acknowledged this and his (brief) cross-examination of her was conducted in an appropriate way that did not give rise to any concerns.
-
The focus of Mr Walker’s cross-examination of the three witnesses was on whether the appellant would receive any financial support from the UK and whether he would receive assistance from any family (or anyone else) living in Somalia. The consistent evidence of the witnesses was that they have no family (or any other contacts/connections) in Somalia. The evidence of the...
To continue reading
Request your trial