Upper Tribunal (Immigration and asylum chamber), 2017-02-17, HU/07208/2015
| Jurisdiction | UK Non-devolved |
| Date | 17 February 2017 |
| Published date | 24 November 2021 |
| Hearing Date | 26 January 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/07208/2015 |
Appeal Number: HU/07208/2015
IAC-AH-SAR-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07208/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 26 January 2017 |
On 17 February 2017 |
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Before
UPPER TRIBUNAL JUDGE MCGEACHY
Between
TOLGA BINBUGA
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr C Jacobs, of Counsel instructed by Messrs Ahmed Rahman Carr Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer
DECISION AND REASONS
1. On 20 October 2016 I heard an appeal by the Secretary of State against a decision of Judge of the First-tier Tribunal Ruth in which he had allowed the appellant’s appeal against a decision to deport. I found errors of law therein and set aside the decision. As I had not, at the hearing, indicated that I would re-make the decision without a further hearing I directed that the appeal came back before me for further submissions to be made. In my decision setting aside the determination of Judge Ruth I detailed the appellant’s immigration history, his history of offending, and the evidence given before the judge as well as the reasons why I considered that the judge’s findings on various matters contained errors of law. As I set out my reasoning for my conclusions on each aspect of the issues which had been before the judge in some detail, I incorporate that decision into this determination although for the sake of clarity where I have set out the judge’s findings in paragraph 18 I have changed what I first wrote: that does not alter my statements regarding the relevant law and my conclusions. I wrote as follows:-
“1. The Secretary of State appeals, with permission, against a decision of Judge of the First-tier Tribunal Ruth who, in a determination promulgated on 11 April 2016, allowed the appeal of Tolga Binbuga against a decision of the Secretary of State to deport him to Turkey under the provisions of Section 3(5)(a) of the Immigration Act 1971. Although the Secretary of State is the appellant before me, I will for ease of reference refer to her as the respondent as she was the respondent in the First-tier. Similarly, I will refer to Tolga Binbuga as the appellant as he was the appellant in that Tier.
2. The appellant is a citizen of Turkey who was born on 4 April 1990. He entered Britain with his father, mother and siblings on 28 September 1999 and although his family’s application for asylum was refused the family were all granted indefinite leave to remain on 25 June 2004.
3. On 17 January that year the appellant had received a reprimand for shoplifting, and on 27 July 2006 he was convicted of robbery at Wood Green Crown Court and received a conditional discharge of eighteen months. He was then warned by the respondent that although he would not be deported on that occasion, deportation might be considered in future if he were to come to adverse notice.
4. On 9 July 2008 he received a caution for the possession of cannabis. He was convicted of criminal damage on 27 March 2009 receiving a fine for that offence. Although the following year all other members of the family were granted citizenship, he was not included in the grant as he was already an adult and had not made an application.
5. On 23 August 2013 he was convicted at Wood Green Crown Court following a plea of not guilty of assault occasioning actual bodily harm. He received a suspended sentence of four months. On 7 August 2014, within the eighteen month period of his previous suspended sentence, he was convicted at the same court of burglary and theft from a dwelling. He pleaded guilty and received a sentence of imprisonment for nine months. Three months of his previously suspended sentence for assault were activated.
6. Following that conviction the respondent made a decision to deport under the automatic deportation provisions in the UK Borders Act 2007. The decision was initially certified but after judicial review proceedings, and on the basis that the appellant had received call-up papers for military conscription in Turkey and therefore it would be impossible for him to pursue an appeal effectively out of country, the initial deportation decision and certification was withdrawn and a fresh deportation decision was served on 22 September 2015 on the basis that the deportation of the appellant was conducive to the public good as he was a persistent offender and that his most recent convictions had resulted in consecutive sentences totalling twelve months’ imprisonment. In the decision letter the respondent referred to paragraphs 398, 399 and 399A of the Immigration Rules. Although it was accepted that the appellant had been lawfully resident in Britain for most of his life, it was considered that he had failed to demonstrate that he was socially and culturally integrated into Britain and it was also considered that there were no significant obstacles to his integration into Turkey.
7. The appellant appealed and his appeal came before Judge Ruth on 15 March 2016. The judge heard evidence from the appellant and members of his family, and in paragraphs 51 onwards of his determination set out his conclusions and the reasons therefor before stating that he allowed the appeal under the Immigration Rules and on human rights grounds.
8. In paragraph 55 the judge stated that his approach would be to consider whether the appellant satisfied the definition of a foreign criminal set out in Section 117D of the 2002 Act and then, if that condition was satisfied, the next step would be to consider whether the appellant satisfied the requirements specifically set out in paragraphs 398, 399 and 399A of the Rules. He then noted that if the provisions in paragraphs 399 and 399A were not met the further question would be to consider whether or not there were exceptional or very compelling circumstances as set out in paragraph 398. He commented that that paragraph was to be interpreted as importing “the well established principles of assessing the proportionality of deportation on Article 8 grounds as set out in jurisprudence”.
9. When considering Section 117D the judge accepted that the appellant satisfied sub-Sections 2(a) and (b). He stated however that the appellant had not been sentenced to a period of imprisonment of at least twelve months (he referred to the provisions of Section 117D(4)(b)) and then went on to conclude that he did not consider that the appellant was a “persistent” offender. He set out detailed reasons for that conclusion. In effect, he stated that the appellant’s offending which had taken place up until 2009 had been persistent but that the break thereafter meant that the issue was whether or not the appellant was a persistent offender after 2013 and at the time of his last conviction in August 2014. He concluded that at the date of decision the appellant was no longer a persistent offender: his reasoning for that was that the appellant has committed no further offences since October 2013. He glossed over the question of whether or not the appellant had caused serious harm.
10. He therefore concluded that the appellant was not a foreign criminal and that paragraph 398 of the Immigration Rules would not apply to him.
11. The judge then considered the case in the alternative, if, as a persistent offender, the appellant satisfied the requirements of paragraph 398(c) of the Immigration Rules. He considered the provisions of paragraph 399A stating that he was applying the holistic approach set out in the determination of Bossade (Sections 117A–D – interrelationship with new Rules) [2025] UKUT 000415 (IAC). He stated it was clear that the appellant met the provisions of sub-paragraph (a) since he had been lawfully resident in Britain for most of his life and he then went on to consider whether or not the appellant should be considered to be socially and culturally integrated into Britain. He noted the respondent’s view was that the appellant was not so integrated because of his criminality and his failure to make a positive contribution to society and also that the respondents had taken the view that there were no very significant obstacles to integration into Turkey.
12. The judge stated that he reached the opposite conclusion. In paragraph 80 he stated:-
“I reach my conclusion for a number of different reasons. Firstly, taking the oral evidence as a starting point, it seems to me that any person familiar with the accent, demeanour and presentation of youths from North London would be likely to regard the appellant and his brother as quintessential examples of such persons. Both spoke perfect and fluent English and expressed themselves with typical North London accents. They also presented themselves, in terms of their demeanour, in a manner entirely consistent with what one would expect from a young person who has grown up in North London. In my view this was so clear in evidence that it is a matter of which I am entitled to take judicial notice. This appellant is very clearly a ‘native’ North Londoner in his presentation”.
13. The judge went on to say that having noted the demeanour of the appellant and his family the appellant was clearly remorseful for his previous actions. He...
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