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||Neutral Citation Number:  EWCA Civ 2112
||Case No: C5/2016/0009
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UTIAC
Upper Tribunal Judge Canavan
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVIS
THE SENIOR PRESIDENT OF TRIBUNALS
LORD JUSTICE HENDERSON
|| Secretary of State for the Home Department
||- and -
Mr Zane Malik (instructed by Government Legal Department) for the Appellant
Miss Abigail Smith (instructed by Birnberg Peirce & Partners) for the Respondent
Hearing date: 2 November 2017
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Sir Ernest Ryder, Senior President:
- This is the appeal of the Secretary of State from the determination of Upper Tribunal Judge Canavan sitting in the Upper Tribunal (Immigration and Asylum Chamber) promulgated on 21 October 2015. The UT upheld the decision of the First-tier Tribunal and dismissed the Secretary of State's appeal. The FtT had allowed SC's appeal on human rights grounds ie it made findings in relation to articles 3 and 8 ECHR which were said to engage the exception to the automatic deportation regime in section 32(5) of the UK Borders Act 2007 ['the 2007 Act']. The Secretary of State's original decision was that the automatic deportation regime applied to SC's criminal offending with the consequence that he was to be deported.
- The following factual summary is taken from paragraphs 2 to 7 of the judgment of the FtT.
- SC is a national of Jamaica, born on 25 December 1991. He arrived in the United Kingdom on 26 December 2001 at the age of 10. He was refused leave to enter as a visitor on that occasion but was granted temporary admission until 25 January 2002. In December 2002 SC's mother applied for asylum with SC as her dependant. The claim, which was based on his mother's sexuality, was initially refused; however an appeal against the decision was subsequently allowed and SC was granted indefinite leave to enter the UK as a refugee on 9 October 2003.
- SC's offending history began during 2005 when he was reprimanded for destroying or damaging property. In 2006 he received two warnings for taking a motor vehicle and destroying or damaging property. Between 2007 and 2012 he acquired 14 criminal convictions for a total of 28 offences. These include a conviction for robbery on 1 November 2007; convictions for three robbery offences, attempted robbery and common assault in 2008; a conviction for assault and having an article with a blade in 2009; having an article with a blade in 2010 and using threatening, abusive or insulting words or behaviour in 2011. In addition, SC has been convicted of 9 offences relating to the police, courts or prisons and a number of driving offences.
- The most recent conviction and the trigger for the Secretary of State's deportation decision was on 11 June 2012 when SC was convicted of assault occasioning actual bodily harm, having an article with a blade and breach of an anti-social behaviour order. SC was sentenced to a period of two years detention in a young offenders' institution for the assault conviction.
- On 22 January 2013, the Secretary of State wrote to SC (having previously invited representations from him) in order to inform him that by reference to Article 1C of the 1951 Refugee Convention the circumstances in which he had been recognised as a refugee had ceased to exist and therefore there was no longer a risk of a breach of his article 2 and 3 rights. His refugee status accordingly ceased.
- On 20 March 2013 the Secretary of State wrote again to inform SC of her decision to make a deportation order under section 32(5) of the 2007 Act. In a letter served with the notice of decision, the Secretary of State explained why it was concluded that SC's circumstances did not fall within any of the exceptions to automatic deportation in section 33 of the 2007 Act.
- SC lodged his appeal with the FtT on 27 March 2013 under section 82 of the Nationality, Immigration and Asylum Act 2002. In his grounds of appeal he argued that the decision was not in accordance with the law; the discretion ought to have been exercised differently; the decision breached articles 2, 3 and 8 ECHR and failed to consider section 55 of the Borders, Citizenship and Immigration Act 2009.
- Judge Kamara allowed the appeal in a decision of the FtT promulgated on 6 March 2015. The Secretary of State appealed the decision to the UT. Upper Tribunal Judge Canavan dismissed the appeal in a decision promulgated on 21 October 2015. The Secretary of State sought permission to appeal to the Court of Appeal which was granted on 2 June 2016.
The statutory scheme:
- The statutory scheme for the automatic deportation of foreign criminals from the United Kingdom is contained in section 32 of the 2007 Act. Section 32(1) in conjunction with section 32(2) defines "foreign criminal": a description which it is accepted applies to SC. The Secretary of State is obliged to make a deportation order in respect of a foreign criminal (ie automatic deportation) by section 32(5). Section 32(4) also provides that the deportation of a foreign criminal is conducive to the public good for the purpose of section 3(5)(a) of the Immigration Act 1971.
- The exceptions to the automatic deportation regime are contained in section 33 of the 2007 Act. Section 33(2) provides that a foreign criminal is not to be deported where that would breach that person's (ECHR) Convention rights or the United Kingdom's obligations under the Refugee Convention.
- Given the engagement of Article 3 ECHR in deportation decisions ie that: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment", humanitarian protection is provided for in any consideration of deportation by rules on internal relocation. Paragraph 339O of the Immigration Rules provides:
"(i) The Secretary of State will not make:
(a) a grant of refugee status if in part of the country of origin a person would not have a well founded fear of being persecuted, and the person can reasonably be expected to stay in that part of the country; or
(b) a grant of humanitarian protection if in part of the country of return a person would not face a real risk of suffering serious harm, and the person can reasonably be expected to stay in that part of the country.
(ii) In examining whether a part of the country of origin or country of return meets the requirements in (i) the Secretary of State, when making a decision on whether to grant asylum or humanitarian protection, will have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the person.
(iii) (i) applies notwithstanding technical obstacles to return to the country of origin or country of return"
- Where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's rights under article 8 ECHR, Part 5A of the Nationality, Immigration and Asylum Act 2002 ['the 2002 Act'] applies. Section 117A of the 2002 Act states:
"(1) This Part applies where a court of 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 –
(a) in all cases, to the considerations listed in section 117B, and
(b) in case concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2)."
- Section 117C of the 2002 Act, so far as is relevant, sets out the following considerations to which the court or tribunal must have regard in cases concerning the deportation of 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 …
(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."
- There are also applicable Immigration Rules which were made under section 3(2) of the Immigration Act 1971. The relevant Immigration Rules concerning deportation and article 8 ECHR are paragraphs A398 to 399A. Paragraph A398 provides that:
"These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked."
- Paragraph 398 provides that:
"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."
- Paragraph 399 of the Rules concerns relationships with children and partners which are not at issue in this appeal. Paragraph 399A provides that :
"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 decision appealed:
- In the FtT, Judge Kamara considered, among other things, SC's criminal convictions, evidence from police officers that included intelligence about criminal offending, SC's own evidence and a report from a psychologist, Ms Luci Kralj.
- First, the judge considered whether SC was entitled to claim asylum in light of section 72 of the 2002 Act. She concluded that the presumption in section 72 had not been rebutted in light of SC's previous prolific offending and accordingly his asylum grounds failed. Neither SC nor the Secretary of State have taken issue with this decision.
- Second, the judge considered the claim under article 3 ECHR that SC would be at risk of inhuman and degrading treatment on the basis of his mother's sexuality. The FtT allowed SC's appeal on this ground for the following reasons:
a. There is a real risk of SC being subjected to further serious ill-treatment if he were to be removed to Jamaica.
b. SC could not access the protection of the authorities.
c. It is not reasonable to expect SC to seek to reside in another area of Jamaica.
- The FtT's conclusion in relation to relocation is set out at paragraph  of the judgment:
"In terms of the issue of internal relocation, I do not accept that it is reasonable to expect the appellant to seek to reside in another area of Jamaica in order to avoid his own and his mother's persecutors. The appellants' only links to Jamaica are in the area of Kingston where he used to live with his mother and maternal grandparents. Neither remain in Jamaica. Firstly, the appellant has not lived in Jamaica since 2001, visited the country subsequently or been in contact with any party there. Secondly, the appellant is deeply traumatised and in need of long-term psychological treatment (he is also described by Ms Kralj as institutionalised) and thirdly, most employment opportunities are likely to be available in the capital. Therefore, in order to avoid persecution, the appellant would be faced with moving to a rural location in order to avoid the general population, where he would be unsupported, homeless, destitute, unemployed and in need to psychological treatment."
- Third, the FtT considered SC's claim under article 8 ECHR and whether that fell within paragraph 398(b) of the Immigration Rules. The FtT upheld SC's appeal for the following reasons:
a. SC's 'lawful residence' in the United Kingdom amounted to 12 years and 2 months which was most of his life. The start date was 10 December 2002 when SC's mother applied for asylum with SC as her dependent, and the end date was the date of the hearing.
b. SC attended school in the UK, his mother and sister live in the UK and he has no contact with anyone in Jamaica. SC was accordingly socially and culturally integrated into the UK.
c. There would be significant obstacles to SC's integration in Jamaica because he has no family to return to, he was the victim of torture and he is severely traumatised and in need of long term specialist therapy.
- The FtT then considered whether in the event that the tribunal was wrong about the calculation of SC's 'lawful residence' there were any compelling reasons which render the case exceptional and which might outweigh the weight to be given to the public interest in deportation. Judge Kamara considered SC's criminal convictions and that the offences were serious. She found that there were the following compelling reasons to render his case exceptional:
a. SC experienced ill-treatment in Jamaica.
b. SC has a particularly close relationship with his mother.
c. SC's mother would seek to return to Jamaica with him, and this would be a disproportionate interference with her moral and physical integrity.
d. SC has severed ties with the gang of which he was a member.
e. SC may have been failed by the institutions in this country when he was a child.
f. SC had made substantial progress, in a very short period of time, in turning his life around in view of his traumatic experiences in Jamaica and other life circumstances.
- The FtT thus decided that deportation would breach SC's article 3 and 8 rights, and that the exception in section 33(2)(a) of the 2007 Act applied.
- In the UT, Upper Tribunal Judge Canavan upheld the decision of the FtT and dismissed the Secretary of State's appeal. The UT considered the FtT's conclusion on internal relocation and held that there was no material error of law. The UT concluded that the FtT had referred to the correct test in Januzi v Secretary of State for the Home Department  UKHL 5,  2 AC 246 (see below), and that the FtT's conclusion that SC could only live in a rural area of Jamaica was open to it on the evidence. In particular, the UT found that the findings in paragraph  of the FtT judgment would not on their own be sufficient to conclude that internal relocation would be unreasonable, but the FtT applied the correct test on an "overall reading of the decision".
- The UT did not consider any other grounds of appeal on the basis that any potential errors thereby disclosed would not be material to the overall outcome because the UT had upheld the article 3 findings.
Grounds of appeal:
- There are three grounds of appeal:
a. The UT erred in relation to the question of internal relocation for the purpose of article 3. The UT's approach to the guidance given in Januzi (supra) was an error of law. The FtT's findings were patently inadequate and the UT erred in upholding the FtT's decision.
b. The UT erred in law in relation to paragraph 399A of the Immigration Rules.
c. The UT erred in law in relation to its approach to article 8. The FtT had erred in law in embarking on a freestanding assessment of article 8 and, in any event, had applied the wrong test. The UT should have found an error of law in the FtT's decision.
Ground 1: Internal relocation
- There are two issues in relation to the internal relocation question which are as follows:
a. Whether the tribunal was wrong to come to the conclusion that it was unduly harsh and not reasonable to relocate to a part of Jamaica; and
b. Whether SC's criminality is relevant to the reasonableness of relocation.
- A person is a refugee within the meaning of article 1A(2) of the Refugee Convention if they are unable or unwilling to avail themselves of the protection of their home country owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. A person is not a refugee if they can reasonably or without undue harshness be expected to live in another part of their home country where they would not have a well-founded fear of persecution. This is the 'internal relocation' or the 'relocation alternative'.
- The leading House of Lords authority on the issue of internal relocation is Januzi. The question in Januzi was whether, in judging reasonableness and undue harshness in this context, account should be taken of any disparity between the civil, political and socio-economic human rights which the person would enjoy in the place of relocation and the place of asylum. The House of Lords was of the opinion that it should not. Lord Hope held at  that:
"… I too would hold that the question whether it would be unduly harsh for a claimant to be expected to live in a place of relocation within the country of his nationality is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic human rights."
- The House of Lords also gave guidance on the approach to reasonableness and undue harshness. Lord Bingham held at  that:
"The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so."
- Accordingly, undue harshness is to be judged by reference to SC's country of nationality and by reference to SC's personal circumstances.
- The issue of the reasonableness of internal relocation accordingly involves three separate questions:
1. What is the location to which it is proposed the person could move?
2. Are there real risks of serious harm or persecution in this place?
3. If not, is it reasonable or not unduly harsh to expect the person to relocate to this place?
- The first question is a factual question and the second question is an evaluation to be resolved on the basis of the evidence accepted by the tribunal. There is no legal complexity to the questions, although the tribunal should seek to express its conclusions in a clear way to show that it has considered the evidence relevant to the questions. The third question involves a further value judgment based on the evidence accepted. On its face, paragraph 339O of the Immigration Rules reflects the test laid down by the House of Lords in Januzi and requires the decision maker to consider the general circumstances prevailing in the country concerned and the personal circumstances of the person.
- I regret to have to conclude that the decision of the FtT on this question whether as set out in its judgment at  or taking the judgment as a whole is flawed for the following reasons. There is no consideration of any part of Jamaica other than Kingston and there is no analysis of whether the rest of Jamaica (rural or urban) is homogenous or differentiated in terms of the risk of serious harm or persecution that exists. The FtT relied upon SC's need for medical treatment as a relevant relocation factor but without conducting an analysis of any evidence that there might have been about whether his medical treatment could be continued in any particular part of Jamaica or, if it is the case, whether medical facilities there are inadequate. Further, the FtT found that there was a lack of employment opportunities for SC without any evidential foundation.
- I accept the submission that the evaluative exercise is intended to be holistic and that no burden or standard of proof arises in relation to the overall issue of whether it is reasonable to internally relocate (see, for example Sedley LJ in Karanakaran v SSHD  EWCA Civ 11 at  and ). That is distinct from the question whether there is any evidence upon which the evaluations could be made. This court cannot know what evidence, if any, was provided on questions (1) and (2) and whether the tribunal accepted or rejected any part of that evidence in coming to a value judgment which is accordingly not supported by evidence. It has not been demonstrated to us that the conclusions of fact are inferences that could properly be drawn from materials that were available. It is accordingly wrong to say that there were clear factual findings to which the test of reasonableness was applied or that the tribunal had sufficient factual material to undertake an holistic assessment for the purpose of the third question.
- The Secretary of State also challenges the FtT's value judgment on the basis that SC's criminal convictions are a relevant factor which was ignored by the tribunal. She submits that criminality may turn relocation from what would otherwise be an unduly harsh consequence into a consequence which is not unduly harsh.
- On behalf of SC it is submitted that it is impermissible to import public interest considerations into what is an article 3 ECHR question with the consequence that criminal convictions are not relevant. Case law on deportation (where the public interest is required to be considered under the relevant rules) should not be imported into this question.
- The test in Januzi was left intentionally broad: all relevant circumstances concerning the person and the country and that in principle includes criminality. It may of course be a factor of no weight given the broad circumstances that are relevant. It may change nothing and, indeed, it is difficult to characterise in what circumstances an unduly harsh consequence might be turned into a consequence that is not unduly harsh by this factor. It is perhaps unwise to hypothesise: the conclusion will be highly fact sensitive. I am satisfied however that providing answers to questions one and two of the internal relocation test does not involve an impermissible importation of a public interest consideration into an article 3 protection. It is clear that no breach of article 3 ECHR arises because the tribunal only reaches the third stage of the test if it is satisfied that the person would not be exposed to a real risk of serious harm. It is not asserted on behalf of the Secretary of State that ill-treatment imposed on the person falls short of ill-treatment because of the person's criminal convictions. I do not understand the Secretary of State to be arguing that criminal convictions should override ill-treatment, but that criminal convictions have relevance to the reasonableness of moving to a place without the risk of ill-treatment.
- The third question can be framed in this way: is it unduly harsh to make SC move to another place in Jamaica where he will be safe, rather than letting him stay in the UK? The phrase 'unduly harsh' imports a value judgment of what is 'due' to the person. It is possible to postulate that what may be an unduly harsh consequence for one person may not be an unduly harsh consequence for another person where the latter is a person who represents a danger to the community because he has committed serious offences. This is not to allow public interest considerations to infringe human rights; there would be no infringement of article 3 in the new location. I am accordingly persuaded that SC's criminality should have been considered and it was not.
- Does this analysis vitiate the finding of the FtT? The tribunal did not expressly weigh SC's criminal activity in the balance (see, for example the judgment at ), although the judgment is informed by the tribunal's view of SC's criminal conduct and, ultimately, by the conclusion that the traumatic experiences of SC's childhood are partially to blame and that he can be rehabilitated. The UT found that some of the factors considered by the FtT in assessing reasonableness (including criminality) were implicit but that is not in itself a satisfactory conclusion. It is accordingly unclear what the tribunal weighed in the balance. The FtT would have been better advised to structure the consideration of internal relocation differently. A useful structure would be to list all the factors pointing towards internal relocation being unduly harsh and then list those factors pointing against internal relocation being unduly harsh. A paragraph should follow which explains the balancing exercise undertaken, the conclusion and the reasons for the conclusion. This kind of balance sheet approach has become a commonplace in questions of this kind and might usefully be adopted by the FtT when this question arises.
- For these reasons, I have come to the conclusion that the FtT was in error in failing to undertake an assessment of the reasonableness of relocation and was sufficiently unclear that it is not possible to say that SC's criminal convictions were properly considered.
Grounds 2 and 3: article 8, the 2002 Act and the Immigration Rules
- There are two frameworks in which article 8 is to be considered in foreign criminal deportation cases. First, there are sections 117A to D of the 2002 Act. Second, there are paragraphs 398, 399 and 399A of the Immigrations Rules.
- In relation to sections 117A – 117D of the 2002 Act, Sales LJ in Rhuppiah v Secretary of State for the Home Department  EWCA Civ 803,  1 WLR 4204 held at  that:
"It is common ground that the starting point for consideration of the proper constructions of Part 5A of the 2002 Act is that sections 117A-117D, taken together, are intended to provide for a structured approach to the application of Article 8 which produces in all cases a final result which is compatible with, and not in violation of Article 8."
- The Court of Appeal cited this with approval in NEA (Nigeria) v Secretary of State for the Home Department  EWCA Civ 239 at . At  Sir Stephen Richards went on to hold:
"That a requirement of "very compelling circumstances" in order to outweigh the public interest in the deportation of foreign criminals sentenced to at least four years' imprisonment is compatible with Article 8 was accepted in MF (Nigeria) and in Hesham Ali itself. Of course, the provision to that effect in section 117C(6) must not be applied as if it contained some abstract statutory formula. The context is that of the balancing exercise under Article 8, and the "very compelling circumstances" required are circumstances sufficient to outweigh the strong public interest in the deportation of the foreign criminals concerned."
- Furthermore, although section 117C(6) of the 2002 Act only applies on its face to people who have been sentenced to more than four years' imprisonment, the Court of Appeal has held that the words "or unless there were very compelling circumstances, over and above exceptions 1 and 2" are to be read into the end of section 117C(3) in order for that section to be compliant with article 8: NA (Pakistan) v Secretary of State for the Home Department  EWCA Civ 662,  1 WLR 207 at .
- Similar statements about the framework for the consideration of article 8 have been made in relation to the Immigration Rules. In MF (Nigeria) v Home Secretary Lord Dyson MR held at :
"[T]he new rules are a complete code and … the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence."
- The 2002 Act and the Immigration Rules are consistent the one with the other and clearly state that it is in the public interest to deport foreign criminals. The Act and the Rules provide a framework for the determination of article 8 in that context.
- There is some limited guidance on what constitutes "very compelling circumstances", but the exercise is always fact-specific and involves the balancing of the public interest in deportation with the other factors. It is clear that it is a high hurdle to clear. Jackson LJ, giving the judgment of the Court of Appeal in NA (Pakistan) held at  that:
"Although there is no "exceptionality" requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient."
- Whether an article 8 interference is justified for the purposes of the Act is defined as the 'public interest question' by section 117A(3) of the 2002 Act and the matters to which the tribunal is to have regard in relation to that question are non-exclusively set out in sections 117B and 117C. The public interest in the deportation of criminals is set out in section 117C and SC is a foreign criminal whose conviction and sentence bring him within sections 117C(3) and (4) of the Act. Accordingly, SC's deportation is required unless exception 1 applies. That exception requires three limbs to be satisfied: SC has been lawfully resident in the UK for most of his life, he is socially and culturally integrated in the UK and there would be significant obstacles to his integration into Jamaica.
- Paragraphs A398 and 398(b) of the Immigration Rules apply the Rules to SC as a foreign criminal liable to deportation. Paragraph 398 sets out the policy of the Secretary of State in her evaluation of the public interest in deportation where an interference with article 8 is claimed. The public interest in deportation will only be outweighed by other factors where there are 'very compelling circumstances' over and above those described in paragraph 399A. The other factors set out in paragraph 399A replicate the three limbs of exception 1 in sections 117C(3) and (4) of the 2002 Act, all of which must be met.
- There are three issues to be considered under this ground of appeal:
a. Whether the phrase 'most of his life' in paragraph 339A(a) of the Immigration Rules contemplates more than half of a person's life or something more significant;
b. Whether 'lawful residence' is a phrase susceptible of a precise meaning so that it determines the date from which 'most of his life' is to be considered and what is the date from which time has to run for the purposes of paragraph 339A(a) of the Rules? and
c. Whether the FtT failed to give weight to the public interest in deporting criminals in its evaluation of article 8.
- The starting point for the temporal question is the decision of this court in AS (Iran) v Secretary of State for the Home Department  EWCA Civ 1284 per Moylan LJ at  where it was concluded that 'most of his life' is a quantitative not a qualitative concept. Everyone agrees that 'most' must connote more than half but no-one was able to characterise with any prospect of certainty or consistency just how much more than half that would be if the tribunal is to be expected to engage in an evaluation that is quantitative. Having regard to the difficulties that would be created by any other formulation, I have concluded that the plain meaning of 'most of his life' for this purpose has to be 'more than half'.
- Somewhat surprisingly, there is no definition of 'lawful residence' for the purposes of paragraph 399A of the Rules. The exception in paragraph 399A to which the lawful residence condition attaches is the strength of the person's connection to the UK as compared with the strength of the person's connection with their home country where connection is their social and cultural integration. It is clearly the intention of the Secretary of State that length of stay in the UK is a proxy for strength of connection given that the exception is predicated on the temporal condition of 'most of his life'. There is an un-related definition of lawful residence in paragraph 276A(b) of the Rules for the purposes of an application for indefinite leave to remain as follows:
"lawful residence" means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain; or
(ii) temporary admission within section 11 of the 1971 Act where leave to enter or remain is subsequently granted; or …"
- The Secretary of State says that if she had intended to apply this definition to paragraph 399A of the Rules she would have said so but that simply leaves the question unanswered. It is also unhelpful to say that the definition in paragraph 276A(b) does not include lawful residence under EU law to which an applicant is entitled. What is submitted by SC is not that paragraph 276A(b) should directly apply but that an analogous interpretation of lawful residence should be applied to the wording in paragraph 399A.
- It appears to be common ground that a person is granted temporary admission from the date of their application to be a refugee. Temporary admission for an adult is a precarious status. Such a person cannot work and by the very nature of it being precarious, social and cultural integration cannot be established. It is only once the asylum claim is granted that the person can start to build a life in the UK. On this basis, a rational basis for lawful residence would be a date from which a person has a valid right to remain. That is the submission of the Secretary of State. On the other hand, 'lawful' ordinarily has the meaning 'permitted by law' and if a person is permitted to remain by temporary leave that should be sufficient. That would at least provide internal consistency to the different usages of the same phrase in the Rules and would also reflect the fact that the concept of precarious status is not relevant to a child, and hence to SC, for part of the time under consideration on the facts of this case.
- Of the two possible interpretations put to this court, I prefer that which is internally consistent and which provides for the circumstances of both adult and children ie that lawful residence for the purposes of paragraph 399A(a) runs from the date of application for refugee status. On that basis the FtT took an appropriate date from which to determine lawful residence.
- On the article 8 question, the Secretary of State submits that the FtT misdirected itself in law when it considered whether there were "any compelling reasons" why SC should remain, rather than the correct test which is whether there are "very compelling circumstances". The Secretary of State also submits that the FtT erroneously took into account SC's compassionate circumstances, failed to consider his lack of financial independence and failed to appreciate the weight which is to be placed on the public interest in the deportation of foreign criminals.
- On behalf of SC it is submitted that the FtT was correct in its analysis of article 8 and that the FtT correctly directed itself as to the law. The FtT considered the public interest in deportation alongside SC's circumstances and those of his mother and conducted an appropriate balance in its evaluation.
- The concept of social and cultural integration is to be interpreted in accordance with common sense. As Lord Brown held in Mahad v Entry Clearance Officer  1 WLR 48 at , the Immigration Rules should "not … be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy".
- The same broad approach should apply to the analysis of a foreign criminal's integration into the country to which he is proposed that he be deported. In Kamara v Secretary of State for the Home Department  4 WLR 152 Sales LJ (with whom Moore-Bick LJ agreed) held at  that:
"[T]he 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."
- In this case, the FtT did not analyse the public interest question in accordance with the statutory scheme. It treated the article 8 analysis as a free standing question outside the statutory scheme. The consequence is that the evaluation is lacking in focus. It failed to give sufficient weight to SC's criminal convictions because it balanced SC's criminal offending against his traumatic history rather than against the statutory factors having regard to the test. In any event, the test was mis-described.
- The Secretary of State is right to point out that financial dependency and criminal convictions, if evaluated, may indicate a lack of integration. The FtT was equally entitled to find facts about SC's traumatic history, the duration of his lawful residence, his attendance at school in the UK, his recent progress to turn his life around and the family life that he had enjoyed in the UK. Those are all relevant to social and cultural integration. Likewise the FtT's findings of fact about the age that SC left Jamaica, the torture he experienced and his need for specialist mental health therapy are relevant to whether there would be very significant obstacles to his integration in Jamaica.
- Accordingly, as respects two of the factors relevant to exception 1, the FtT's findings of fact are not obviously perverse and would be relevant if evaluated by reference to the appropriate tests in the context of the statutory scheme. That said, I have come to the conclusion that the FtT erred in law in the approach it adopted to the public interest question in its overall evaluation of all relevant facts with the consequence that its conclusions cannot stand.
- I would allow the appeal on all grounds. Given that there are issues of fact that can be determined in favour of both the Secretary of State and SC, I have come to the conclusion that the appropriate course is to set aside the determinations of the UT and the FtT and to remit the application to the FtT for re-hearing.
Lord Justice Henderson:
- I have had the opportunity of reading my Lords' judgments in draft. I agree with both judgments.
Lord Justice Davis:
- I also agree.
- The FtT's evaluation of the position both by reference to Article 3 and by reference to Article 8 was unbalanced and flawed for the reasons given by the Senior President. I only add, on the issue of internal relocation, that the matters subject to debate in MM (Uganda) v SSHD  EWCA Civ 617 and MA (Pakistan) v SSHD  EWCA Civ 705 do not seem to me to be of any very particular materiality in the circumstances of the present appeal.
- The phrase "for most of his life" as used in paragraph 399A (a) of the Immigration Rules is, as it has been put, quantitative in nature. It might well be possible to read it as connoting something like the very great part of the person's life. But the language is also consistent with meaning simply more than one half. If the former approach is adopted, immediately difficult questions arise. Is three-quarters enough? Is two-thirds enough? Will one particular fraction suffice in one case and not in another (and if so, why)? These difficulties to my mind point to a reading connoting simply more than one half: a reading also consistent with the language used, naturally read.
- Mr Malik objected that if that was what was intended the rule could and should specifically have so provided: as is the case, for example, in paragraph 276 ADE (1)(v). But, not least because the Immigration Rules are difficult sometimes to read consistently and as a whole, if only because of their varying contexts and (frequently) piece-meal introduction, I do not agree. An interpretation which gives rise to clarity and ease of objective application is to be preferred to one which does not.
- I find the interpretation to be given to the phrase "lawfully resident" – not defined for the purposes of paragraph 399A – altogether more difficult.
- The phrase has an appearance of some formality. Further, as Mr Malik pointed out, residence ordinarily connotes something more than presence. I see force in the argument that in the present context lawful residence at least requires the grant of leave to enter or remain. As Mr Malik pointed out, there are cases where those who are not otherwise lawfully resident – for example, an applicant whose appeal rights have all been exhausted and is potentially liable to removal – may still be granted temporary admission.
- However, for the (specific) purposes of the provisions in the Immigration Rules relating to long residence, "lawful residence" includes continuous residence pursuant to temporary admission where leave to enter or remain is subsequently granted: paragraph 276A (b). I fully accept that it does not follow that that is also necessarily then so for the purposes of paragraph 399A. But it at least shows that Parliament was accepting that temporary admission is not entirely and always to be excluded from notions of "lawful residence": although of course in many contexts it may be so excluded (cf. R (ST (Eritrea) v SSHD  UKSC 12). At all events, a person is not necessarily "unlawfully" present in the United Kingdom simply because he has no vested right of residence: see cf. Akinyemi v SSHD  EWCA Civ 236. Moreover, in a case such as the present the grant of leave to remain will have been on the footing of acknowledging a pre-existing status. It thus makes some sense for the lawful residence at least to relate back to the date of the application for asylum: at which date (as was accepted before us on this appeal) temporary admission was to be deemed to be granted. Overall, albeit with some hesitation, I consider that the approach taken in paragraph 276A (b) can and should be applied by analogy to the present context. If this does not represent the wishes of the Government the remedy is to provide a definition of the phrase for the specific purposes of Rule 399A.
- In the actual result, I too would allow the appeal for the reasons given by the Senior President and would remit to the First-tier Tribunal for re-hearing.
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