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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> HU024442018 [2019] UKAITUR HU024442018 (7 August 2019)
URL: http://www.bailii.org/uk/cases/UKAITUR/2019/HU024442018.html
Cite as: [2019] UKAITUR HU24442018, [2019] UKAITUR HU024442018

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Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/02444/2018

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House

Decision & Reasons Promulgated

On 11 th June 2019

On 7 th August 2019

 

 

 

Before

 

UPPER TRIBUNAL JUDGE REEDS

UPPER TRIBUNAL JUDGE PLIMMER

 

 

Between

 

UM

(ANONYMITY DIRECTION MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Mr Alam, Counsel instructed by Khan's Solicitors

For the Respondent: Mr Lindsay, Senior Presenting Officer

 

 

DECISION AND REASONS

1.              The appellant appeals, with permission, against the decision of the First-tier Tribunal (Judge Bristow) (hereinafter referred to as the "FtTJ") promulgated on the 26 th April 2018 in which the Tribunal dismissed his appeal against the decision of the Secretary of State to refuse his protection and human rights claim in the context of the respondent having made a deportation order against him under Section 32(5) (of the UK Borders Act 2007).

2.              The FtT did not make an anonymity direction. However as the appellant has made a protection claim we think it right at this stage to make a direction regarding anonymity under Rule 14 of the Tribunal Procedure (Upper Tribunal Rules) Rules 2008. Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Background:

3.              The appellant is a citizen of Pakistan born in 1989. He entered the United Kingdom on the 27 February 1991 with his mother and was granted six months leave to enter.

4.              On 15 th of March 1991 his mother claimed asylum and in October 1994 claim was refused. Her appeal against the decision was dismissed on 26 June 1998.

5.              On 23 rd of October 2002 the appellant's mother made an application for leave to remain under the seven-year child concession stating that she had separated from her husband due to domestic violence.

6.              On 14 January 2003 the appellant's mother submitted an application for settlement including the appellant as her dependant.

7.              On 10 March 2003 the appellant was granted indefinite leave to remain (ILR) as the dependent of his mother, who was granted by ILR on the basis of the seven-year child concession.

His criminality:

8.              On 18 April 2007 he was convicted at the Juvenile Court of two counts of attempted robbery and given a referral order for nine months. On 11 July 2007 the referral order was revoked, and he was re-sentenced to a community order, with a supervision requirement for 12 months and a curfew requirement for 30 days.

9.              On 11 July 2007 he was convicted of robbery and sentenced to a community order, with a supervision requirement for 12 months and a curfew requirement for 30 days.

10.          On 7 July 2011 he was convicted of possessing a controlled drug (class B cannabis) and fined £33.

11.          On 26 August 2016 the appellant was convicted at the Crown Court for a number of offences of robbery and attempted robbery. He faced a nine-count indictment which included counts 7-9 representing the possession of an imitation firearm when committing a schedule one offence.

12.          On 22 nd of December 2016 he was sentenced to 6 ½ years' imprisonment. The sentencing remarks are set out at [G1]. The appellant had pleaded guilty to 4 offences of robbery, five offences of attempted robbery and three offences of possession of an imitation firearm at the time of committing the offences. The offences were committed between 11 June and 1 August 2016.

13.          On 11 June he committed three offences; two of robbery and one of attempted robbery. He committed a robbery at a betting office and five minutes later went into a store where he produced an imitation firearm to the cashier who was five months pregnant. That was the attempted robbery. From there he went to a large chemist where he again produced an imitation firearm and robbed the assistant of £50. This was later recovered from a bin at the rear of the store.

14.          On 20 June he committed three offences of attempted robbery; he attempted to rob another store by threatening the assistant with acid and at 6:30 PM and 7:05 PM attempted to rob a betting office and a coffee shop by threatening the assistant with the bomb. He was arrested for the betting office offence on 20 June which he admitted and was then released on bail.

15.          On 27 th July carried out robbery at a bookmaker where he stole £450 by threatening to shoot the assistant there. He was arrested on 30 July for the offences at the bookmakers and the coffee shop on 20 June. He admitted them and again was released on bail.

16.          On 31 July he attempted to rob a bookmaker by threatening to throw excrement and urine over the counter.

17.          On 1 August he robbed a bookmaker of £330 by producing an imitation firearm and demanding the cash.

18.          It had been agreed between the parties that those offences fell into the category of less sophisticated, commercial robberies. The Judge was satisfied that where imitation firearms or other legal weapons were produced, they fell within category A of high culpability and category 2 harm. However, the sheer number of the offences put them outside the Sentencing Council Guidelines.

19.          The judge identified the following aggravating features in the appellant's case; he had previous convictions for one robbery and two attempted robberies which were all street offences; they were committed in 2007 when he was 17 years old so they were over nine years old at the time of the present offences and therefore the judge discounted them. Secondly, the appellant had committed the robberies of the bookmakers on 22 July and the robbery of betting office and the possession of the imitation firearm on the 1 August, the attempted robbery of a further betting office on 31 July whilst on bail, and the last three offences in time when he had also been granted bail on two separate occasions. The judge considered that it merited consecutive sentences.

20.          The judge accepted that they were not sophisticated offences and on a number of occasions he took no steps to disguise his appearance. The pre-sentence report and the psychiatric report revealed that he been addicted to gambling and carried out the offences in order to frighten the staff into handing over money with which he intended to carry out further gambling.

21.          The judge gave full credit to guilty pleas but reached the conclusion that the offences were so serious that only a custodial sentence was appropriate. He was not assessed as a "dangerous offender" as defined and therefore determinate sentences were imposed. The judge therefore sentenced the appellant to a total of 6 ½ years' imprisonment.

22.          As a result of his criminality, on June 1, 2017 the appellant was served with a stage I deportation decision (see H1-H7).

23.          On 16 June 2017 his solicitors Malik Law Chambers responded stating that deportation would breach his human rights (at [I1-I115]). The submissions made reference to his immigration history- having arrived in the UK with his parents in 1991 aged one year and two months lived all of his life in the UK and that he was granted ILR in 2003.

24.          It was stated that he had two sisters and a brother living in the UK - all were born in the UK and were British nationals. His parents were settled and had ILR. He had close extended family members and had lived with his mother and siblings before he was sent to prison. He had no memory of life in Pakistan and had always considered himself British. He had been outside the UK only once and he did not speak the Pakistani language having grew up in Britain with limited exposure to Pakistani culture. In Pakistan he would have no friends, family, home or knowledge of the language or culture as he had adapted to the English way of way of life.

25.          It was said he had no connections in Pakistan and would have difficulty surviving because he could not speak the language, and not having any relations or links to the Pakistani culture which would make it difficult to adapt to life in Pakistan. He would not be able to find a job to establish himself there.

26.          Furthermore, it was asserted the due to his depression he would not be able to adjust, and this would make sense of local customs more difficulties.

27.          It was asserted that there were "compelling and exceptional circumstances" and that his removal violated his human rights and Article 8.

28.          At paragraph 5 [G13] the letter provided a number of documents from 1-14.

29.          The appellant made a human right claim on the 16 June 2017.

30.          On 8 January 2018 a deportation order was made. (see [K1]).

31.          On the 9 January 2018 a decision was made to refuse a human rights claim.

The respondent's decision:

32.          The decision letter set out that Section 32 (5) of the UK Borders Act 2007 required a deportation order be made against him unless he could demonstrate that he fell within any of the specified exceptions set out in Section 33 of that Act. The decision letter made reference to his immigration history and his criminal offending.

33.          It also set out the basis of his Article 8 claim and took into account the submissions provided from Malik law Chambers from their letter as summarised above.

34.          It was stated that his deportation was conducive to public good and in the public interest because he had been convicted of an offence for which he been sentenced to imprisonment of at least four years therefore in accordance paragraph 398, of the Immigration Rules, the public interest required his deportation unless he could show "very compelling circumstances", over and above those described in the exceptions of deportation set out at paragraph 399 and 399A.

35.          The respondent considered that there were no "very compelling circumstances" and that there was significant public interest in deporting him because:

                It was not accepted that he was socially and culturally integrated in the UK because he was convicted of criminal offences;

                The criminal offences were committed for monetary gain;

                He used threats towards the victims to make them comply with his demands for money;

                He used imitation firearms, threatened to shoot the victims and threatened them with acid and stated he had a bomb;

                The victims would have been in fear of their lives and very traumatised and

                this established a pattern of violent offending behaviour;

                He had been assessed of being a high risk in the community to the public and medium risk to children;

                He committed further offences whilst on police bail and this was indicative of his disregard for the laws of the UK;

                At the time of the arrest he was in receipt of employment support allowance therefore he was not making a positive contribution to UK society;

                It was stated that he suffered from mental health problems but had not submitted any evidence to support this claim. The medical records from the prison stated that he was not being prescribed any medication and was fit to fly.

36.          It was not accepted that there would be very significant obstacles to his integration to Pakistan because;

                he was an adult and was considered to be able to live independently,

                whilst he had not lived in Pakistan since he was a baby it was considered that he would have been exposed to Pakistani culture and therefore would be able to adapt to life in Pakistan

                he did visit Pakistan in 2004 when 14 years of age and had some knowledge of life in Pakistan

                when considering the claim that he would be homeless, his family could continue to support him in the way that they have done in the UK;

                family members could travel to Pakistan to assist in with his integration in the country;

                he was employed as a driver/operative and could use those skills acquired to obtain employment in Pakistan.

37.          As to family ties, it was noted that his father, mother brother and two sisters lived in the UK. Relationships with adult applicants and parents and siblings does not constitute family life without evidence of further elements of dependency beyond normal emotional ties and the appellant had not demonstrated that any such dependency existed. The appellant stated that his family had given him support and guidance and help with stabilising him at this difficult time when he went "on the wrong path". The respondent did not think that was demonstrated in view of the fact that he had committed very serious offences which had resulted in a sentence of six and half year's imprisonment.

38.          He stated that he did not speak the Pakistani language however he was raised by his mother and father who both requested an Urdu interpreter at the time of their respective immigration appeals. It was therefore considered that he would be familiar with the language in Pakistan and able to communicate on his return.

39.          There was significant public interest in deporting the appellant because of his criminality; he had received convictions for robbery, attempted robbery and possessing controlled drugs and possessing imitation firearms and committing offences. There has been an escalation of the seriousness of his offending and his been assessed as a high risk in the community of causing serious harm to the public.

40.          He had not provided evidence of a very strong Article 8 claim over and above the circumstances described in exceptions to deportation.

The appeal before the First-tier Tribunal:

41.          The appellant's solicitors issued grounds of appeal on the 22 nd January 2018.

42.          On 18 April 2018 the appellant's appeal was heard by the First-tier Tribunal.

43.          At paragraph 13 he set out the factual and legal issues which were not in dispute-

(1)           the appellant is a foreign criminal within the meaning of section 117D (2) of the 2002 Act;

(2)           the appellant had been lawfully resident in the UK for most of his life and

(3)           the appellant could not and was not seeking to rely on exception 2 in section 117C (5) of the 2002 Act.

44.          At paragraph 14 the judge identified the issues that remained in dispute:

(1)           whether the appellant was socially and culturally integrated into the UK (section 117C (4) (b) of the 2002 Act);

(2)           whether they would be very significant obstacles to the appellant's integration into Pakistan if he were to be deported (section 117C (4) of the 2002 Act) and

(3)           whether the appellant could demonstrate "very compelling circumstances" over and above those described in exceptions one and two (section 117C (6) of the 2002 Act).

45.          After setting out the relevant law, the judge made reference to the factual issues that were in dispute at paragraph 21. He identified that the factual disputes between the appellant and the respondent were limited to whether the appellant could speak Urdu and whether he had any connection to Pakistan and whether he suffered from depression.

46.          At paragraphs 22 - 32 the judge set out his findings of fact.

47.          They can be summarised as follows:

                the appellant speaks English and Urdu. He speaks that language at home with his mother. The appellant's written evidence stated the did not speak any Pakistani language. His sister in her written evidence stated that the appellant did not speak any Pakistani language fluently. Both departed from those assertions in evidence in chief and accepted that he does speak Urdu as well as English.

                The appellant had a maternal grandmother and grandfather living in Lahore aged 89 years of age and had mobility issues. He had two maternal uncles in Pakistan. One of those uncles lives with his maternal grandparents in Lahore with his wife and children. He cares for the grandparents and he is aged 50 to 55 years of age.

                His maternal relations in Pakistan speak Urdu and are Muslims.

                The appellant's mother is in contact with her parents and she has contact with her brothers.

                The appellant's sister H is in contact with her maternal grandparents every month or so.

                The appellant asserted that he did not have connections with Pakistan "in any manner whatsoever". His sister H was asked to explain why she did have contact with family in Pakistan when he did not. She explained this only by stating "he doesn't feel connected to them... He's never focused on relations in Pakistan... He's really not connected.". At [29] the judge stated that he did not find that explanation sufficient; it did not explain why he did not feel connected and was not sufficiently detailed. The judge recorded that the appellant did not offer an explanation himself. His mother simply asserted that he had no connections with her family in Pakistan. In the absence of a satisfactory explanation and having found that the appellant's mother and sister were in contact with family in Pakistan, he was not satisfied that the appellant had demonstrated that he had no contact with maternal family in Pakistan. The judge found that he did have at least some contact with them (at [31]).

                As to his assertion that he suffered from depression. The appellant accepted that he was not taking any medication for that condition nor did he produce any medical evidence to corroborate that assertion. The medical material in the bundle at J1 - J3 did not refer to any diagnosis of depression or any prescription. The judge who sentenced him in 2016 had a psychiatric report and this revealed that he was addicted to gambling and that he had carried out offences to frighten staff into handing over money. The judge was not satisfied that he proved the civil standard that he was suffering from depression (at [32]).

48.          The judge then considered the relevant factors at paragraphs 33 - 61 of his decision.

49.          As to the seriousness of the appellant's offences (section 117C(2)) at paragraphs 33 - 36) the judge summarised the criminal offences which had resulted in a total period of imprisonment of 6 ½ years and expressly took into account the sentencing remarks which was set out in full at G1 - 11 of the respondent's bundle.

50.          He concluded at [37] that the appellant's offences are "plainly very serious". He stated that: "The total sentence is 2 ½ half years greater than the four years which Parliament has determined requires the appellant's deportation unless he can show very compelling circumstances over and above Exceptions 1 and 2." The judge also observed that if the appellant had not pleaded guilty at the first reasonable opportunity, the sentence would have been somewhere around nine years.

51.          As to the issue of whether the appellant was socially and culturally integrated into the UK, at paragraphs 39 to 40 the judge was satisfied that he had proved to the required standard that he was culturally and socially integrated into the UK for the following reasons;

                he had been in the UK since he was 14 months of age,

                he had been in the UK for all but 14 months of his 28-year life,

                his primary and secondary education was in the UK,

                he had completed a plumbing apprenticeship and other training and been employed in the cleaning industry between 2012 and 2016,

                he had paid tax and national insurance contributions,

                he spoke English.

The judge rejected the respondent's argument that the convictions he had meant that he was not culturally and socially integrated into the UK based on the above findings.

52.          As to the issue of whether there were very significant obstacles to his integration into Pakistan, the judge was not satisfied that he had proved to the required standard that there would be very significant obstacles.

53.          His reasoning is set out at paragraphs 41-52.

                He has only returned to Pakistan on one occasion having spent his entire life, save for 14 months in the UK

                the appellant can speak Urdu which is spoken in Pakistan and by the appellant's family and he can also speak English which is spoken in Pakistan. The appellant is bilingual, and this will facilitate his integration into Pakistan.

                The appellant has family in Pakistan and has at least some contact with them;

                they will be able to advise and assist him so he can be enough of an insider to have a reasonable opportunity to be accepted in Pakistan;

                their guidance will assist the appellant to build up in a reasonable time of variety of human relationships, over and above relationships with his family in Pakistan to give substance to his private and family life.

                He will have contact on arrival in Pakistan and whilst the grandparents were elderly and had mobility issues, they will not need to assist a relatively fit and healthy young man physically;

                even if that was incorrect and he did not have contact with his family in Pakistan, his mother and sister are in contact with their relatives. "It is inconceivable that they would not urge their relatives to assist the appellant once he arrived and put him in touch with them."

                He would not lose contact these family in the UK although it was accepted that contact will not be so close. Modern communications would enable them to provide support and encouragement from the UK and they could visit him in Pakistan. They had maintained a relationship with him during the significant period he was in custody. They could do so again, even over the greater geographical distance.

                The appellant is educated to secondary level and her skills as a plumber and in security; those skills could be deployed to facilitate his integration into Pakistan.

                He follows the Islamic faith which is widely followed in Pakistan and by his family;

                he is not suffering from depression and does not have any health issues which would act as a very significant obstacle.

54.          The judge found that exception 1 (section 117C (4)) could not apply because he needed to meet all three conditions (a)-(c). He could not meet condition (c) for the reasons set out above.

55.          The Judge considered whether the appellant could demonstrate very compelling circumstances over and above those described in Exceptions 1 and 2.

56.          The judge set out the law at paragraphs 54 - 56 and making reference to the decision of the Supreme Court in Hesham Ali.

57.          He identified the following factors which gave weight to the public interest in the deportation of the appellant:

                the appellant is not presently financially independent (S117C (1))

                Parliament has expressed its view clearly - the deportation of foreign criminals is in the public interest (Section 117C (1))

                the appellant's offences are very serious in nature and number (S117C (2))

                exception 1 does not apply in the appellant's case (section 117C (4))

                the appellant accepts that exception 2 does not apply in his case (section 117C (5)).

58.          On the appellant's side of the scales the FtTJ identified the following factors st paragraph [58]:

                He has been resident in the UK for all 28 years of his life save the first 14 months;

                his residence had been lawful

                he would have been entitled to British citizenship had he chosen to apply

                he was socially and culturally integrated into the UK

                those factors above contributed considerable weight to his claim

                he can speak English (section 117B (2))

                he might become financially independent

                his parents and siblings are in the UK, as are his friends and associates.

59.          At paragraphs 59 - 61 the judge weighed very carefully all the factors; the public interest factors against the factors contributing weight to the appellant's Article 8 claim and had not treated anyone factor as a "trump card" but reached the conclusion that he had not demonstrated that there were "very compelling circumstances" to outweigh the public interest given that the public interest in deportation in the appellant's case is "clear and powerful". His claim, whilst it did have weight and strength did not have sufficient strength and weight to outweigh the clear and powerful public interest in his deportation.

The legal framework

60.          There is no dispute as to the legal framework that applies to this appeal.

61.          The Secretary of State's power to deport non-UK nationals derives from section 3 (5) of the Immigration Act 1971 (as amended), which reads, so far as material:

"A person who is not a British Citizen is liable to deportation from the United Kingdom if -

(a) the Secretary of State deems his deportation to be conducive to the public good; or

(b) ..."

62.          The UK Borders Act 2007 provides for a regime governing the deportation of non-nationals who are convicted in the UK of criminal offences. Section 32 reads, so far as material, as follows:

"(1) In this section "foreign criminal" means a person -

(a) who is not a British citizen,

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

(c) to whom Condition 1 or 2 applies.

(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3) ...

(4) For the purpose of section 3 (5) (a) of the Immigration Act 1971 ..., the deportation of a foreign criminal is conducive to the public good.

(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).

(6) - (7) ..."

63.          Section 33, as referred to in section 32 (5), contains a number of exceptions to the obligation on the respondent to deport a foreign criminal. On this appeal only Exception 1 is relevant, which, by sub-section (2), applies "where removal of the foreign criminal in pursuance of the deportation order would breach (a) a person's Convention rights, or (b) ...".

64.          The consideration by a court or tribunal of whether a decision made under the immigration legislation is in breach of the rights of any person under article 8 is subject to the provisions of Part 5A of the Nationality, Immigration and Asylum Act 2002, which was introduced by the Immigration Act 2014 with effect from 28 July 2014. Section 117A (2) provides that in considering whether an interference with a person's right to respect for their private and family life is justified under article 8 (2)

"the court or tribunal must (in particular) have regard-”

(a) in all cases, to the considerations listed in section 117B, and

(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C".

65.          Section 117B reads:

"(1) The maintenance of effective immigration controls is in the public interest.

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-

(a) are less of a burden on taxpayers, and

(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-

(a) are not a burden on taxpayers, and

(b) are better able to integrate into society.

(4) Little weight should be given to-

(a) a private life, or

(b) a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.

(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom."

66.          Section 117C reads:

"(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."

67.          The deportation of foreign criminals is the subject of Part 13 of the Immigration Rules. Its core provisions - paragraphs 398-399A are replicated in substance by those of section 117C (3)-(6).

Paragraph 398 reads as follows:

"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."

68.          We need not set out paragraph 399 since it is concerned with the case where the person facing deportation has a partner or a child. It is common ground that the appellant is a single man with no children.

Paragraph 399A reads:

"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.

69. On the facts of this appeal, the appellant has been convicted of offences for which he received a sentence in excess of 4 years and therefore the public interest requires his deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

The appeal before the Upper Tribunal:

70. Mr Alam of Counsel appeared on behalf of the appellant and Mr Lindsay on behalf of the respondent. When permission was granted by Designated Judge Shaerf on 29 June 2018 he granted permission on the proviso that at the error of law hearing, the appellant's solicitors must be prepared to substantiate the allegations made.

71. In compliance with those directions a bundle was filed on 5 October 2018 which included the grounds for permission but importantly a witness statement from the appellant's sister, and other documentary evidence. We note that in that bundle there was no witness statement from the appellant himself although there was a letter at page 21. This did not make any explicit reference to any procedural unfairness.

72. A further bundle of documents was sent to the Tribunal by way of email on the afternoon of 10 June 2019 comprising of medical records, witness statement and a list of courses attended by the appellant. Given the lateness of this material, Mr Lindsay confirmed that he had not seen that material and nor had Mr Alam. Copies were therefore made for each of the advocates and they were given the opportunity to consider them. Although they were not served and filed in accordance with the directions, given the issues that were under consideration, we were satisfied that we should admit them as part of the evidence.

73. At the outset of the hearing Mr Alam told us that he was not seeking to call any oral evidence in respect of the allegation made against the appellant's former legal representatives. However, he reconsidered this and made an application that we should hear oral evidence from the appellant's sister relevant to the issue raised in ground one. We acceded to that request because we considered that where procedural fairness is an issue, the parties should be entitled to provide any evidence in support.

The evidence of H:

74.          We therefore heard oral evidence from H who the appellant's sister. As previously directed, she had provided a witness statement dated 5 October 2018 at [AB16]. Mr Alam confirmed that he relied on the first seven passages of the witness statement which he said went to the issue of procedural unfairness. She adopted the contents of that statement as her evidence in chief after having had the opportunity to reread it and confirm the accuracy of its contents. No further questions were asked in chief.

75.          We summarise that statement as follows. The witness confirmed that Malik Law Chambers represented the appellant at the hearing before the FtT but that they did not consult the appellant, her mother or her in drafting the witness statements and that during the time that they represented the appellant, they were never contacted or asked provide evidence (see paragraph 2).

76.          In respect of the witness statement it was said that those which were drafted by MLC contained inaccurate information "having no input from us except some general notes" which she had sent when they had been appointed.

77.          At paragraph 3 the following was stated "the evidence we have now was not submitted in the FtT hearing as Malik Law did not maintain communication and did not liaise with me at all. I maintained communication, but my input and help were not used."

78.          At paragraph 4, the witness made reference to calling the solicitors on their landline, that she would be on hold 20 minutes and then the line would cut off automatically and this would happen daily. She stated that they refused to provide her with their mobile numbers and most of the time would not reply to the emails. She also made reference to visiting the office was told that the solicitor was busy with a client.

79.          At paragraph 5 she makes reference to the material that was inaccurate in the witness statement and referred to the fact that it was said that the appellant could not speak his mother tongue which is Urdu which was incorrect.

80.          At paragraph 6 she set out the both her and a mother were asked to sign the witness statements and to email them back a few hours before the FTT hearing. The appellant did not sign the witness statement as he was in prison.

81.          At paragraph 7 she refers to "what was previously missing from the FtT hearing was information about his mental health, his sexuality, the appellant's mother's health information and information about relatives and Pakistan.

82.          She was cross-examined by the presenting officer. She was asked if the appellant was represented by a barrister at the hearing and she confirmed that he was and gave the barrister's name.

83.          As to the circumstances in which the witness statement was signed, she accepted that she had signed the witness statement (as being true) but stated that she was told to sign and send it back. When asked if she had signed a witness statement on the same day as the hearing, she said "I signed the witness statement the previous day." When it was put to her that this was inconsistent with her witness statement and that she had said that she had signed with this statement on the day before the hearing, she changed her evidence and stated that she had signed the witness statement later in the afternoon on the day before.

84.          When asked if Counsel had asked similar questions about the witness statement, she stated "he asked us about the witness statements and read it and we were very happy because there was incorrect information there; it said he couldn't speak Urdu and that was incorrect." She was asked to state at what point she had told Counsel of the inaccuracies and the witness stated, "just before the hearing and he discussed this, and we told him we were not happy with the witness statement." She confirmed in evidence that she had informed Counsel of her unhappiness with the witness statement outside court before the hearing. She also stated that she was given the chance to amend the witness statement when giving evidence. When asked to state what Counsel had said to her when she had told him that she was unhappy, the witness replied "he said he would discuss it with the judge, and I think he asked if the appellant could speak Urdu".

85.          When asked if Counsel had said that they should apply for an adjournment she stated "no, he went ahead, and we gave evidence." It was put to her that after she had given the chance to amend her witness statement that she must have told the judge that the evidence that she relied upon was correct and complete and she replied "yes".

86.          As to problems of giving instructions, it was put to her that as the appellant was the client of MLC, they would necessarily take instructions from him and not her unless the appellant provided a letter to say that she was acting for him. In reply to this, she stated that as he was imprisoned, she was acting on behalf of him, but she confirmed in her evidence that she had nothing to say in writing or otherwise to state that she was acting for him.

87.          In re-examination, Mr Alam referred to a document page 25 of the appellant's bundle which was a letter addressed to the appellant but sent "care of" to the appellant's sister.

88.          No further oral evidence was called.

89.          We are grateful to the submissions we heard from Mr Alam and Mr Lindsay on the issues that arise in the grounds advanced on behalf of the appellant. We confirm that we have considered those submissions in accordance with the skeleton arguments produced and the grounds which had been filed before the Upper Tribunal. We further confirm that we have given full consideration to those submissions which we heard, and we intend to incorporate those submissions into our analysis of the two grounds that are relied upon by the appellant.

Ground 1: procedural unfairness:

90.          The first ground is that of procedural unfairness. Whilst the submission made by Mr Alam referred to procedural unfairness at the hearing of the appellant's appeal, in reality this submission was based on procedural fairness on the basis that it is asserted that the appellant was badly served by his previous representatives and accordingly he did not have a fair hearing.

91.          Mr Alam submitted that in the context of this appellant's hearing, the procedural fairness point related to the ability of the appellant being able to present his case fairly. He submitted that the evidence given by the appellant's sister was that the solicitors instructed had not advised them correctly concerning the submission of relevant documents, including the witness statements, and because of their incompetency there was evidence that was not taken into account.

92.          In respect of the witness statements, they had not been consulted when the statements were finalised and had been sent to the FtT and therefore they did not include all the relevant information. The appellant had not seen or signed a statement before it was sent to the FtT and that the witness statements were sent to the appellant's sister and mother the day before the hearing, which they signed and then sent back.

93.          In his submissions he identified that the issues included matters relating to the appellant's depression, the mother's medical condition and the appellant's rehabilitation. He further submitted that they were relevant to the issue of "compelling circumstances".

94.          In respect of the appellant's depression, he submitted that it was one of the main issues before the FtT as identified in the judge's determination at paragraph 21 and that it was the appellant's evidence and that of his family members, that he suffered from depression. He submitted that this was a relevant point when looking at compelling circumstances, for example, that the appellant may have been depressed when committing the offence. He submitted that his depression was referred to in the statement of additional grounds (and in the grounds of appeal) but that despite that, they did not seek to advise the appellant to seek medical evidence to support his claim. He made reference to the new bundle of evidence which included medical notes from the prison hospital which made reference to his suffering from depression.

95.          He made reference to the evidence of the appellant's sister and submitted that she had given credible evidence in respect of the circumstances and her dealings with the solicitors and the attempt that she had made to contact them. He further submitted that the whole argument proceeded on the basis that the appellant and the family members were not given the opportunity to produce appropriate evidence or documents that were necessary to present their case.

96.          Mr Alam did not produce a copy of the decision of the President in MM (unfairness; or the E and R) Sudan [2014] UKUT 105 but relied upon the summary set out in the grounds at paragraphs 7 to 9 and in the skeleton argument which stated as follows;

"Mr Justice McCloskey in the judgement of MM on the subject of procedural fairness amounting to errors of law considered the key question of whether an appealable error of law can arise through no fault on the part of the judge held as follows:

1.              where there is a defect or impropriety of a procedural nature in the proceedings at first instance, this may amount to material error of law requiring the decision of the first-tier Tribunal to be set aside.

2.              A successful appeal is not dependent on the demonstration of some failing on the part of the FTT. Thus, an error of law may be found to have occurred in circumstances where some material evidence, through no fault of the FTT was not considered with resulting unfairness ( E and R v SSHD [2004] EWCA Civ 49."

97.          He submitted that in the decision of MM, neither party included a letter sent to the respondent which was central in establishing the appellant's credibility to the First-tier Tribunal. He reiterated in his submissions that when applied to this case, it was not the fault of the FtTJ but that that did not matter and that the point emphasised was that the judge's conduct of the hearing was not to be evaluated by reference to a test of reasonableness or fault but that common law fairness is of a quite distinct hue and unfairness is not dependent on demonstrating either.

98.          He therefore invited us to find that there was a material error of law in the decision of the FtTJ and whilst it had arisen through no fault on the part of the judge, it was sufficient to set aside the decision of the First-tier Tribunal.

99.          Mr Lindsay on behalf of the Secretary of State submitted that there were a number of evidential deficiencies in the submissions made, which when taken together, would mean that the appellant's claim failed on the ground of procedural fairness.

100.      Firstly, he identified that there was no evidence from Counsel who would been instructed in the form of a witness statement or even the disclosure of his record of proceedings and given the seriousness of the allegations raised and in the context of the witnesses evidence, that the deficiencies were discussed prior to the hearing, the absence of the evidence alone was fatal to the appellant's case.

101.      He submitted that the oral evidence of the witness was that she had notified Counsel and that she had been given a suitable opportunity to amend the witness statement and to confirm to the judge that her evidence as amended was correct and complete and in those circumstances it was not open to the appellant to allege that there was procedural unfairness. There was not even a bare assertion from the appellant that he had no such opportunity.

102.      Secondly, he identified that there was no admissible evidence as to why MLC had been shut down and importantly there was no evidence that any of the legal representatives involved had been behaving dishonestly on behalf of this appellant.

103.      Thirdly, there was no evidence that the appellant's sister was authorised to act on the appellant's behalf and the letter at page 25 of the bundle did not assist in establishing this issue.

104.      Furthermore, even following the directions there was no evidence that pre- dated the FtT hearing which established that the appellant was suffering from depression. He submitted that even at the date of the hearing, the material showed that the records were printed on 2 November 2018 and the earliest date of the records is 31 August when the hearing took place in April 2018. The records, he submitted, reflected what the appellant had told them. He submitted that the judge was aware of the issue and properly and fairly dealt with it at paragraph 31.

105.      At its highest, the witness's assertion at paragraph 17 is that he had been anxious for the last four years but does not say that she was aware before the FtT that he had depression and thus at its highest it was an assertion in the witness statement and she accepted that she had said everything she wanted to say before the FtTJ. He submitted that even taken at its highest, the appellant's witness stated that the issue of the medical report was something that the solicitors should have told him about but there is no assertion that the solicitors told him that they did not need to obtain such evidence. In any event the appellant could have sought an adjournment via Counsel.

106.      We have considered those submissions in the light of the relevant legal principles identified by Mr Alam in the decision of MM (as cited). There can be no dispute that when considering procedural fairness amounting to an error of law, such errors can arise through no fault on the part of the judge and that a successful appeal is therefore not dependent on the demonstration of some failing on the part of the judge and thus an error of law may be found to have occurred in circumstances where some material evidence was not considered with resulting unfairness.

107.      The following principles of procedural fairness were distilled by the President in MM from the decision of the Court of Appeal in R v Chief Constable of Thames Valley police ex parte Cotton [1990] IRLR:

"(1) The defect, or impropriety, must be procedural in nature. Cases of this kind are not concerned with the merits of the decision under review or appeal. Rather, the superior court's enquiry focuses on the process, or procedure, whereby the impugned decision was reached.

(2) It is doctrinally incorrect to adopt the two-stage process of asking whether there was a procedural irregularity or impropriety giving rise to unfairness and, if so, whether this had any material bearing on the outcome. These are, rather, two elements of a single question, namely whether there was procedural unfairness.

(3) Thus, if the reviewing or appellate Court identifies a procedural irregularity or impropriety which, in its view, made no difference to the outcome, the appropriate conclusion is that there was no unfairness to the party concerned.

(4) The reviewing or appellate Court should exercise caution in concluding that the outcome would have been the same if the diagnosed procedural irregularity or impropriety had not occurred."

108.      We also remind ourselves of the decision in Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 197(IAC). The facts of that decision are not material, but the Tribunal set out the following:

"x) The amended grounds do not criticise the judge for his handling of the case and reveal no basis for doing so. Although it is an error of law if there has been no fair hearing, it will normally be through disputed decisions of the judge that a complaint of unfairness arises.

xi) Although we do not rule out that unfairness could be established through the incompetence of the advocate, there is a high threshold to establish. It is not sufficient that the advocate exercised forensic judgment that the appellant now disagrees with or has subsequently proven to be unfortunate. Some regard may be relevant to the test in the Court of Appeal Criminal Division where conduct by the advocate is relied on as a ground to challenge the safety of the conviction (see Archbold 2012 7-83). Although the criminal courts are now concerned primarily with the impact of the failure of the advocate on the trial process, there must be demonstrated incompetence such as a course of action that no reasonable advocate would have taken. The allegations against counsel appearing on 30 March nowhere reached that standard.

xii) Just as in criminal appeals, if the appellant mounts criticism of a representative, legal privilege must be expressly waived and draft statements and conference notes relevant to the case should be disclosed. This was not done in the present case. We have no explanation for the differences in account and why the appellant behaved as he did at the appeal and what he intended to say if any different from what the judge recorded him as saying. In any event, where credibility is in issue his complaint may not carry weight if it is evidentially unsupported.

xiii) Where fresh evidence such as medical evidence comes to light after the hearing, this should normally be the basis of fresh representations rather than support an error of law in an otherwise properly determined appeal."

109.      It is against that background that we have considered the written grounds and the submissions advanced by Mr Alam. The basis of the argument based on procedural fairness consists of two complaints, firstly the way in which the solicitors prepared the witness statements which included preparing them without consulting the authors of them and not including all the relevant information and secondly, failing to advise the appellant that he was required to seek medical evidence about his depression. The grounds at paragraph 6 describe that evidence as a "determinative factor in the appellant's appeal."

110.      We observe in respect of the second issue, that there is no evidence before the Tribunal from the appellant by way of a witness statement in support of that allegation or any of the matters which have been alleged.

111.      Dealing with the first complaint, we have given careful consideration to the oral evidence that we have heard from the appellant's sister but having considered the witness statement and its contents, we do not conclude that there has been no consultation or instructions taken, given its contents and the substantial grounds of appeal, upon which reliance is placed by Counsel during this hearing.

112.      We accept that the witness statements were sent unsigned before the signed copies, which formed the second bundle before the FtTJ (we refer to paragraph 10 of the decision). However, we do not find that paragraph 4 of the grounds is consistent with the oral evidence of the appellant's sister. It is asserted there that the parties were not given the opportunity to disagree with parts of the information included in the witness statements. That is contrary to the oral evidence that we have heard. The witness stated that she had informed Counsel before the hearing of the problems and informed him of the incorrect information (relating to language) and it was discussed outside of the courtroom. Her evidence was that after she had identified a problem with the witness statement, she was given a suitable opportunity to amend that and confirmed to the judge the evidence that was contained in it was then correct. This is consistent with the judge's determination at [23] in which he recorded the evidence as to language and that whilst in the written evidence the appellant stated that he did not speak any Pakistani language and that his sister stated that he did not speak any Pakistani language fluently, both departed from those assertions in their evidence in chief. It is also consistent with the record of proceedings produced by Mr Lindsay from the presenting officer in attendance where it was recorded "the appellant and sister gave evidence in English, his mother in Urdu. This necessitated the amendment of their various witness statements."

113.      We are also satisfied that paragraph 2 of the grounds appear to misstate the effect of the amendment of the witness statement. In the light of the evidence of the appellant's witness, who stated that she identified prior to the hearing that there was incorrect information about the appellant's language ability and accepted that she had an opportunity to amend the witness statement before the hearing, she confirmed that it was amended at the stage of proceedings when giving evidence in chief. It is therefore not been established that any alleged misconduct gave rise to the judge's finding that there was inconsistent evidence.

114.      Consequently, we do not find that it is been established that there was any procedural unfairness given that the appellant's sister was given the opportunity to amend the witness statement in relation to the issue of language and in fact did so, and it appears that the appellant was also given a similar opportunity. We do observe however that there has been no evidence given on behalf of the appellant and as Mr Lindsay submitted, there is not even a bare assertion made by the appellant that he had no such opportunity.

115.      Mr Alam sought to rely on other issues. He identified that information concerning the appellant's mother's ill-health was missing. However, in the appellant's mother's witness statement the effect of her son's deportation was set out at both paragraphs 8 and paragraph 10. The witness statement of the appellant's sister at paragraphs 14, 21 and 24 all make reference to the negative impact on the appellant's mother who was being described as "frail and anxious" and that "her suffering and had an impact on the whole family".

116.      As to the issue of the appellant's depression, Mr Alam submitted that this was an important issue and one that it been identified at paragraph 21 of the FtT's decision and had been set out by the legal representatives in the grounds of appeal that the appellant had "mental issues" and was supported in the UK by his family.

117.      We have considered the contents of the witness statements and contrary to the assertion that they do not set out the relevant matters, both the witness statements of the appellant and that of his mother make reference to depression and mental health at paragraphs 16 (appellant's witness statement) and paragraphs 11 and 12 of his mother's witness statement.

118.      In the light of the oral evidence where the witness stated that she and her brother were given the opportunity to amend their witness statements, further oral evidence could have been provided. In the case of the appellant, the determination records that he did give oral evidence concerning his depression and at paragraph 31, his evidence to the judge was that he was not taking any medication for his depression and the medical material in the bundle J1 - J3 did not refer to any diagnosis of depression or any prescription for medication. The material referred to by the judge consisted of a patient summary from the hospital prison and under "active major problems" no information was recorded. At J1 it was recorded that he was currently not on prescribed medication (dated 2 November 2017). Therefore, the evidence before the judge both historically and at the date of the hearing, was consistent-that the appellant was not taking any medication for his depression, if that had indeed been diagnosed. The judge also made reference to the psychiatric report at [31] which revealed that the appellant was addicted to gambling and carried out the offences to frighten staff into handing over the money. We have not been provided with a copy of that report, but no submissions have been made that that report made reference to any depression. It is likely that the report was commissioned as a result of the appellant having committed offences of robbery which are specified offences and would require the sentencing judge to consider the issue of dangerousness. However, we can make no further comment upon that report.

119.      Mr Alam has sought to rely upon new evidence which is set out in the bundle sent yesterday to the Tribunal. Despite the late service of the material, we admitted it into evidence in the light of the issues raised. However, we accept the submission made by Mr Lindsay that the material relates to recent complaints of depression and anxiety and are recorded from August 2018. None of that evidence predates the hearing nor can it be said to allude to the circumstances either prior to or contemporaneously at the time of the hearing. At page 5 of those notes, there is reference to the appellant not being on any medication and that he had not been prescribed anything in the past including from his GP, which is both supportive and consistent with the evidence given by the appellant to the FtTJ.

120.      We remind ourselves that there is a high threshold for complaints about the incompetence of previous representatives (see decision in Azimi-Moayed) It is in this context that notwithstanding what we have set out above, we are satisfied that there are further evidential difficulties which the appellant has not addressed.

121.      Firstly, we have been provided with no evidence from Counsel who represented the appellant at the hearing. As submitted by Mr Lindsay, it is unusual, given the circumstances of the procedural unfairness as alleged, that there is no evidence that Counsel had been approached provide a witness statement as to the events or had been asked to disclose any record of the proceedings that he had. That has more importance given the witness's evidence that she had told him before the hearing about any difficulties and that no application for an adjournment was made.

122.      Secondly, there is the absence of any evidence from Malik Law Chambers. In the decision of BT (Former solicitors' alleged misconduct) Nepal [2004] UKIAT 00311 at paragraph 5 the Tribunal stated:

"5. We wish to make it clear that, in general, we will not make a finding of fact based on an allegation against former representatives unless, first, it is clear that the former representatives have been given an opportunity to respond to the allegation which is being made expressly or implicitly against them, and secondly, we are either shown the response or shown correspondence which indicates that there has been no response".

123.      We accept that Malik Law Chambers have been closed down and thus it would be difficult to obtain evidence from the solicitors or for them to be given the opportunity to respond to the allegation. However, as we have set out above, there is no evidence from Counsel who was instructed by them to act on behalf of the appellant.

124.      Furthermore, and perhaps of more importance, there is an absence of any evidence as to why MLC was closed down. We accept the submission made by Mr Lindsay that the assertion in the skeleton argument at paragraph 7 entitled "reasons for SRA intervention" which makes reference to "reasons to suspect dishonesty on the part of the firms managers in connection with the firms business", has not been supported by any further evidence and there is no indication that either of those persons identified were involved in the appellant's case. Even if we were to accept that they did represent the appellant, there is no evidence that any legal representative behaved dishonestly on behalf of this appellant.

125.      Whilst we have no copies of any correspondence sent between the appellant's sister and the solicitors, we have no reason to disbelieve the evidence given by her when she stated that she had been ringing the solicitors and sending them emails. However, we have viewed that complaint in the context of the position that there is no evidence that the appellant's sister was authorised to act on behalf of the appellant. Whilst we accept that he has been in prison as a result of his offending since December 2016, there is no written evidence, either a copy of any letter sent to the solicitors or from the appellant himself, to demonstrate that his sister was acting or considered to be acting formally on his behalf. When assessing her evidence and her complaint that MLC did not take instructions from her and that they were "hard to get hold of", that evidence is equally consistent with the solicitors not discussing the case with her personally as she was not their client. They were not acting for the appellant's sister but for the appellant.

126.      Mr Alam has submitted that there is support for the appellant's sister acting on his behalf and has directed us to page 25 of the appellant's bundle. However, that document does not support his submission. This is a letter sent from solicitors acting from the appellant in his personal injury claim, (an event that post-dated the hearing by a number of months). It is sent to a C/o "care of" address but it is addressed to the appellant himself. Mr Lindsay asked us to take judicial notice that a letter sent c/o is a document sent to an address but the letter is still addressed to the person whose name is on the letter and that it does not give any authority for any other person to open the letter or to give instructions on it. Whether or not we take judicial notice of that fact, the letter is addressed to the appellant. In the absence of evidence and based on the evidence from the witness which was to the effect that she could not recall signing anything and there is nothing from the appellant to state that he did, the burden being on the appellant to adduce evidence, we cannot be satisfied that it has been demonstrated that the appellant's sister was acting on his behalf.

127.      There have been other issues that have been raised in a witness statement filed by the appellant's sister. Whilst it makes reference to certain information that is missing from the FtT hearing, it is plain from the letter exhibited at page 21 from the appellant that this had not been disclosed to anyone prior to the FtT hearing in April 2018 and thus does not support any procedural unfairness based on the alleged misconduct of the appellant's former representatives.

128.      Drawing together all of those factors, we have reached the conclusion that the appellant's principle ground falls short of establishing that there was procedural unfairness.

Ground 2:

129.      The second ground advanced on behalf of the appellant relates to the FtTJ's assessment of the evidence relating to a number of issues.

130.      It is submitted on behalf of the appellant that the FtTJ's assessment is marred by his own judgement that the offences committed by the appellant were "plainly very serious". It is further submitted that in this respect the FtTJ's findings are marred by irrelevant considerations as set out in paragraph 37 (see paragraph 14 of the written grounds in paragraph 20 the skeleton argument).

131.      We have considered that submission in the context of the evidence before the FtTJ. The judge addressed the offences and their seriousness at paragraphs 33 - 37 of his decision. In light of the particular facts of the offences committed as set out in the sentencing remarks and replicated in part at paragraphs 34 and 35 of the decision. The offences committed were offences of robbery, attempted robbery and possession of an imitation firearm at the time of committing offences. We conclude that the FtTJ's assessment of the offences as "plainly very serious" properly reflected that evidence.

132.      It is further asserted that the judge took into account an irrelevant consideration when stating at paragraph 37 that had the appellant not pleaded guilty at the first reasonable opportunity his sentence would been somewhere around nine years. It is submitted that this was irrelevant to the FtTJ's consideration as the appellant had pleaded guilty. However, that was a statement of fact which was entirely correct. We are satisfied that the reference made formed part of the general factual background and it has not been demonstrated that the reference made formed any material part of his assessment of proportionality. It did not add anything more to the FtTJ's assessment that the offences were "plainly very serious" and assessment which on the particular facts of this appeal was open to him. There is no error demonstrated in this approach.

133.      It is further submitted on behalf of the appellant that the FtTJ erred in law by failing to make a clear finding on a core element of the appellant's appeal which related to whether there were very significant obstacles to his reintegration to Pakistan. In this context it is submitted that the judge found there to be some contact with family in Pakistan when considering this issue but then went on to say at [46] "even if I was incorrect and the appellant himself does not have contact with his family in Pakistan his mother and sister, HR, are in contact with their relatives." It is submitted that the judge failed to make a clear finding as to whether the appellant had contact with his family in Pakistan which was central to the issue of integration and that whether or not the appellant's mother and sister are in contact with the family, that is irrelevant to the appellant's own integration. It is the submitted that it was the appellant's own ties that were the relevant consideration in the assessment of proportionality of removal.

134.      The FtTJ's reasoning on this issue set out at paragraphs 41 - 52 of its decision. To reach his conclusion he applied the definition of integration as set out in the decision of The Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 which cited to him by counsel on behalf of the appellant. The grounds replicate the relevant paragraphs that decision.

135.      It was in this context that the judge that out a number of relevant features by reference to the evidence, including his language [44], his education and employment skills [48], his religion [49] and his health [50].

136.      As to family links, they were considered at paragraphs 45 - 47 of the decision. In our judgement, the FtTJ did make clear findings of fact as to the retention of family links in Pakistan. There is no dispute that the appellant had extended family members living in Pakistan and this was reflected in the evidence at paragraphs 24 - 27. The appellant's maternal grandmother and grandfather, and two maternal uncles lived in Pakistan. The appellant's mother was in contact with her parents and had some contact with her brothers and the appellant's sister was said to be in contact with her maternal grandmother every month or so (see paragraph 27).

137.      At paragraphs 28 - 29, the FtTJ set out the appellant's evidence where he asserted that he had no connections with Pakistan. However the judge concluded from the evidence that his sister's explanation as to why she had contact with relatives in Pakistan, but the appellant did not, was not a sufficient explanation. He recalled also that the appellant did not offer an explanation himself in evidence (see [29)). It is recorded that his mother gave evidence which stated that he had no connections at all.

138.      It is against that background and in the absence of a satisfactory explanation and having found that the appellant's sister and mother were in contact with their relatives, the judge concluded that the appellant had not demonstrated that he did not have contact with the maternal family in Pakistan. This is a clear finding made by the judge and one that was evidenced-based. This led to the FtTJ's assessment at paragraph 45 that the appellant had family in Pakistan and that he had, at least, some contact with them. The FtTJ then applied that finding to the applicable test and stated "they will be able to devise a system so that he can be enough of an insider to have a reasonable opportunity to be accepted in Pakistan. The guidance will assist the appellant to build up in a reasonable time a variety of human relationships, over and above relationships with his family in Pakistan, to give substance to his private and family life. He will have contacts on arrival in Pakistan. I recognise that his grandparents are 89 years of age and that they have mobility issues. They will not need to assist a relatively fit and healthy young man physically."

139.      The finding at [46] was a finding in the alternative and that if the FtTJ's assessment was wrong (that is, the appellant himself did have no contact with his relatives) that the appellant's mother and sister, who the judge found to be in contact with the extended family, would be able to assist in this regard. He found that "it is inconceivable that they would not urge their relatives to assist the appellant once he arrived and put him in touch with them."

140.      We therefore conclude that the FtTJ did make a clear finding on this issue which was based on the evidence given to the Tribunal by the parties. The FtTJ had the opportunity of hearing the evidence from the parties involved and made findings of fact based on that evidence. We find no error as asserted in the grounds.

141.      The thrust of the second ground relates to the assessment of whether there were very compelling circumstances" over and above those described in Exceptions 1 and 2". Mr Alam submits that when assessing the appellant's right to respect the family and private life, the FtTJ was under duty to assess whether expulsion was justified under Article 8 (2) and that the FtTJ's conclusion at [60] "that the public interest in deportation in the appellant's case is clear and powerful" failed to give adequate consideration to the strength of the appellant's private and family life in the United Kingdom.

142.      In his submissions, Mr Alam submitted that the FtTJ failed to give adequate reasons for reaching the conclusion that there were no very compelling circumstances in this appellant's case.

143.      He identified the relevant factors as being the length of residence in the UK since the age of 14 months and that he had not returned to Pakistan save for a short visit in 2014 and that the judge had reached the conclusion on the evidence that the appellant was culturally and socially integrated in the UK. Other factors included those at [57] which included that the appellant's residence was lawful and that he would have been entitled to British citizenship had he chosen to apply. Against that background it is submitted that the judge failed to have regard to the "very serious" reasons required to justify expulsion as set out in the ECHR decision of Maslov v Austria [2008] ECHR 546.

144.      Mr Lindsay submitted that the judge properly set out the relevant factors which he recorded at paragraph [57] and that the judge was aware of the chronology of the case and the length of his lawful residence in the United Kingdom therefore there was no error in the FtTJ's approach.

145.      It is not in dispute that on the facts of this appeal, the appellant has been convicted of offences for which he received a sentence in excess of 4 years and therefore the public interest requires his deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

146.      The approach which tribunals should adopt was helpfully described by Hickinbottom LJ giving the judgment of the Court of Appeal in Secretary of State for the Home Department v KE (Nigeria) [2017] EWCA Civ 1382 , at [30] to [36]:

"30. The statutory provisions in sections 117A-117D are law (cf the Immigration Rules: see Ali at [17]). However, both section 117C and the relevant Immigration Rules set out policy, in the sense that they provide a general assessment of the proportionality exercise that has to be performed under article 8(2) where there is a public interest in deporting a foreign criminal but countervailing article 8 factors. The force of the assessment in section 117C is, of course, the greater because it directly reflects the will of Parliament. The statutory provisions thus provide a "particularly strong statement of public policy" ( NA (Pakistan) at [22]), such that "great weight" should generally be given to it and cases in which that public interest will be outweighed, other than those specified in the statutory provisions and Rules themselves, "are likely to be a very small minority (particular in non-settled cases)" ( Ali at [38]), i.e. will be rare ( NA (Pakistan) at [33]).

31. But the required, heavily structured analysis does not eradicate all judgment on the part of the decision-maker and, in its turn, the court or tribunal on any challenge to that decision-maker's decision. It is well-established, and indeed self-evident, that relative human rights (such as the right to respect for family and private life under article 8) can only ultimately be considered on the facts of the particular case. The structured approach towards the article 8(2) proportionality balancing exercise required by the 2002 Act and the Immigration Rules does not determine the outcome of the assessment in an individual case.

32. Whether an exception in paragraph 399 or 399A applies is dependent upon questions that require case-specific evaluation, such as whether in all of the circumstances it would not be reasonable for a child to leave the United Kingdom or whether in all of the circumstances there are insurmountable obstacles to family life outside the United Kingdom.

33. More importantly for the purposes of this appeal, where an offender has been sentenced to at least four years' imprisonment, or otherwise falls outside the paragraph 399 and 399A exceptions, the decision-maker, court or tribunal entrusted with the task must still consider and assess whether there are "very compelling circumstances" that justify a departure from the general rule that such offenders should be deported in the public interest. That requires the decision-maker to take into account, not only that general assessment (and give it the weight appropriate to such an assessment made by Parliament), but also the facts and circumstances of the particular case which are not -" indeed, cannot -" be taken into account in any general assessment. As Lord Reed, giving the majority judgment, said in Ali:

"49. ... It is necessary to feed into the analysis the facts of the particular case and the criteria which are appropriate to the context, and, where a court is reviewing the decision of another authority, to give such weight to the judgment of that authority as may be appropriate. In that way, relevant differences between, for example, cases where lawfully settled migrants are facing deportation or expulsion, and cases where an alien is seeking admission to a host country, can be taken into account.

50. In summary, therefore, the tribunal carries out its task on the basis of the facts as it finds them to be on the evidence before it, and the law as established by statute and case law. Ultimately, it has to decide whether deportation is proportionate in the particular case before it, balancing the strength of the public interest in the deportation of the offender against the impact on private and family life. In doing so, it should give appropriate weight to Parliament's and the Secretary of State's assessments of the strength of the general public interest in the deportation of foreign offenders..., and also consider all factors relevant to the specific case in question. The critical issue for the tribunal will generally be whether, giving due weight to the strength of the public interest on deportation of the offender in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed -" very compelling, as it was put in [ MF (Nigeria)] -" will succeed."

See also [53] to similar effect.

34. Therefore, as Lord Reed emphasises, whatever the seriousness of the offences or length of sentence, the ultimate question is the same -" would deportation be in breach of article 8 -" but the sentence imposed affects the approach to the exercise of assessing proportionality for article 8(2) purposes. If it is at least four years' imprisonment, any decision-maker must attach very considerable weight to the general assessment of the public interest in deporting foreign criminals, now directly adopted by Parliament in statute, under which such a sentence represents a level of offending in respect of which the public interest almost always outweighs countervailing considerations of private or family life, only being outweighed by countervailing factors which are very compelling (see Ali at [46]). Where there is a challenge to a decision involving the article 8(2) balancing exercise by a decision-maker on behalf of the Secretary of State in an individual case, as I have already described, the court or tribunal must give that general assessment substantial weight, because it is endorsed by Parliament; and it must also take into account -" but no more than take into account -" the application of that general assessment to the facts of the specific case by the original decision-maker ( OH (Serbia ) at [15(d)]). As independent judicial bodies, on hearing a challenge to an executive decision in an individual case, it is the duty of the court or tribunal to make its own findings of the relevant facts and then make its own assessment of the proportionality of the proposed deportation (Ali at [46]).

35. Since Ali, the 2014 Act has intervened, encapsulating the relevant Government policy in statute rather than merely Immigration Rules. However, in my view, the principles and approach expounded by Lord Reed still apply; although, in considering the appropriate weight to be given the assessment of the strength of the general public interest in the deportation of foreign offenders, any decision-maker, court or tribunal conducting the article 8(2) exercise has to bear in mind that that is now incorporated into statute, and so, even more starkly, reflects the will of Parliament."

147.      In NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, the Court of Appeal gave guidance on the application of section 117A(6), "where the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2". Jackson LJ, giving the judgment of the Court said:

"29. In our view, the reasoning of the Court of Appeal in JZ (Zambia) applies to those provisions. The phrase used in section 117C (6), in para. 398 of the 2014 rules and which we have held is to be read into section 117C(3) does not mean that a foreign criminal facing deportation is 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 2". As we have indicated above, a foreign criminal is entitled to rely upon such matters, but he would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 (and in paras. 399 or 399A of the 2014 rules), or features falling outside the circumstances described in those Exceptions and those paragraphs, which made his claim based on Article 8 especially strong.

30. In the case of a serious offender who could point to circumstances in his own case which could be said to correspond to the circumstances described in Exceptions 1 and 2, but where he could only just succeed in such an argument, it would not be possible to describe his situation as involving very compelling circumstances, over and above those described in Exceptions 1 and 2. One might describe that as a bare case of the kind described in Exceptions 1 or 2. On the other hand, if he could point to factors identified in the descriptions of Exceptions 1 and 2 of an especially compelling kind in support of an Article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could in principle constitute "very compelling circumstances, over and above those described in Exceptions 1 and 2", whether taken by themselves or in conjunction with other factors relevant to application of Article 8.

31. An interpretation of the relevant phrase to exclude this possibility would lead to violation of Article 8 in some cases, which plainly was not Parliament's intention. ...

...

33. 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 in deportation 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.

148.      In MS the President of the Upper Tribunal, Lane J (sitting in a panel with UTJs Gill and Coker) considered the correct approach to s. 117C(6) with the benefit of the guidance provided in KO (Nigeria) v SSHD [2018] UKSC 53 and NA (Pakistan) (supra), and said this:

"16. By contrast, the issue of whether "there are very compelling circumstances, over and above those described in Exceptions 1 and 2" is not in any sense a hard-edged question. On the contrary, it calls for a wide-ranging evaluative exercise. As NA (Pakistan) holds, that exercise is required, in the case of all foreign criminals, in order to ensure that Part 5A of the 2002 Act produces, in each such case, a result that is compatible with the United Kingdom's obligations under Article 8 of the ECHR.

17. Viewed in this light, it can readily be seen that the ascertainment of what constitute "very compelling circumstances", such as to defeat the public interest, requires a case-specific analysis of the nature of the public interest. The strength of the public interest, in any particular case, determines the weight that must then be found to lie on the foreign criminal's side of the balance in order for the circumstances to be properly categorised as very compelling. It would, frankly, be remarkable if a person sentenced to four years' imprisonment for fraud had to demonstrate the same circumstances as a person sentenced to life imprisonment for multiple murders.

18. To say this is not to seek to introduce a "balancing exercise" into Exceptions 1 and 2 and the test of "unduly harsh". The words "over and above", as interpreted by Jackson LJ in NA (Pakistan), underscore the difference in the tasks demanded by, on the one hand, section 117C (4) and (5) and, on the other, section 117C (6).

19. Furthermore, as Mr Pilgerstorfer pointed out, the effect of the judgment in NA (Pakistan), in bringing all foreign criminals within the ambit of section 117C(6), means that it is difficult to see how the test of very compelling circumstances can operate differently, depending upon whether the foreign criminal has, or has not, been sentenced to imprisonment of at least 4 years. In order for it to do so, yet further words would have to be assumed to be written into the section, over and above those mandated by the Court of Appeal's judgment.

20. For these reasons, despite Ms Patyna's elegant submissions, we find the effect of section 117C is that a court or tribunal, in determining whether there are very compelling circumstances, as required by subsection (6), must take into account the seriousness of the particular offence for which the foreign criminal was convicted, together with any other relevant public interest considerations. Nothing in KO (Nigeria) demands a contrary conclusion."

149.      The wide-ranging evaluative exercise required under s. 117C (6) clearly includes an application of the principles in the Strasbourg authorities. As NA (Pakistan) holds, the s. 117C (6) exercise is required to ensure compatibility with the UK's obligations under Article 8 of the ECHR. In addition, the judgment in NA (Pakistan), given by Jackson LJ, reads:

"29. ... The phrase used in section 117C (6), in para. 398 of the 2014 ... does not mean that a foreign criminal facing deportation is 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 2'. ... [A] foreign criminal is entitled to rely upon such matters, but he would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 (and in paras. 399 or 399A of the 2014 rules), or features falling outside the circumstances described in those Exceptions and those paragraphs, which made his claim based on Article 8 especially strong.

30. In the case of a serious offender who could point to circumstances in his own case which could be said to correspond to the circumstances described in Exceptions 1 and 2, but where he could only just succeed in such an argument, it would not be possible to describe his situation as involving very compelling circumstances, over and above those described in Exceptions 1 and 2. One might describe that as a bare case of the kind described in Exceptions 1 or 2. On the other hand, if he could point to factors identified in the descriptions of Exceptions 1 and 2 of an especially compelling kind in support of an Article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could in principle constitute 'very compelling circumstances, over and above those described in Exceptions 1 and 2', whether taken by themselves or in conjunction with other factors relevant to application of Article 8."

150.      In Maslov (supra), the Grand Chamber said this:

"71. In a case like the present one, where the person to be expelled is a young adult who has not yet founded a family of his own, the relevant criteria are:

-                 the nature and seriousness of the offence committed by the applicant;

-                 the length of the applicant's stay in the country from which he or she is to be expelled;

-                 the time elapsed since the offence was committed and the applicant's conduct during that period;

-                 the solidity of social, cultural and family ties with the host country and with the country of destination.

72. The Court would also clarify that the age of the person concerned can play a role when applying some of the above criteria. For instance, when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult (see, for instance, Moustaquim v. Belgium, judgment of 18 February 1991, Series A no. 193, p. 19, § 44, and Radovanovic v. Austria, no. 42703/98, § 35, 22 April 2004).

73. In turn, when assessing the length of the applicant's stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it evidently makes a difference whether the person concerned had already come to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult. This tendency is also reflected in various Council of Europe instruments, in particular in Committee of Ministers Recommendations Rec (2001)15 and Rec (2002)4 (see paragraphs 34-35 above).

74. Although Article 8 provides no absolute protection against expulsion for any category of aliens (see Üner, cited above, § 55), including those who were born in the host country or moved there in their early childhood, the Court has already found that regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Üner, § 58 in fine).

75. In short, the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile."

151.      Having considered the decision of the FtTJ in the light of the legal principles set out above, we are satisfied that the judge carried out an assessment as to whether the appellant could meet Exception 1, and this is reflected in his consideration of the factual circumstances. He found that the appellant had been lawfully in the UK for most of his life [58], that he was culturally and socially integrated in the UK (at [38 - 40]) and he considered that he had been in the UK lawfully for nearly all of his 28 years and that he been educated both at primary and secondary level and undertaken employment in the UK. He rejected the respondent's argument that his convictions meant that he was not socially or culturally integrated. However, in the light of his findings at [41 - 51] he did not find that there were very significant obstacles to his reintegration and therefore he could not meet the three conditions necessary under section 117 C (4).

152.      He then went on to consider whether he could demonstrate very compelling circumstances over above those set out in Exception 1.

153.      In his assessment he made reference to the "balance-sheet approach" and one which is commended in a number of decisions (see Hesham Ali at [84] and AS v SSHD EWCA Civ 417 at [16]17]) and set out the factors weighing in the public interest and those weighing on the appellant's side. Whilst we are satisfied that he set out the factors that he had previously found in the appellant's favour, there is no reference within the balancing exercise to any assessment or recognition of the Maslov criteria. His conclusion at [59] makes reference to having weighed carefully the factors involved but there is no recognition of the "very serious reasons" required to justify the expulsion of someone who was a settled migrant who had spent all of his childhood and youth and adult years in the host country (save for a period of 14 months). As recognised in the ECHR case law, such a settled migrant will have ties with the community that constitute part of the concept of their private life and whilst there is no absolute protection, a balance has to be struck with a proper appreciation of the special situation of those who have lived in the host country since childhood.

154.      In addition, this appellant could also rely on an additional factor which related to his ability to apply for British citizenship. While the judge made reference to this in the balance, there was no analysis of how that related to the appellants factual chronology (see the decision in Akinyemi v SSHD [2017] EWCA Civ 236) and therefore the relative weight that merited.

155.      A further issue identified in the grounds and relied by Mr Alam relates to the assessment of family life with his mother and siblings. It is submitted that the FtTJ failed to consider the relationship between the appellant and his other relatives (his mother and siblings) and whether this amounted to family life the purposes of Article 8 (1) of the ECHR. The appellant's case was that he had grown up without a father and had established a very strong bond with his mother and it been accepted by the respondent that the appellant, his mother and siblings that had to leave the matrimonial home due to domestic violence when the appellant was at a very young age. It is asserted that there was financial dependence on the appellant by his mother. It is not clear to us how there could be financial dependence upon the appellant given his offending history, but the issue of family life between the appellant, his mother and siblings was an issue raised both in the witness statements filed by the appellant and the family members notwithstanding the earlier submissions made that the statement did not adequately reflect the appellant's case.

156.      Furthermore, in the skeleton argument provided for the hearing it was expressly raised as an issue paragraph 12 (b) and by reference to the written material.

157.      Whilst the appellant's family members gave evidence before the FtTJ, there is no reference to any assessment of that issue. We cannot accept the submission made by Mr Lindsay that the H gave evidence before us that she had had the opportunity to say all she had wished to before the FtTJ, adequately addressed this issue. There is no assessment made as to the establishment of any family life. We recognise that the appellant is over the age of 18 years, but it is common ground that the appellant had remained living with his family members beyond reaching that age and in the context of the background that it is said was accepted by the respondent. We further recognise that when considering relationships between adults what is required is a demonstration that there are circumstances which go beyond normal emotional ties. However, on the face of the evidence, that was the claim advanced. In a case which did not include lawful long residence as set out on the particular facts of this case, such consideration may not be viewed as material to the outcome. However, as this was a further balancing factor which was not addressed in the overall proportionality balance and not a factor set out in the "balance-sheet" approach and was a relevant issue and linked to the issue of his social and cultural integration and his lawful residence. Whilst a settled migrant will have ties to the community and to the family which constitute part of the concept of private life, we recognise there is no absolute protection on that basis from expulsion but a balance has to be struck with a proper appreciation of the special situation of those in the host country since childhood and we are satisfied that that factor alongside with the issue relating to family life are factors which may have an effect on the overall balance, dependent on the factual assessment made.

158.      We are therefore satisfied that those errors as identified are material to the outcome as they are relevant to the balancing exercise and in this case whether there were "very compelling circumstances".

159.      In the ordinary course of events, we would consider the evidence on the issues and remake the decision ourselves. However, for the reasons we have referred to earlier in this decision, there is further evidence which the appellant would seek to rely upon including evidence relating to his mental health and the necessary findings in relation to the issue of family life which we have identified. In addition, the appellant, it is said, has made a protection claim to the respondent. We have no details as to what is happened in this respect. For those reasons, we reach the conclusion that the decision to dismiss the appeal should be set aside and should be reheard in the First-tier Tribunal. We do so on the basis that the findings of fact made which relate to his social and cultural integration into the UK at 38 - 40, the findings as to whether there are very significant obstacles to his integration at paragraphs 41 - 49 are findings which shall be preserved. In addition, further findings will be necessary relating to issues of mental health and family life.

160.      Whilst we have made an anonymity direction at this stage, whether it should be continued can be further addressed before the FtT in the light of any representations made.

Notice of Decision

The decision of the First-tier Tribunal demonstrates the making of an error on a point of law, it is set aside and shall be remitted to the FtT in accordance with the decision as set out above.

 

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or his family members. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

 

 

Signed Date 19/7/2019

 

Upper Tribunal Judge Reeds


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