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Reported Case

CI (Nigeria) v SSHD [2019] EWCA Civ 2027 – “Foreign criminals automatic deportation – meeting the very compelling circumstances threshold” (3 December 2019)

Date: 03/12/2019
Duncan Lewis, Reported Case Solicitors, CI (Nigeria) v SSHD [2019] EWCA Civ 2027 – “Foreign criminals automatic deportation – meeting the very compelling circumstances threshold”

In this case the Court of Appeal provided welcome guidance in relation to resisting automatic deportation of foreign criminals on “very compelling” grounds.

The Court of Appeal looked at the meaning and applicability of section 117C(4) and (6) of the Nationality Immigration and Asylum Act 2002: “lawful residence”; “social and cultural integration”; “very significant obstacles” to integration and “very compelling circumstances” (as mirrored in the Immigration Rules paras 398-399A).

Interestingly, the Court of Appeal also examined the interaction between Part 5A (sections 117A-117D)– “Article 8 of the ECHR: public interest considerations”, and Section 117C(6) “very compelling circumstances” – particularly the meaning of lawful residence in the context of section 117C(4)(a), and Part 5A, Section 117B (4), in the overall proportionality assessment.

The Court of Appeal found that the particular facts of CI’s case could reasonably have met the requirements of Section 117(C)6 “very compelling circumstances”, had the Upper Tribunal (UT) carried out the second stage of the Article 8 evaluation on a correct legal basis (para 121).


Background

CI came to the UK from Nigeria with his two sisters and mother in October 1994, aged 15 months, on a visitor visa valid for six months. CI’s mother claimed asylum in August 1994, which was refused on 2 December 1994. In June 2002 CI’s mother applied for indefinite leave to remain (ILR) relying on the Deportation Policy 5/96 (on the basis that her children had been in the UK for seven years continuously at the time). This application was never dealt with. CI’s mother then made a second application on 3 November 2004 for ILR, under the 2003 “Family Life Exercise” concession, there was a delay of seven years, until CI and his family were granted ILR in October 2010. The reasons for the delay were in part due to CI’s mother, and also on the part of the Home Office.

CI’s social service records evidenced that CI was subject as a child to “sustained physical, verbal and emotional abuse” by his mother, and that “CI and his siblings were frequently denied food, and were left locked in the house for long periods.” The home conditions were dirty and CI was often denied access to the bathroom. CI’s mother was a drug user and she would send CI to buy drugs for her or to beg for money from neighbours”. Although the local authority were aware of many problems from November 1994, it was not until October 2007 when CI was eventually taken into care under a police protection order after being refused entry into the family home by his mother. CI was later placed in foster care, and despite frequent absenteeism from school, CI gained six GCSEs and two AS levels.

In 2013, CI was convicted for theft and armed robbery and sentenced to a total of 28 months’ detention in a Youth Offenders’ Institution, CI was later convicted for a further offence of robbery for which he was sentenced to a further 15 months’ detention.

In 2014, CI was served with a deportation order under section 32(5) of the 2007 Act. CI represented himself in the First-Tier Tribunal which was allowed. This decision was overturned in the Upper Tribunal (UT) and CI’s appeal dismissed. CI was first taken on by Duncan Lewis via a legal aid surgery in 2016, and initially assessed as having no merits. Immigration Director Jenna McKinney looked at the papers and believed there were merits to apply for permission to the Court of Appeal. She successfully applied for Exceptional Case Funding and Barrister Alasdair Mackenzie drafting grounds for permission to appeal at risk. Permission to appeal was granted.

Trainee solicitor Van Ferguson took on the bail matter from September 2016, with CI getting released on bail in February 2017. The Court of Appeal ordered for the hearing to be remitted to the UT for a re-hearing. The UT matter was heard before UT Judge Storey and dismissed, which the Court of Appeal in CI (Nigeria) v SSHD [2019] EWCA Civ 2027 has now overturned and remitted back to the UT to be re-heard.


Key findings

The Court of Appeal agreed with the UT in finding that CI had not been lawfully resident for most of his life in the UK. Despite counsel’s “enterprising” submissions on this point. Therefore CI could not find success under Section 117C (4) (a) –Exception 1.

However the Court considered the remaining conditions within Section 117C (4)(b) & (c) – Exception l; “social and cultural integration”; “very significant obstacles” to integration, for the purposes of Section 117C (6) – very compelling circumstances assessment.

The Court of Appeal criticised the approach taken by the UT, whereby it found that CI’s criminality, by virtue was in of itself enough to rupture his social and cultural links in the UK, and therefore CI was not socially and culturally integrated. The Court of Appeal at paragraph 81 commented that “the finding that he was not socially and culturally integrated in the UK does seem to me to have an air of unreality about it”. The Court of Appeal provided guidance as to the approach to take in assessing social and cultural integration in the context of medium offender foreign criminals at paragraph 62.

The Court of Appeal also found the UT approach on the question of very significant obstacles to integration to be defective, especially in light of the impact on CI’s mental health as evidence in two psychiatric reports, and the length of time CI had been absent from Nigeria; further that this evidence had not been properly engaged with.

The Court of Appeal re-iterated the position of NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662; [2017] 1 WLR 207, paras 25-27, in concluding that there was an obvious drafting error in Section 117C(3) of the 2002 Act, and medium offenders who do not meet the exceptions under Section 117C(4) can rely on Section 117C(6) “very compelling circumstances” as a “fall-back protection”.

In assessing whether CI could have reasonably met the “very compelling” threshold the Court of Appeal, considered the following:

  1. Delay of almost ten years from the point CI was eligible for ILR to eventually being granted ILR. That it was an important consideration that CI was a child throughout almost all this period so could not be held responsible for this delay.


  2. Although CI was not considered “lawfully resident” within the meaning of Section 117C (4) Exception 1 (a), this did not necessarily mean that Part 5A, Section 117B (4), public interest - was automatically engaged, in that “little weight should be given” to private life “established by a person at a time when the person is in the United Kingdom unlawfully”. The Court of Appeal disagreed with the Upper Tribunal, in finding that Maslov v Austria [2009] INLR 47 was also applicable to cases such as CI (the Upper Tribunal concluded that Maslov principles could not be invoked in the current case as CI had not been a “settled migrant” for the majority of his childhood), and that in the context of the Article 8 proportionality assessment, that there was, in effect, little difference between a settled migrant who spent the majority of their childhood in the UK and CI’s residence (although unlawful). However this is due to the specific facts of CI’s residence in the UK, namely that he was eligible for ILR from 2001, and through no fault of his own, or for any good reason, he was not granted ILR until 2010. Therefore the Court of Appeal found that, in this instance, Maslov was applicable even to those who are not settled migrants, and as such CI’s time spent in the UK, including the vast majority of his childhood, although “unlawful” for the purpose of Section 117C (4)(a); that it would not be compatible with Article 8, to engage Part 5A Section 117B (4) give “little weight” to CI’s private life before his grant of ILR in 2010. Therefore the Article 8 assessment should be one which should properly view CI as a “settled migrant who spent almost his whole life in this country” (para 118).


  3. Based on the evidence of both psychiatric reports which detail the likely impact deportation would have on CI, and the absence of social and cultural ties with Nigeria, that “it could be considered cruel by the evidence of the devastating impact that it would have upon CI’s mental health” (para 117).


  4. That CI’s offending fell in the “medium category”, and that all offences were committed at a young age, and that this offending “needs to be seen in the context of the abuse and neglect which CI suffered throughout his childhood, and…his grossly deficient parenting. Save for one reference in passing to CI’s “troubled childhood history”, it does not seem to me that, in assessing whether there were very compelling circumstances, the Judge took that into account” (para 119).



The decision of the Court of Appeal is a welcome development in successfully navigating those cases where medium level offenders who do not meet the deportation exceptions under Section 117C(3), are then assessed under the “catch all” Section 117C(6) provision - under very compelling circumstances that are normally reserved for high level offenders.


Representation

CI was represented by Immigration director Jenna McKinney and trainee solicitor Van Ferguson took over conduct of the matter in the remitted UT and the Court of Appeal. Instructed counsel for the UT was Rowena Moffatt of Doughty Street Chambers. Co-counsels for the Court of Appeal were Laura Dubinsky (senior) and Rowena Moffatt (junior).

This case was heard before Senior President of Tribunals (Sir Ernest Ryder), Lord Justice Leggatt and Lord Justice Hickinbottom. Lord Justice Leggatt gave the lead judgment, which was unanimous.

This matter was funded under exceptional case funding.

 

Find full details of this case on Bailii’s website here.
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