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).
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  EWCA Civ 2027 has now overturned and remitted back to the UT to be re-heard.
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  EWCA Civ 662;  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: