RS (Uganda) v Secretary of State for the Home Department

This is an appeal from the decision of Senior Immigration Judge Lane in the Upper Tribunal (Immigration and Asylum Chamber) (“the UT”), dismissing the appeal of the appellant, RS, from the Asylum and Immigration Tribunal (Immigration Judge Mark-Bell and Mr D R Bremmer JP) (“the AIT”), which itself dismissed the appellant's appeal from the decision of the respondent to deport the appellant to Uganda.

The appellant was born on 19 September 1990. In his grounds of appeal he states that he is a citizen of Uganda although he claims to have been born in Kenya. He arrived in the United Kingdom in 2002 with his mother. The appellant's mother claimed asylum but her application was refused. On 10 February 2009 the appellant was granted indefinite leave to remain outside the Immigration Rules as the dependent of his mother.

The appellant has a history of offending. On 13 July 2005 he was reprimanded for burglary and theft. On 11 June 2007 he received a warning for possession of cannabis resin. On 7 September 2007 he was convicted of theft and given a referral order of three months. On 14 March 2008 he was convicted of shoplifting and failing to surrender to custody as soon as practicable and was given an absolute discharge. On 28 March 2008 he was convicted on four counts of robbery on a train, for what is known colloquially as ‘steaming’, for which he received in September 2008 a two years’ detention and training order.

By a notice dated 19 September 1990 the appellant was informed that, in view of his conviction for robbery, the respondent deemed it to be conducive to the public good to make a deportation order against him. The decision was made pursuant to section 3(5)(a) of the Immigration Act 1971 as amended by the Immigration and Asylum Act 1999.

The appellant and his mother gave evidence to the AIT.

The AIT found that the appellant was liable to deportation because the respondent deemed it to be conducive to the public good in accordance with the respondent's policy to deport non-EAA-non-UK nationals sentenced to 12 months’ or more imprisonment. The AIT noted that rule 364 of the Immigration Rules provides that, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation.

The AIT addressed the position under Article 8 of the European Convention on Human Rights (“the Convention”). They referred to the principles set out in various cases including Kugathas v SSHD [2003] EWCA Civ 31. They summarised the decision of the Court of Appeal in that case as being that:

Applying that test, they found as a fact that the appellant had no family life within the meaning of Article 8. On that issue they said as follows:

The AIT then went on to consider whether there were exceptional circumstances outweighing the public interest and deportation within paragraph 364 of the Immigration Rules. Having regard to the factors identified in the former paragraph 364, the AIT considered the appellant's age, his length of residence in the UK, the strength of his connections with the UK, his personal history including his character, conduct and employment record and previous criminal record and the nature of the offences of which he has been convicted, whether there were any compassionate circumstances and the representations received on the appellant's behalf. They concluded that neither individually nor together did those factors outweigh the public interest and deportation. They therefore dismissed the appeal.

The appellant applied for reconsideration of the AIT's decision on the grounds that the AIT (1) wrongly found no family life was established in the UK, (2) failed to consider the appellant's private life, and (3) failed to take into account the decision of the European Court of Human Rights in Maslov v Austria [2008] ECHR 546.

On 30 November 2009 Senior Immigration Judge Spencer ordered reconsideration.

The reconsideration took place before SIJ Lane in the UT on 4 May 2010. He concluded that there was no material error of law in the determination of the AIT. So far as concerns the issue of family life, he said that each case is fact sensitive. He referred to the findings of fact of the AIT on the issue of family life and summarised the position as follows :

SIJ Lane said ([93]) that, in the light of the particular findings of the AIT, he was not satisfied that the AIT erred in law in concluding that the appellant did not have a family life which is entitled to protection under Article 8.

Turning to the issue of the appellant's private life, he said ([10]) that the omission of the AIT to refer to the appellant's private life might be an error of law. In his judgment, however, it was not a material error because the AIT had considered in considerable detail other factors, such as the appellant's age, his length of residence in the UK, the strength of his connection with the UK, his personal history including character, conduct and employment record, his domestic circumstances, his previous criminal record and the nature of offences of which he had been convicted, and compassionate circumstances, among other matters. He said ([11]) that the AIT's analysis of those factors provided a very useful basis for considering what would have been the likely outcome of an Article 8 proportionality exercise had the AIT proceeded to carry one out. As to that, SIJ Lane considered that the AIT would have concluded that the appellant's removal would not be disproportionate. He said as follows:

Turning to Maslov SIJ Lane said that case was distinguishable on its facts, particularly the serious nature of the appellant's "steaming" offence, the age when the appellant came to the UK, and the time since he came and since he was granted indefinite leave to remain.

For those reasons the UT dismissed the appeal.

Three errors of law are set out in the written grounds of appeal. They are (1) the UT's assessment of family life in the UK was flawed; (2) Maslov was not correctly applied by the UT when assessing the proportionality of deportation; and (3) the UT's assessment of proportionality involved too high a threshold to overcome the public interest in deportation, and was a threshold inconsistent with the jurisprudence of the European Court of Human Rights (“the ECrtHR”).

As Ms Lynne Brakaj, for the appellant, made clear in her oral submissions, grounds 2 and 3 overlap.

In Maslov the applicant, who was originally from Bulgaria, went to Austria in November 1990, at the age of six, with his parents and two siblings. They were lawfully resident there. His parents acquired Austrian nationality and were lawfully employed there. The applicant attended school in Austria. On 8 March 1999 he was granted an unlimited settlement permit. On 7 September 1999 the Vienna Juvenile Court convicted the applicant on 22 counts of aggravated gang burglary and attempted aggravated gang burglary, forming a gang, extortion, assault and unauthorised use of a vehicle, committed between November 1998 and June 1999. He was sentenced to 18 months’ imprisonment, thirteen of which were suspended on probation. The sentence was accompanied by an order to undergo drug therapy.

Following the commencement of further criminal proceedings, on 25 May 2000 the Vienna Juvenile Court convicted the applicant on eighteen counts of aggravated burglary and attempted aggravated burglary and sentenced him to 15 months’ imprisonment. When fixing the sentence the court observed that the applicant, although still living with his parents, had completely escaped their educational influence, had repeatedly been absent from home and had dropped out of school. It also noted that the applicant had failed to comply with the order to undergo drug therapy. Consequently the suspension of the prison term imposed by the judgment of 7 September 1999 was revoked. Following the Vienna Juvenile Court's judgment the applicant served his prison term.

On 3 January 2001 the Vienna Federal Police Authority, relying on the Aliens Act 1997, imposed a ten year exclusion order on the applicant. Having regard to the applicant's convictions, it found that it was contrary to the public interest to allow him to stay in Austria any longer. Considering the applicant's relapse into crime after his first conviction, the public interest and the prevention of disorder and crime outweighed the applicant's interest in staying in Austria.

The applicant appealed. He submitted, among other things, that the exclusion order violated his rights under Article 8 of the Convention as he was a minor who had come to Austria at the age of six, his entire family lived in Austria and he had no relatives in Bulgaria. Following a succession of unsuccessful appeals to the Austrian courts he was deported to Sofia in December 2003. He appealed to the ECrtHR. According to the information given by counsel at the hearing, the applicant had not committed any further offences in Bulgaria and had found employment there. The exclusion order was due to expire on 3 January 2011. The Grand Chamber of the ECrtHR held that there had been a violation of Article 8.

Although it was not in dispute in Maslov that there was an interference with the applicant's private and family life (see [46]) the Court nevertheless considered that issue. It reiterated in [61] of its judgment that the question whether the applicant had a family life within the meaning of Article 8 had to be determined in the light of the position when the exclusion order became final. The Court then addressed the facts and reached its conclusion on the point in [62] to [64] as follows:

The Court then went on to consider whether the interference could be justified under the second paragraph of Article 8. The Court set out in [57] criteria relevant to that exercise where an offence is committed by an applicant. The Court then elaborated on those criteria as follows, particularly with regard to a young adult who has not yet founded a family of their own:

The Court then turned to consider the nature and seriousness of the offences committed by the applicant, and said:

The Court went on to summarise as follows its approach in a case where an offence is committed by an applicant while a juvenile:

Ms Brakaj turned, first, to the appeal in relation to the finding of the UT that there had been no error of law on the part of the AIT in holding that the appellant did not have a family life within the meaning of Article 8. She stated that this ground of appeal was a challenge on the ground of perversity. Ms Brakaj did not challenge that the issue was to be determined at the date of the hearing before the AIT, when the appellant was an adult (as he was at the date of the notification of the decision that he should be deported) and that the Kugathas test was the appropriate test. She did not criticise the way in which the AIT summarised the decision in Kugathas. Her case is that, on the facts as found by the AIT, the appellant had not entirely disassociated himself with his family, and at the time of the offences was living with his mother or sister, and he had, for example, attended a family barbecue in August 2008. She pointed out that members of his family maintained contact with him while he was in prison.

She submitted that the perversity of the UT was to be found in [8] of its decision, in which SIJ Lane had, she said, decided that the appellant had no family life within Article 8 because the AIT had found that the appellant associated with gangs and gang culture and so had turned his back on his family. She submitted that it was plain that in principle the latter would not necessarily exclude family life within Article 8. She said that was borne out by Maslov itself in which the applicant, who, like the appellant, had been a juvenile at the time of the offences but was an adult at the time of the appeals, was involved with gangs and gang culture.

This ground of the appellant's appeal had no substance. It is perfectly clear from [26] of its decision that the AIT took into account the entirety of the evidence in reaching its decision on family life. The UT was quite clearly not saying that the only basis for a rejection of the appellant's claim to family life within Article 8 was because he had committed offences and was involved in gangs and gang culture. SIJ Lane set out in his judgment paragraph [21] of the AIT's decision and expressly referred to that paragraph in [8] of his own judgment (where he mistakenly calls it paragraph 16). SIJ Lane was attempting to do no more than summarise in broad terms the matters relied upon by the AIT.

The other ground for challenging the decision of the UT was that it (and the AIT) had wrongly applied the proportionality test under the second paragraph of Article 8. Ms Brakaj again said that this is an attack on grounds of perversity. The essence of her case on this aspect is that the UT failed to follow the approach in Maslov and, since the application in that case had succeeded in establishing an infringement of Article 8, it is impossible for the appellant not to do so also. She emphasised that both the applicant in Maslov and the appellant in the present case were both juveniles when they committed offences and they both committed offences involving violence. She submitted that the UT had failed to carry out a sufficiently rigorous and detailed analysis of the appellant's offences in order to be able to satisfy the requirement in [75] of Maslov that there are "very serious reasons [justifying] expulsion", and had the UT done so it would have concluded that the offences of violence had to be seen in the context of a string of other non-violent offences similar to the situation in Mazlov.

I can see no proper basis for this ground of appeal. It is not helpful to undertake a minute comparison of the factual situation in Maslov. That case is important for the principles that it lays down, and the only question is whether those principles were correctly applied by the AIT and the UT in the present case. It is not difficult to distinguish the facts in Maslov. In that case the applicant had entered Austria at a younger age than that at which the appellant came to live in the UK. The applicant in Maslov spent more time in Austria than the appellant has spent in the UK. The applicant in Maslov was at all relevant times lawfully resident and settled there. In the present case the appellant was only lawfully resident in the UK from the time when he was granted indefinite leave to remain in February 2009 (and, then, strictly only for a few months until the decision to deport him). In Maslov the ECrtHR emphasised that only one of the numerous offences for which the applicant was convicted was one of violence. By contrast the appellant was convicted on four counts of robbery involving the robbery of young vulnerable victims on a train at night. It is to be noted that in Maslov the example given in [85] of criminal offences justifying expulsion included robbery and aggravated assault. In Maslov the applicant committed the offences at a younger age than the appellant committed his violent offences.

In dealing with the appellant's offences, the UT said:

I do not consider that it can be said that the UT there did not analyse sufficiently the nature of the appellant's offences in the context of the Mazlov principles.

Ms Brakaj referred us also to the following two paragraphs in JO (Uganda) v SSHD [2010] EWCA Civ 10:

I do not see that these add anything to the appellant's argument. I have already dealt with the grounds of appeal insofar as Ms Brakaj has said there has been a failure to apply the principles and approach in Maslov. I should say that, at one point in her submissions, she criticised the UT for failing to analyse the existence or absence of ties between the appellant and Uganda and Kenya, but she accepted that this complaint is not one of the grounds of appeal and was not addressed there or in the skeleton argument in support of the appeal. Paragraph [22] of JO (Uganda) emphasises the point I have already made about the limited value of making factual comparisons with other cases.

Ms Brakaj also referred us to paragraph [36] in the judgment of Pill LJ in HM (Iraq) v SSHD [2010] EWCA Civ 1322, but I do not consider that what was said there is helpful on the different facts of the present case.

Mr Neil Sheldon, for the respondent, referred us to MW (Democratic Republic of Congo) v SSHD [2011] EWCA Civ 1240 in which Sullivan LJ, with whom the other members of the Court of Appeal agreed, rejected at [75] the respondent's submission that, notwithstanding Maslov, the respondent may lawfully deport a settled migrant even in the absence of any serious reasons to justify deportation. He said that it is made clear in [75] of Maslov that very serious reasons are required to justify expulsion in such a case. For the reasons I have given, the UT was entitled to reach the conclusion that there were very serious reasons in the present case.

For those reasons I would dismiss this appeal.

I agree for the reasons that my Lord has given and I particularly associate myself with what he says about the correct approach to the decision of the Strasbourg court in Mazlov. Much of the argument on this appeal has involved a detailed comparison of the facts of this case with those in Mazlov, which in my view is entirely inappropriate. The value of the decision in Mazlov lies in the guidance which it gives about the principles which are to be applied in cases of this kind. It should not be treated as decisive in relation to whether particular facts engage Article 8 or whether they make removal disproportionate. Each of these cases is, as judges have said on numerous occasions, highly fact sensitive and the weight to be given to particular features necessarily varies according to the circumstances.

For those reasons I too would dismiss this appeal.

I agree with both judgments. In the light of my Lord, Patten LJ's judgment I would merely observe that amongst the facts found by the AIT upon which Senior Immigration Judge Lane in the UT clearly relied and had in mind (see the beginning of his paragraph 11) were the following. First of all in relation to the convictions on four counts of robbery, the AIT referred to the sentencing judge's comments which included the remarks (see paragraph 29 of the AIT judgment) that, as indicating the gravity which the sentencing judge attributed to the offences, he stated that his starting point would have been in the region of five or six years had the matter been fully contested. However, he gave full credit for the early guilty pleas. It is plain from that starting point and the final sentence for this appellant of a two year detention and training order that the judge was also giving full allowance for the youth of the appellant. However, the starting point of five to six years on a trial for such offences if committed by an adult amply demonstrates the gravity of those offences.

Secondly, the AIT also brought findings concerning the appellant up to date by referring to the fact (see paragraph 28 of the AIT judgment) that he had been found guilty while in custody of fighting on four occasions with other inmates at the detention centre in February, June, a second time in June, and September 2009. All that occurred while he was an adult; indeed on the last occasion into his twentieth year.

Thirdly, the AIT referred to the circumstances which arose when a probation officer went to meet the appellant at the young offenders' institution where he was held in detention in July 2009; that was only three months before the hearing before the AIT. The probation officer had gone to meet the appellant for the purposes of preparing a pre-sentence report in connection with another offence, so far unmentioned, which the appellant had committed in August 2008 while on bail in the period between his conviction and his sentencing for the four robberies. That was an offence of theft for which in the end he was ordered to serve 12 months’ detention. It was for the purposes of the sentencing for that theft that the probation officer had gone to the young offender institution to interview the appellant in July 2009. It turned out that the appellant refused to see that probation officer, preferring instead to play football. The AIT concluded (see paragraph 33 of the AIT determination):

I mention those matters because they both show the gravity of the offences of robbery and also bring the findings of the AIT up to date to shortly before the AIT hearing itself.