Secretary of State for the Home Department v Yan Bossade

Upper Tribunal

(Immigration and Asylum Chamber)

Bossade (ss.117A-D-interrelationship with Rules) [2015] UKUT 00415 (IAC)

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice	Decision & Reasons Promulgated
On 20 April 2015
	…………………………………

Before

UPPER TRIBUNAL JUDGE STOREY

UPPER TRIBUNAL JUDGE DAWSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

MR YAN BOSSADE

(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation :

For the Appellant: Mr I Jarvis, Home Office Presenting Officer

For the Respondent: Mr K Mak, Solicitor, instructed by MKM Solicitors

1. For courts and tribunals, the coming into force of Part 5A of the Nationality, Immigration and Asylum Act 2002 (ss.117A-D) has not altered the need for a two-stage approach to Article 8 claims.

2. Ordinarily a court or tribunal will, as a first stage, consider an appellant’s Article 8 claim by reference to the Immigration Rules that set out substantive conditions, without any direct reference to Part 5A considerations. Such considerations have no direct application to rules of this kind. Part 5A considerations only have direct application at the second stage of the Article 8 analysis. This method of approach does not amount to according priority to the Rules over primary legislation but rather of recognising their different functions .

3. In the context of foreign criminal cases (because the provisions found in Part 13 of the Rules are a complete code encompassing both stages of the Article 8 assessment), this means that Part 5A considerations have no direct role at the first stage when a court or tribunal is deciding whether an applicant meets the substantive conditions of paragraphs 399 or 399A of the Immigration Rules. They only have direct application at the second-stage, viz. assessment under the rules that involve a proportionality assessment: viz. paragraph 398 and (in revocation cases) paragraph 390A. In cases other than those concerning deportation of foreign criminals, where the Rules are not a complete code, it may still be necessary to conduct this second stage outside the Rules: see Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636 at [39].

4. Whilst Part 5A considerations may have indirect application to the Immigration Rules, including those setting out substantive conditions such as paragraphs 399 and 339A, this is limited to their role as statements of principles that can be used where appropriate to inform the meaning of key terms set out in such paragraphs.

5. New paragraph 399A of the Immigration Rules remains similar to the old in considering the foreign criminal deportee’s situation both in the UK and in the country of return. However, so far as concerns focus on a person’s situation in the UK, time in the UK is no longer relevant as such except in the context of lawful residence (399A(a)) and paragraph 399A(b) introduces new criteria that relate to social and cultural integration in the UK. So far as concerns focus on the situation in the country of return, paragraph 399A no longer looks at ‘ties’ per se but at the more inclusive notion of integration and obstacles thereto. By requiring focus on integration both in relation to a person’s circumstances in the UK as well as in the country of return, the new Rules achieve a much more holistic assessment of an appellant’s circumstances. Thereby they bring themselves closer to Strasbourg jurisprudence on Article 8 in expulsion cases which has always seen consideration of both dimensions as requiring a wide-ranging assessment: see e.g. Jeunesse v Netherlands (GC) App.No. 12738/10, 31 October 2014, paragraphs 106-109.

DECISION AND REASONS

Analysis

The applicable Rules

18. We deal first with the applicable Rules (we shall address more fully later why we start with them rather than with Part 5A considerations). The parties invited us to apply those in force now, rather than those in force when the SSHD made her decision. They did not cite authority but in light of the conclusion set out by Aikens LJ in YM (Uganda )[2014] EWCA Civ 1292 at [37] and AJ (Angola ) [2014] EWCA Civ 1636 at [7] they are clearly right about that. Because we are re-making the decision (having set aside that of the First-tier Tribunal) we must apply the Rules in force at the date of hearing before us.

19. This approach carries with it the difficulty that the Upper Tribunal is determining an appeal under a different version of the Rules than the SSHD was when she made her decision, but that is one the legislative framework caters for (s.85(4) of the 2002 Act) and of course the SSHD (in reply to Tribunal directions and through her representative, Mr Jarvis) was able to inform us what view she takes.

The new Rules

20. Whether (as Mr Jarvis contended) the new Rules are largely a codification of existing case law or not, we of course have to approach the meaning of their provisions in the light of the guidance given by the Supreme Court in Mahad (and Others) v Entry Clearance Officer [2009] UKSC 16.

21. Paragraph 399A, like paragraph 399, only applies to less serious foreign criminal cases falling within paragraph 398(b) or (c). Put another way, a foreign criminal who has been convicted of an offence for which he has been imprisoned for at least 4 years – i.e. a foreign criminal falling within paragraph 398(a) - is excluded from consideration under paragraphs 399A and 399A and can only seek to rely on the residual provision in paragraph 398 which requires him to show that there are “very compelling circumstances over and above those described in paragraphs 399 and 399A”.

Paragraph 399A

22.The previous version of paragraph 399A (Footnote: ¹ ) did not refer to integration but rather to criteria relating to (i) the period of time a person has lived in the UK continuously, discounting any period of imprisonment); (ii) age (if 25 or over, it was necessary to show a 20 year period; if under 25, it was necessary to show he had spent at least half his life living continuously in the UK); and (iii) the nature of his ties in the country to which he would go if required to leave the UK (“and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”). These criteria were set out in two subparagraphs, one imposing a requirement of 20 years’ continuous residence; the other, applicable only to those under 25, imposing a ‘half of his life in the UK’ criterion coupled with a ‘no ties’ test. Except for requirements of time, the focus was entirely on the situation in the applicant’s country of return.

23. The new paragraph 399A of the Immigration Rules remains similar to the old in considering the foreign criminal deportee’s situation both in the UK and in the country of return. However, so far as concerns the focus on a person’s situation in the UK, time in the UK is no longer relevant as such except in the context of lawful residence (paragraph 399A(a)) and paragraph 399A(b) introduces new criteria that relate to social and cultural integration in the UK. As before, the rule is cast in the present tense: “he is socially and culturally integrated in the UK”. So far as concerns focus on the situation in the country of return, it no longer looks at ‘ties’ per se but at integration and obstacles thereto. By requiring focus on integration both in relation to a person’s circumstances in the UK as well as in the country of return, the new Rules require a much more holistic assessment of an applicant’s circumstances. Thereby they bring themselves closer to Strasbourg jurisprudence on Article 8 in expulsion cases which has always seen consideration of both dimensions as requiring a wide-ranging assessment: see e.g. Jeunesse v Netherlands (GC) App.No. 12738/10, 31 October 2014, paragraphs 106-109. Sections 117A(2)(b) and 3(b) of the 2002 Act also utilise the concept of “integration into society”.

24. In our judgement, the gravamen of the new paragraph 399A(b) is integration in the UK. Integration must be shown to exist in two respects: social and cultural. Neither one nor the other is sufficient. The term integration imports a qualitative test: in order to assess whether a person “is” socially and culturally integrated in the UK, one is not simply looking at how long a person has spent in the UK or even at whether that period comprises lawful residence: but the fact that an applicant has spent some or all of his time in the UK unlawfully may be of relevance in deciding whether he has integrated in these two ways. Another difference between the old and the new Rules is that whereas the previous rule required any period of imprisonment to be discounted, the new rule is silent on the matter. As a result we consider that it must remain open to the decision-maker to consider time spent in prison negatively, because it does not bespeak integrative behaviour; but the rule no longer mandates that.

25. Mr Mak submitted that it is implicit in the paragraph 399A context – a rule dealing with foreign criminals - that merely being a foreign criminal cannot preclude a person from showing the necessary integration. With that we can easily agree. Mr Mak further submitted that the rule cannot have been intended to assist only a few such persons. With that we wholly disagree. The new Rules make even clearer than the pre-28 July 2014 rules that deportation of foreign criminals is always in the public interest and can only be outweighed in very limited circumstances. In general terms imposition of a custodial sentence is an indication that the person concerned has not respected the values of the host society (cf in the context of EU law on deportation of foreign criminals, Case C-400/12 Secretary of State v MG ECJI:EU:C2014:9 at [31]). Further, whilst in prison a person cannot be a useful member of society at large; during that time such a person cannot as a general rule show integration into society. Thus, although the new rule does not as such preclude time in prison from being considered as to whether social and cultural integration is shown, its terms leave very little scope for such argument.

Interrelationship between ss. 117A-D considerations and the Immigration Rules.

26. Both parties were adamant that in deciding the claimant’s case it was necessary for the Tribunal to apply Part 5A of the Act in tandem with the relevant provisions of the Rules However, beyond Mr Jarvis’s submission that to apply Part 5A was especially important in the context of the paragraph 398 analysis, neither representatives offered any view as to how the Tribunal should structure its decision-making so as to address both sets of provisions

27. The coming into force of Part 5A of the 2002 Act has complicated life for courts and tribunals. It has meant that in this area of law there are now two overlapping sets of domestic provisions dealing with Article 8. Both reflect attempts to codify aspects of Article 8 jurisprudence (with the Immigration Rules this process was only expressly begun in July 2012, when the government decided to incorporate into the Rules a number of provisions dealing with Article 8). Just as when the government introduced the new Immigration Rules in June 2012 it produced an “ ECHR memo” explaining their purport, so too when it introduced the Immigration Bill in 2013 it published an “ECHR Memorandum”. Both sets of provisions reflect the will of Parliament although the Rules do not carry the same degree of democratic endorsement as does primary legislation: see MM & Ors, R (On the Application Of) v Secretary of State for the Home Department (Rev 1) [2014] EWCA Civ 985 at [92]; R (on the application of Onkar Singh Nagre) v SSHD [2013] EWHC 720 (Admin) at [25]. In addition, their respective contents heavily overlap. For example, both s.117B(6) and paragraph 399(a)(ii) deal with a person who has a genuine and subsisting relationship with a child under the age of 18 years and is in the UK and the child is a British citizen or the child has lived continuously for at least 7 years; whereas s.117A(6)(b) refers to the circumstances where “it would not be reasonable to expect the child to leave the United Kingdom”, paragraph 399A(b) requires it to be shown that it would be “unduly harsh” for the child to live in the country to which the person is to be deported and it would be “unduly harsh” for the child to remain in the UK without the person who is to be deported. Both s.117C(5) and paragraph 399(a) (ii) (a) and (b) employ the criterion of “unduly harsh”. We have already noted that both s.117C(4) and paragraph 399A(b) employ the concept of integration.

28. That there should be broad overlap in content is hardly surprising; indeed something would be amiss otherwise, since both deal with immigration control and both require relevant decision-makers to act in compliance with a person’s human rights (paragraph 2 of the Rules; s. 117A(1) of the 2002 Act). Both also reflect the desire on the part of the government to regulate more fully the importance of the public interest in the maintenance of effective immigration control and in the Committee stage of the Bill the then Minister of Immigration described the purpose of Part 5A as being that of “setting out the weight that judges should place on the public interest in relation to certain factors”, such a step being seen as necessary because judges had observed that the Immigration Rules lacked the full democratic legitimacy of primary legislation (see Q194).

29. However, whilst this backdrop clarifies why it was felt necessary to complement the Rules with primary legislation in the form of Part 5A, it does not assist us in clarifying their interrelationship. The interplay between these two regimes, one of primary legislation, the other of a subsidiary status, is one of the important issues arising out of the recent legislative reforms.

30. In seeking to analyse how they co-exist, we should first of all clarify that the coming into force of Part 5A of the Nationality, Immigration and Asylum Act 2002 (ss.117A-D) has not altered the need for a two-stage approach to Article 8 claims . It is inexorably clear from higher court guidance, both that preceding the coming into force of Part 5A (see e.g. MF (Nigeria )) and that given subsequently (see e.g. SSHD v SS (Congo) & Ors [2015] EWCA Civ 387), that assessment of Article 8 claims requires a two-stage analysis.

31. The existing case law makes very clear that in foreign national deportation cases, the two-stage approach must be conducted entirely within the Rules because they are a “complete code” for these purposes ( MF (Nigeria )[2013] EWCA Civ 1192 at [16]); the same is not necessarily true for other types of cases where there may be gaps. In Secretary of State for the Home Department v AJ (Angola ) [2014] EWCA Civ 1636, Sales LJ stated at [39]:

“The fact that the new rules [on foreign criminals] are intended to operate as a comprehensive code is significant, because it means that an official or a tribunal should seek to take account of any Convention rights of an appellant through the lens of the new rules themselves, rather than looking to apply Convention rights for themselves in a free-standing way outside the new rules. This feature of the new rules makes the decision-making framework in relation to foreign criminals different from that in relation to other parts of the Immigration Rules, where the Secretary of State retains a general discretion outside the Rules in exercise of which, in some circumstances, decisions may need to be made in order to accommodate certain claims for leave to remain on the basis of Convention rights, as explained in Huang and R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) .”

32. In SS (Congo ) Sales LJ at [45] put matters this way:

“ The latter stage of the [two-stage analysis] analysis will be covered by the text of the Rules themselves, as in relation to the Rules covering deportation of foreign criminals reviewed in MF (Nigeria). Those Rules laid down substantive conditions which, if satisfied, would lead to the grant of LTR, but also stated that LTR might be granted in “exceptional circumstances” if the substantive conditions were not satisfied in a particular case. Where the Rules take this form, it can be said that they form a “complete code”, in the sense that both stages of the analysis are covered by the text of the Rules. But this does not take one very far, since under the “exceptional circumstances” rubric one still has to allow for consideration of any matters bearing on the application of Article 8 for the purposes of the second stage of the analysis: see AJ (Angola [ ] , above, at [46] and [55]. This is the basic point made by this court at paragraph. [44]-[46] of its judgment in MF (Nigeria).”

33. We have seen cases in which tribunal judges have regarded Part 5A considerations as provisions that have to be directly applied and without qualification when deciding cases under the Immigration Rules. We respectfully suggest that such an approach cannot be correct for a number of reasons.

34. In the first place, the application of Part 5A considerations presupposes that the decision-maker has reached the stage in an Article 8 assessment of assessing proportionality. Part 5A considerations are not a complete code of the general law on Article 8. Sections 117A-D do not for example deal with the meaning of family life or private life or with the issue of interference with the right to respect for private and family life or whether the decision is in accordance with the law. Put in Razgar, R (on the Application of) v. Secretary of State for the Home Department [2004] UKHL 27 terms, ss.117A-D are concerned only with Question 5: as stated in Dube (ss.117A-117D ) [2015] UKUT 90 (IAC) at [25]: “in effect ss.117A-117D are essentially a further elaboration of Razgar ’s Question 5 which is essentially about proportionality and justification (Lord Bingham’s Question 5 asks, assuming that in reply to previous questions it has been established that there had been an interference with the right to respect for private and family life, “ [i]f so, is such interference proportionate to the legitimate public end sought to be achieved?”). In addition, the Part 5A considerations are not and do not purport to be a complete code for the conduct of the proportionality assessment enjoined by Razgar Question 5. They do not purport to be an exhaustive set of the considerations that must be taken into account when assessing proportionality: section 117A(2) provides that the court or tribunal “must (in particular) have regard to . . . considerations” that are then enumerated: see Dube , AM (S.117B) [2015] UKUT 260 (IAC).

35. Second, ss.117A-D do not provide that such considerations are to be applied to the Immigration Rules or in what way. They state that they apply where a court or tribunal is required to determine a decision made under the Immigration Acts, but they do not specify whether they are to be applied to assessment of Article 8 claims either under the Rules or outside the Rules. Correspondingly, the Immigration Rules contain no express provision making or requiring reference to Part 5A notwithstanding that this was brought into force on the same date as the new version of the Immigration Rules with which we are concerned (28 July 2014).

36. Third, the approach that Part 5A considerations should be applied directly and in wholesale fashion to the Rules misunderstands that a key characteristic of the Rules is that for the most part they set out criteria which are or may be determinative of a person’s immigration status. It was this characteristic which was seen by the Supreme Court in R(Alvi) v Secretary of State for the Home Department [2012] UKSC 33 [2012] 1 WLR 2208 to constitute their raison d’etre . As was put by Lord Dyson at [94]:

“…any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of section 3(2) [of the Immigration Act 1971]. That is what Parliament was interested in when it enacted section 3(2). It wanted to have a say in the rules which set out the basis on which these applications were to be determined”.

and at [97]: “The key requirement is that the immigration rules should include all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain”.

37. How this characteristic of the Rules is woven into the rules on foreign criminals headed “Deportation and Article 8” needs some elaboration because of the unusual wording found in paragraphs 398 and 390A. The Rules on foreign criminals include provisions that specify substantive conditions that have to be met and if they are met result in a decision that a person is or is not “successful” in their Article 8 claim and in turn on a decision whether to grant of limited leave etc. (paragraph 399B). In this way, meeting these conditions has a determinative effect on a person’s status. This is the primary function of paragraphs 399 and 399A: see MF (Nigeria ) at [35]. Being a set of conditions they are qualitatively different to “considerations”. Paragraph 398 (like paragraph 390A) has to be treated as sui generis because it is settled law that its criterion for those who cannot succeed under paragraphs 399 or 399A – “very compelling circumstances over and above those described in paragraph 399 and 399A” - necessitates a full-blown second-stage Article 8(2) proportionality assessment.

38. There is thus a qualitative difference between the Rules in general and Part 5A. By contrast (and subject to a possible argument regarding s.117B(6) and s.117C(4)-(6) in some appropriate future case or cases), the considerations set out in ss.117A-D are not determinative of whether or not a person qualifies on Article 8 grounds; they do not set out necessary and sufficient conditions. Rather they are obligatory (non-exhaustive) considerations to be applied in addressing the “public interest question”. This crucial difference remains notwithstanding that most of the provisions of Part 5A are either identical or broadly mirror those to be found in the Rules: see above paragraph 27 .

39. We have noted above that certain provisions of Part 5A, in particular s.117B(6) and s.117C(4)-(6), might be argued to operate as a self-contained set of legal requirements providing a complete answer to the “public interest question” and we have noted that decision on such issues is best left to a future cases or cases. All that we would observe here is that even if one or both sets of provisions were found to be determinative of the “public interest question” in a particular case, it remains that Part 5A is silent about what this means for the success or failure of an Article 8 claim or about a person’s consequential immigration status.

40. Fourth, the wholesale and unstructured application of Part 5A considerations to the Rules would undermine the settled law regarding the two-stage approach, by effectively requiring the first stage to be expanded to incorporate or take into account considerations that are integral to the second stage. To apply Part 5A considerations directly and indiscriminately to decision-making under the Rules would subvert the legal certainty of the Rules. Despite the Rules making no reference to Part 5A considerations as being any kind of “condition” or requirement, courts and tribunals would in effect be treating them as additional conditions or as sub-rules within the Rules. It would also pose an impossible task logically since it would require courts and tribunals to simultaneously decide (i) whether the substantive conditions of the Rules are met; and (ii) whether the Part 5A considerations operate as a further set of specific substantive requirements potentially requiring a different conclusion under the Rules. The Rules stipulate that an Article 8 claim succeeds if it meets the substantive conditions set out in paragraphs 398, 399 or 399A.

41. It might be argued that the above analysis is defeated by the fact that the Rules represent a striking of the Article 8 balance (between individual interests and the interests of the wider community) (Footnote: ² ) and have been formulated to reflect where the public interest lies. We have no difficulty with that argument insofar as it expresses that the new Rules were meant to incorporate more fully principles of Article 8 jurisprudence. But this argument cannot mean that in general the new Rules provide criteria for how the decision-maker is to strike the balance in the context of a free-standing proportionality assessment. Leaving aside the unusual provisions to be found in paragraphs 398 (requiring it to be shown that there are “other factors where there are very compelling circumstances over and above those described in paragraphs 399 and s99A”) and 390A (Footnote: ³ ) (requiring there to be “…exceptional circumstances” such that “the public interest …will be outweighed by other factors”), the new Rules generally reflect a balance that has already been struck. They are designed without more to deliver a decision which is compliant with Article 8. This is the core of the binding Court of Appeal decisions which have addressed this fundamental issues, in particular MM & Ors at [92].

42. It might separately be argued that the above analysis is undermined by the fact that even when seeking to apply the substantive requirements of the Rules (other than the “very compelling circumstances” and provisions set out in paragraphs 398 and 390A respectively) a court or tribunal in any individual case has clearly to conduct a balancing exercise, e.g. in deciding whether a person has shown social or cultural integration into society or has shown that the effect of their deportation on a child would be unduly harsh. Furthermore, it might be argued that such a balancing exercise is co-extensive with the proportionality assessment to be conducted in deciding the public interest question under Part 5A. We find any such argument unconvincing. Of course assessment under both the substantive requirements of paragraphs 399 and 399A and under the proportionality assessment to be made when deciding the public interest question requires an exercise of judgement which may involve looking at factors for and against. But under paragraphs 399 and 399A the balancing exercise is strictly limited to evaluation of the relevant condition or conditions – e.g. whether there is social or cultural integration, whether the impact of deportation is unduly harsh. That is quite different from the wide-ranging multi--factored stage two proportionality assessment required when deciding the public interest question in order decide whether a decision is justified under Article 8(2).

43. The above analysis does not mean that Part 5A has no relevance to the legal regime formed by the Rules. Even though imposing obligations on courts and tribunals only, Part 5A contains a clear expression of statements of principle seen to govern identified elements of Article 8 in the context of the Immigration Acts. In this way Part 5A could be said to underpin the Rules or to be overarching. In this context Part 5A can clearly have indirect application to the Rules, including to rules setting out substantive conditions such as paragraphs 399 and 339A, for example by possibly informing the meaning of key terms set out in such paragraphs, as we have explored at [23] above (see also [54] below).

44. It has been important to the foregoing analysis to emphasise the degree of overlap in subject-matter between Part 5A and certain provisions of the Rules. However, in light of what we have just said about Part 5A containing overarching statements of principle, it is pertinent to note that some provisions of Part 5A find no precise equivalent in the Rules. For example, the Rules do not contain a provision stating in terms, as does s.117(4)(a), that little weight is to be given to a private life that is established by a person at a time when the person is in the UK unlawfully. That only goes to reinforce that the two legal regimes, although complementary, are different in kind, because the private life provisions of the Immigration Rules represent the Secretary of State’s weighting, without more, as to what conditions have to be met in order for leave to remain to be granted on private life grounds.

Should Part 5A considerations be applied first?

45. There is a body of opinion that as a result of the coming into force of Part 5A courts and tribunals must begin their assessment of all Article 8 cases by reference to Part 5A. In this regard it is emphasised that being now enshrined in primary legislation, Part 5A considerations must have priority over the Immigration Rules which are not even subsidiary legislation in the strict sense. We think it will already be apparent why we must respectfully disagree with this view. The reasons we have set out at [26]-[43] above for concluding that Part 5A considerations are only to be directly applied to the Rules in carefully limited ways also stand to explain why in our judgement it would be wrong ordinarily to apply Part 5A considerations at the first stage of the analysis. We would emphasise that in light of our earlier analysis it is not a question of according priority to the Rules over primary legislation but rather of recognising their different functions. Consistent with the two-stage approach, the first stage requires that courts and tribunals first of all determine whether a person meets the substantive requirements of the Rules. It is only at the second stage that Part 5A considerations have direct application and even if that second stage takes place within the Rules (as it must in relation to foreign criminals), it remains that they are not applied first.

46. Accordingly, it would be wrong as a general proposition to address Part 5A considerations first.

Part 5A and the two-stage approach to Article 8 analysis summarised

47. In light of the above analysis it is now possible to summarise how Part 5A impacts on the two-stage process.

48. Part 5A does not and is not intended to displace the ongoing need for a two-stage approach to Article 8 analysis. The only question is to what extent it modifies it. In our view it cannot, and is not intended to, impact directly or in wholesale fashion on the first-stage.

49. In the context of considering an applicant under the Rules there is ordinarily no role for direct application in wholesale fashion of Part 5A considerations. Those considerations only directly arise where there is a “public interest question” which is defined at s.117A(3) to mean a proportionality assessment: or more precisely, “the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2)”. We use the adverb “directly” to differentiate the situation where the Part 5A provisions may be seen to have indirect application, by shedding possible light on the meaning of terms in the Rules – as we have considered above in relation to the meaning of “social and cultural integration” within paragraph 399(b)).

50. For Part 5A considerations to have a direct role, therefore, it can only be in the context of a proportionality assessment in accordance with Article 8(2).

51. Whilst it is now established that in some respects the Rules do not incorporate a two-stage approach, it is settled law that those dealing with foreign criminals do. What that entails for the role of Part 5A considerations in a foreign criminal deportation case is that they only have direct application in the context of the unusual provisions contained in paragraph 398 and paragraph A390 which require the decision-maker to conduct a proportionality assessment in terms of whether there exist “other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A” or (in the revocation context) “only...in exceptional circumstances…[where there are] other factors” outweighing the public interest. Assessment of such circumstances (by reference to unspecified “other factors” inevitably requires a wide-ranging, multi-factored assessment.

52. It is true that success under the “very compelling circumstances”/exceptional circumstances” criteria set out in paragraph 398 and 390A ( both which have to be applied to unspecified “other factors”) also results in success in an Article 8 claim and in this way is also determinative of a person’s immigration status. But by virtue of the reading given phrases of this kind by the Court of Appeal in MF (Nigeria ) they must be understood as having a sui generis character, since although they can be said to constitute a substantive criterion, their specific nature is such that they have no fixed boundaries: a decision on whether these criteria are met requires a full-bodied proportionality assessment in accordance with Article 8(2).

Application of the new rule to the claimant’s circumstances

Paragraph 399A(a)

53. The claimant falls for consideration under paragraph 399A because he had been convicted of an offence for which he was sentenced to a period of imprisonment of less than 4 years (see paragraph 398(b). It is not in dispute in this case that the claimant meets the requirements of paragraph 399A(a) by virtue of the fact that he had resided in the UK lawfully from 24 September 1998 (when he was granted ILR) to the date of the SSHD decision in July 2013. What is meant by lawful residence may require interpretation in other cases, but the fact of such residence is uncontroversial in this case.

Paragraph 399A(b)

54. In the claimant’s case, the question of whether he meets the requirements of paragraph 399A(b) requires us to weigh up all considerations relevant to social and cultural integration into the UK. In the claimant’s favour, he has been in the UK since 1991 he was 4 and was granted ILR in 1998, which means he has been the UK lawfully for most of his life. His mother, sister and half-brother were naturalised as British citizens in 2003. He did not start offending until he was around 16. He has been to school in the UK. His mother tongue is English: that such a factor should count in the claimant’s favour is lent force by the fact that s.117B(3)(b) of the 2002 Act identifies that persons able to speak English “are better able to integrate into society”. The finding of fact made by the FtT was that he had shown an acceptance of his conduct and that he had engaged in programmes that will assist him in deviating from criminal conduct in the future.

55. On the other hand, his history of offending (repeated robbery) betokens a serious discontinuity in his integration in the UK especially because it shows blatant disregard for fellow citizens. His history of offending includes a conviction for robbery for which he received a sentence of 42 months imprisonment. The significant period of time he has spent in prison in consequence of his offending has excluded him from outside society for that period. We also agree with Mr Jarvis that even when not in prison the claimant’s lifestyle over the period when he was committing offences was manifestly anti-social. This lifestyle and his period in prison have contributed to his not able to show he is financially independent. We have to decide whether he is socially and culturally integrated in the UK in the present. He is now 29. Whilst his recent acceptance of the reprehensible nature of his criminal conduct is an important factor, we consider the negative factors we have just mentioned indicate that his history of criminal offending broke the continuity of his social and cultural integration in the UK and he has not regained it. This means that currently he has not shown he is socially and culturally integrated.

Paragraph 399A(c)

56. Even had we considered the claimant to meet the requirements of paragraph 399A(b), we would still have concluded he fails under paragraph 399A because he fails to meet paragraph 399A(c) and (as explained earlier) to succeed under paragraph 399A, the requirements of both (b) and (c) (as well as (a)) must be met and we are not persuaded that there would be very significant obstacles to his integration into the country to which it is proposed he is deported. We accept there would be significant obstacles: in particular he would be required to overcome the fact that he does not speak Lingala; that he has no experience of living in such a country as an adult or indeed even as a young person (only as an infant). Whilst we do not accept that the respondent has ever resiled from her position set out in her refusal decision that the claimant has uncles in the DRC, for the purposes of this appeal we are also prepared to decide his case on the basis of his own claim as set out in his witness statement that he has no uncles there.

57. But the paragraph 399A(c) test is more stringent: it is not met simply by showing that a person has no close family ties in the country to which it is proposed he is deported; it requires “very significant obstacles to…integration” to be shown. In our judgement the obstacles the claimant faces do not meet this demanding standard. In relation to his command of language spoken in the DRC, it was his own mother’s evidence that he had been brought up in a household where French was spoken. The DRC is a Francophone country. In any event, it was not suggested on his behalf that there would be any reasons related to physical or mental inability preventing him from learning the local language or dialect. As regards his lack of knowledge of the culture, whilst it was his evidence that he identified with British culture, it was not suggested he had specifically rejected or no longer understood his cultural origins. Furthermore, as regards lack of family ties, he is now a young adult and the skills he has acquired through attending classes in prison will assist him in being able to earn a living without the need to be a dependant. Further, we agree with Mr Jarvis that it is reasonable to infer that his mother and/or other relatives here will seek to help him financially, at least until he has had time to find his own feet. We agree with Mr Jarvis that it has not been shown that he would be prevented by reason of any physical or mental ability from developing social and cultural ties in the DRC. He is young, able-bodied and of an adaptable age.

58. For the above reasons we conclude that the claimant does not meet the requirements of paragraph 399A in full – in particular he does not fulfil the requirements of either paragraph 399A(b) or (c).

59. Given our conclusion that he fails to meet the requirements of paragraphs 399 or 399A, the claimant can only succeed under the Rules if able to show, pursuant to paragraph 398 (stage 2 of the Article 8 assessment), that “the public interest in deportation [is] outweighed by other factors where there are very compelling circumstances over and above those described in 399 and 399A”.

60. Mr Mak did not entirely abandon the argument that the claimant could succeed under this provision set out in paragraph 398 but he was realistic enough to accept that it imposed a very high threshold and that, in the circumstances of the claimant’s case, if he could not bring himself within 399A, he was very unlikely to be able to demonstrate very compelling circumstances. Furthermore and in any event, we are entirely satisfied that the claimant’s circumstances come nowhere near meeting this threshold.

The claimant’s case in relation to Part 5A considerations

61. In reaching our conclusion that the claimant cannot demonstrate very compelling circumstances as set out in paragraph 398 we have conducted the proportionality assessment that this requires by applying Part 5A considerations directly. As regards s.117B considerations, whilst s.117B(2) can be said to entitle him to say his ability to speak English is a characteristic that is in the public interest and makes him “better able to integrate into society”, in respect of s.117B(3) he has not been able to show that he has established financial independence free of criminal behaviour. He is not a parent. As regards s.117C(1) and (2), his offences include robbery and related offences for which he received a sentence of 42 months and being more serious than many others, the public interest in his deportation must be greater than if that were not the case. He does not have a qualifying partner or child so as to fall within s.117(5) (Exception 2). In relation to s.117C(4)(Exception 1), we find that for the same reasons that he fails to meet the requirements of paragraphs 399A(b) and (c) he does not meet the requirements of s.117C (b) and (c). We note in this regard that the requirements of s.117C(4) (b) and (c) are identical to those set out in paragraph 399A(b) and (c). Indeed in relation to foreign criminals if the Rules were more harsh than s.117C, they would no longer be a complete code.

62. For the above reasons we find the claimant cannot succeed under the Immigration Rules. He cannot succeed under the first-stage of the analysis of his Article 8 circumstances as embodied in paragraph 399A nor under the second-stage analysis of his Article 8 circumstances conducted under paragraph 398 of the Immigration Rules.

Notice of Decision

63. The appeal is dismissed.

No anonymity direction is made.

Signed Date

Upper Tribunal Judge Storey