Strike Three For New Rules: Part 1

Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) (08 February 2013) 

Nigeria – Africa’s most populous country – is spearheading the campaign against deportation and Ogundimu is the third case in a row where the judiciary has sent a strong signal to Theresa May, the Secretary of State for the Home Department (SSHD), about the “new rules”. Even though, to an extent, the Upper Tribunal (UT) has sugar-coated its critique of the new rules by respecting the government’s desire to codify the right to a private and family life within the Immigration Rules, like Izuazu and MF (Nigeria) the instant case expands the “learning” on Article 8. 

Conversely, the SSHD, whose preference is “to scrap the human rights act”, has not been able to cloak her anger. Vexed, she claims that judges – who have sabotaged politicians’ efforts to deport foreign criminals –  “ignore Parliament’s wishes.” The paradox, of course, is that the SSHD agrees that respect for human rights is “an essential part of any decent legal system”. In this case, the problem for the SSHD was that Ogundimu’s appeal was allowed on the new rules. 

“A great admirer of most of the judges in Britain”, the SSHD attacks some judges because they “got it into their heads that the ECHR Article Eight ‘right to family life’ could not be curbed”. By not nodding to the laws “made by the elected representatives of the people in Parliament”, judges are accused of “subverting democracy”. Equally, blame lies with them as they wrongly construe her rules as being produced by virtue of “a weak form of Parliamentary scrutiny”.

Yet despite the similarities, there are interesting differences between the reported Article 8/new rules cases. For example, MF entered the UK illegally. He did not have a child with his wife but came to be her daughter’s “father”: a factor that ultimately weighed in his favour. Likewise, despite their marriage, Uchenna Eucharai Izuazu (who lost in the UT) and Julius Akinola had children from past marriages but they did not have any children from their own marriage. And although MF and Izuazu both fell foul of the criminal law, unlike Ogundimu, neither had a drug habit nor did they enjoy settlement rights in the UK.

Background

Ogundimu (O), the appellant, a twenty-nine year old who entered the UK lawfully at age 6+ acquired settlement rights in 1999. His father (F) had lived in the UK for 50 years. O had “a troubled youth” with more than half a dozen appearances before the juvenile courts. As an adult, his criminal career spiralled out of control and he appeared – for offences relating to drug possession and driving – before the criminal courts more than a dozen times. Ultimately, O was convicted for possession of crack cocaine and intent to supply cannabis; he pleaded guilty but said that he sold cannabis to support his cocaine habit. Unimpressed, owing to his persistent offending, the SSHD decided to deport O and that decision was appealed on the basis of O’s long residence and his relationship with his British child JT (9+ years).

O did not attend the hearing, nor did any witnesses, and (long before the “new rules”) in mid-2010 his appeal was dismissed by a First-tier Tribunal judge and a lay member. O lodged his own grounds of appeal but the FTT refused permission; in the interim, a deportation order was singed in respect of O and in September 2011 he was detained after which he acquired legal representation. Article 8 was relied on to revoke his deportation order. Instead, the human rights claim was certified so as to preclude another in-country appeal to the FTT. Removal directions were set but deferred when judicial review papers were lodged on 23 February 2012, the removal date itself!

Out of Time Appeal

Out of time permission to appeal the FTT’s decision was sought a couple of weeks later and – observing that arguably the “best interests of the child have not been considered properly” – using his wide powers an UT judge granted permission.

The SSHD was unhappy but it was agreed that (i) a judge’s grant of permission to appeal was irrevocable (ii) given O’s circumstances, the legislative architecture – section 104(5) of the Nationality, Immigration and Asylum Act 2002 read with section 82(2)(j) – was such that the judge could grant permission to appeal irrespective of the signed deportation order and (iii) the SSHD’s only remedy against enlargement of time and/or grant of permission was judicial review which she had not pursued.

The UT [12] – [22] still considered it apposite to provide analysis/guidance on the Tribunal Procedure (Upper Tribunal) Rules 2008. O had 7 days following the FTT’s refusal of permission to appeal. Although his application was hopelessly out of time but he had a good reason. Judges had “wide powers” but need to act in accordance to the “overriding objective”. Cases need to be dealt with “fairly and justly”. The public interest is important “in there being finality to litigation”: something “of significant interest of both parties to litigation in immigration appeals” where stringent time limits operated [14]. But because immigration control is costly and logistically hard, strict time limits indicative of exhaustion of appellate rights enable clarity in facilitating enforcement action.

Moreover, extensions of time may turn on the (i) length and reasons for any delay, (ii) the merits of the appeal (iii) the degree of prejudice to the respondent if the application is granted. However, under Boktor & Wanis [2011] UKUT 442 the merits cannot be decisive. In the instant case, O’s grounds of appeal said that he had been wrongly advised to make fresh representations rather than seek permission to appeal the FTT’s clearly erroneous decision.

Following Brooke LJ, Moore-Bick and Wilson LJJ’s approach in YD (Turkey) [2006] EWCA Civ 52 where the Court of Appeal held that “significant injustice” coupled with a “strong case” exceptionally justified granting permission to appeal, the UT saw “no reason” why it should behave any differently [19]. But prolonged delay merited increasingly “powerful” reasons: each case turned on its own facts and “significant delay” includes “any period more than 28 days out of time” [20]. Judges granting permission need to consider the public interest in maintaining effective immigration control and if permission is given in cases involving delay exceeding 28 days, “perhaps” the SSHD should be given a chance to object in an oral hearing on seven days’ clear notice [21].

New Rules

Following the grant of permission to appeal, the SSHD supplied further reasons – based on the new rules – why O should be deported and why such action did not breach Article 8 ECHR. Unsurprisingly, the SSHD’s reasons remained embedded in O’s repeat offending – 30 convictions of which three remained unspent. Pursuant to paragraph 398(c) of the Immigration Rules (part 13, deportation), she concluded that O’s deportation was conducive to the public good as a consequence of his offending. The SSHD considered paragraphs 399(a), 399(b) and 399A and she respectively found that (1) O’s relationship with his British son JT was not genuine/subsisting and although it was unreasonable to expect JT to exit the UK, his mother CT was able to care for him (2) O’s relationship with his British partner JD was not genuine/subsisting and although he had lived in the UK with valid leave, no insurmountable obstacles existed to the couple continuing their family life outside the UK and (3) even though O lived in the UK for 20 years he did not demonstrate that he has ‘no ties’ to Nigeria. Thus, there was nothing exceptional about O’s case.

Error of Law

The UT [31] noted that the FTT misdirected itself and made “a serious error of law” by thinking “that Article 8 was not even engaged”. In O’s case Maslov v Austria [2008] ECHR 546 needed to be applied. In outline, since the age of 6, Maslov – a young Bulgarian (but ethnically Turkish) offender – resided lawfully in Austria but was deported to Bulgaria. He complained to Strasbourg and the Grand Chamber held that a ten-year exclusion order imposed on him, because of lack of ties with Bulgaria and strength of ties with Austria, could not be justified as necessary in a democratic society because the offences he had committed (aged 15) were non-violent. In Maslov, the Court explained that:

74. Although Article 8 provides no absolute protection against expulsion for any category of aliens (see Üner,  § 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.

In ZH Tanzania [2011] UKSC 4, Lady Hale JSC [17] highlighted that Maslov “reinforced” Üner v The Netherlands (2007) 45 EHRR 14 and Boultif v Switzerland (2001) 33 EHRR 50. In sum, the following factors were important: (a) nature and gravity of the offence (b) length of the complainant’s residence in the country from which he was to be expelled (c) time elapsed since the commission of the offence (d) complainant’s conduct since that time and (e) strength of his or her social, cultural and family ties with the two countries in issue. Equally, good conduct and the best interests of the child mattered. Unsurprisingly, Maslov has been appended to numerous UT decisions such as MF and Sanade. But the Maslov ruling is not monolithic and remains shrouded in controversy. For example, the Court of Appeal’s decision in D v SSHD [2012] EWCA Civ 39, [32] that “[e]ither an individual’s presence is ‘lawful’ or ‘unlawful’ in immigration terms” has troubled practitioners.

Moreover, private life claims in cases will succeed unless very serious reasons to justify expulsion existed: Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 46 (IAC), see post here, MW (Democratic Republic of Congo) v SSHD [2011] EWCA Civ 1240. Since the FTT remained oblivious to this requirement, suffering from “serious flaws” its decision was “trite law” and could not stand [35] – [36].

Spent Convictions

O complained that in making her case the SSHD relied on his spent convictions. But given the terms of section 7 of the Rehabilitation of Offenders Act 1974 and the case of AA (Spent convictions) Pakistan [2008] UKAIT 00027, the UT was satisfied that justice could not be done without admitting O’s spent convictions – the weight attributed to these, however, was another matter [39] – [40]. O’s entire criminal record was admitted to get a “complete picture” because the SSHD relied on his persistent offending rather than his most recent offence and the spent convictions retained relevance for shedding light on recent offending. A full criminal record disclosing all the details was apposite. A summary did not suffice and the Data Protection Act 1998 could not restrict disclosure [41].

Evidence and Family Life

Addressing several case management issues in an extremely unwieldy situation [42] – [46], the UT was irritated by the SSHD’s failure to comply with its directions “by informing the Tribunal in writing which witnesses would be required for cross-examination” [49]. Further requests for cross-examination based were refused because the SSHD “was in a position, at least a week before the hearing, to be able to properly identify which of those witnesses she wished to cross-examine” [50]. Given that three hearings had already taken place after permission to appeal was granted, “the need for expedition and efficient use of court time was obvious”; failure to cooperate with the UT would have consequences; acceding to the SSHD’s request would merit another adjournment; yet, an allowance was nonetheless made for O and F to be cross-examined.

O said that since his arrival in the UK he returned to Nigeria only once for two weeks. He admitted to making “big mistakes” but said that since JT’s birth he pursued college and made an effort to quit drugs but “slipped up” a few times and was not a habitual cannabis use. Owing to his complex personal life, consisting of more than one partner, he also explained that he “got a few bits mixed up”; “animosity” existed between his past (CT, O’s son JT’s mother) and present (JD, pregnant with O’s child) partners; it is noteworthy O bounced back and forth between the two; he also had another relationship: see [55]. He said that he was clean of cocaine and accepted contradictions about being clean of cannabis – which he had sold to fund his cocaine addiction – in his witness statement. O did not visit CT’s house to meet JT. O met JT at his father or brother’s house who picked up and dropped the child.

JD said that her and O were together for 7 years but they split up and got back together in 2011. JD said that CT was her cousin and that she knew O’s son JT. JD’s own daughter (TS) with another man lived with her and O. JD was unaware of O’s ties to Nigeria.

Moreover, O did not use cocaine anymore and this was reflected in his behaviour as he did not socialise and go out but JD knew that he had been arrested for smoking cannabis.

O’s father (F) confirmed that since arriving in the UK his son had only visited Nigeria once.

Save a 95-year old aunt who lived in the “family village” and some distant relatives, his family no longer lived in Nigeria and that all his siblings had passed away. F confirmed that he had been living in the UK for 52 years and was out of touch with people in Nigeria. F confirmed that O lived with JD.

For more please see part 2.