Silence of the Rules

Green (Article 8 – new rules) Jamaica [2013] UKUT 254 (IAC) (13 May 2013)

The speed with which the immigration rules are changed is overwhelming. Inevitably, many things are overlooked. This is an interesting case where the Upper Tribunal (UT) decided that although legitimate, the immigration rules failed to address differences between juvenile and adult offenders. Moreover, the UT explained that it would only remake a decision where the First-tier Tribunal (FTT) had materially erred in law. 


Aged 7 in 2001, Chris Green (G) entered the UK on a visit visa. Relying on his grandmother, and after making his journey through the appellate structure, G ultimately acquired settlement rights in 2007. But a naughty Jamaican teenager, G landed up in trouble with the law. G’s initial offences related to possessing a bladed instrument/offensive weapon, theft, robbery, attempted robbery and not complying with the terms of a detention and training order (DTO). Ultimately, however, in 2012, G pleaded guilty to 7 offences including acting as a runner in the supply of crack cocaine and heroin. Given that G was aged 16 years at the time of offending (and 17½ when sentenced), the Crown Court sentenced him a DTO for 24 months; subsequently reduced by the Court of Appeal to 18 months. (The DTO can be for a term of 4, 6, 8, 10, 12, 18 or 24 months, half of which is served in detention, the remainder in the community under the supervision of a probation officer, social worker or a member of a Youth Offending Team.)

The Deportation Decision

In light of G’s recidivism, the Secretary of State for the Home Department (SSHD) thought that his offending was persistent, that he was a gang member and thus presented a danger to society and would inevitably re-offend. Arguing that – save in exceptional circumstances – the new rules adequately reflected Article 8’s scope she decided to make a deportation order against G on conducive grounds. Over and above G’s persistent offending, notwithstanding the fact that he spent a greater part of his life in the UK than in Jamaica (10½ out of 17½ years prior to his custodial sentence) reliance was placed on him having ties with Jamaica where his father resided (with whom G’s relationship could be renewed).

First-tier Tribunal

Averring that deportation disproportionately interfered with his private and family life, G – who, wishing to distance himself from criminality, had rehabilitated himself by taking up training courses to enhance his prospects of employment – appealed to the FTT which found in his favour. Following Masih [2012] UKUT 46 (IAC), and applying Maslov [2008] ECHR 546, the FTT considered the sentencing judge’s remarks, G’s age and good behaviour in prison and concluded that he would have no one to turn to in Jamaica and unless he re-offended/re-entered a gang, deportation would be disproportionate.

SSHD’s Appeal

The threefold grounds of appeal alleged that the FTT failed to (1) appreciate Article 8’s new nexus with the immigration rules (2) have regard to the presumption to deport (3) apply the proper test by considering which exceptional circumstances operated to prevent deportation. G’s past gang activity and convictions pointed to the FTT’s failure to absorb the evidence in the case: the FTT overlooked G’s gang connections and let him off easily. The SSHD also reckoned that the FTT wrongly treated G as a settled migrant. G’s counsel did not downplay the seriousness of the situation but rebutted the SSHD’s arguments by identifying his client’s minor role – that of a “foot solider” – in the criminal activity concerned and highlighted the fact that G was a young man who had made amends and had a good chance of rehabilitating himself in the UK.

Upper Tribunal

(1) Immigration Rules: Article 8

Noting that the FTT did not refer to the ECHR or the immigration rules, the UT (at [17] – [18]) nevertheless opined that the FTT was “alive” to both as G’s appeal had been allowed because deportation was evaluated as a disproportionate measure.

The SSHD asserted that in Nagre [2013] EWHC 720 (Admin) Sales J held that the immigration rules and the exceptional circumstances guidance comprehensively addressed Article 8 rights. Observing that the instant case and Nagre were distinguishable, the UT (at [20]) considered that Sales J upheld Izuazu [2013] UKUT 45 (IAC) and endorsed the two-stage approach to Article 8 in MF [2012] UKUT 393 (IAC): Sales J, however, introduced the caveat that save where exceptional circumstances existed the second stage – evaluating Article 8 proportionality – was not always necessary “where the rules and the learning on Article 8 were in harmony”. Thus, in light of Izuazu, MF and Ogundimu [2013] UKUT 60 (IAC) in dealing with post-new rules decisions the tribunal should first consider the immigration rules, make the necessary findings and then move on to decide whether – in light of the established jurisprudence – exceptional circumstances unforeseen by the rules exist or the decision is unlawful and disproportionate to the legitimate aim of controlling immigration.

Noting that although the FTT was conscious of the task at hand it did not determine whether G had “no ties” to Jamaica (and if he did there was a failure in respect of how these weighed in the Article 8 balance), the UT opined (at [23]) that assuming that was a failure it was not grave enough to “effect the overall decision in the case.” The UT was content that the error was immaterial: it did not affect the overall result because the FTT found that G had no ties with Jamaica, the rules did not reflect the principles of Article 8 case law and factors amounting to exceptional circumstances.

G did not have any prospect of being supported in Jamaica or in the U.S. (where his mother lived) and the UT gave weight to the 2007 tribunal decision – emphasising serious and compelling family or other considerations for allowing his appeal – granting G settlement in the UK as his maternal grandmother’s dependant.

In Ogundimu (at [123]), “ties” was construed to involve a “continued connection to life” in the proposed country of deportation. In G’s case, time spent in the UK since acquiring settlement reduced his ties to Jamaica. So the SSHD’s belief that re-establishing contact with G’s estranged father was not the same thing as having ties with him: in any event neither the 2007 or the 2012 tribunals considered resumption of such ties as realistic (at [27]).

Significantly, the UT (at [28]) explained that the immigration rules (part 13, deportation and Article 8, paragraph 398) did not cater to juvenile criminals: as contemplated by the rules, “imprisonment” was excluded in G’s case by section 89 (restriction on imposing imprisonment on persons under 21) of the Powers of Criminal Courts (Sentencing) Act 2000. However, section 38 (interpretation) – subsections (1)(c) and (2)(b) – of the UK Borders Act 2007 treats a term of detention of a young offender as a period of imprisonment. Yet section 33(3) – exception 2 –  of the 2007 Act exempted from automatic deportation persons under the age of 18 at the date of conviction which is why the SSHD took the decision pursuant to paragraph 398(c) which speaks of “persistent offender who shows a particular disregard for the law” but is silent about the offender’s age when the offence was committed.

In comparison, there is clear steer in the Maslov judgment (at [72]) that the age at which the offence was committed will impact the criteria set out by the Grand Chamber, i.e. the (a) nature and seriousness of the offence committed (b) length of stay in the country of expulsion (c) time elapsed since the offence was committed and the concerned person’s conduct during that period and (d) solidity of social, cultural and family ties with the host country and with the country of destination.

In JO (Uganda) [2010] EWCA Civ 10, Richards LJ (at [21]) concurred with Strasbourg and explained that the contracting state would require “very serious reasons” to justify expelling a lawfully settled migrant such as G who had offended as a juvenile and spent most of his life in the host country.

The UT affirmed this in Masih, and despite the contents of the rules, the FTT’s neglect of this approach in G’s case would have amounted to an error of law. Equally, the UT’s jurisprudence – Izuazu and Ogundimu – mean that primary legislation must be followed where the rules do not reflect the law. Since the rules not only failed to consider G’s age when he offended but also did not alert the decision-maker “to the solidity of the ties as opposed to their mere existence” (at [31]), the FTT was right to dwell on G’s age and his weak ties with his father. Likewise, because the rules remained silent on age, the FTT’s conclusion on Article 8 ECHR was appropriate as Nagre required Article 8’s principles to be exceptionally examined in G’s case.

(2) Gang Membership

G’s activity in the “QC gang” was not ignored by the FTT and following the UT’s guidance in Masih the FTT did in fact consider the trial judge’s remarks that the QC gang was not a professional criminal gang: instead, the QC gang was “sad and pathetic” consisting of “the miserably inadequate”. Yet the judge was concerned that young persons like G “must be regarded as being vulnerable and potentially victims themselves”. So, for the trial judge, at best G was “a young man in need of discipline” and the UT (at [33]) was confident that the Court of Appeal (which reduced G’s sentence) did not take a grimmer view of G’s “criminality and prospects.” Noting that the FTT also clarified that were G to return to the QC gang and re-offend he would be deported, the UT added (at [36]) that, despite the absence of sentencing remarks, where relied upon in making a deportation decision, following Bah [2012] UKUT 196 (IAC) the FTT would need to take on board conduct not resulting in a criminal charge or conviction.

Although the sentencing judge did not “aggravate the sentence” inflicted upon G by reference to intelligence material on the QC gang, for the UT (at [37]) “[t]his is not a restraint that would be applicable to a panel in a deportation appeal” and a “continued association with gangs who commit violent conduct would amount to the weighty reasons justifying the expulsion of even a young offender who has spent much of his childhood in the United Kingdom.” But in the instant case, the FTT let it be known that while G was “vulnerable to the inducements of gang life” future relapses to his “former way of life” would entail consequences and so given that there was no error of law the UT was not entitled to re-make the decision because the assigning of weight by a fact finding tribunal “will rarely give rise to an error of law” (at [38]).

(3) Immigration Status: Settled Migrant?

Given that G entered the UK lawfully as a child and was not an immigration offender, the UT emphatically rejected (at [39] – [40]) the idea that G’s immigration status weighed against him in the proportionality balance.

(4) Disposal

The UT ([41] – [43]) dismissed the SSHD’s appeal because, as a 19 year old, G was aware of the consequences of resuming his association with criminality or committing a “significant offence”. Moreover, the only arguable error of law – the FTT’s failure to apply paragraph 399A(b) to G’s case – lacked materiality. In light of the terms of section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, the UT was not obliged to re-make the FTT’s decision.

(5) Headnote

  • In Nagre v SSHD [2013] EWHC 720 (Admin) the Administrative Court approved the guidance of the Upper Tribunal in Izuazu [2013] UKUT 45 (IAC) in turn endorsing the two stage approach recommended by the Upper Tribunal in MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC).  Sales J added the proviso that it would not always be necessary to move on to the second stage and consider Article 8 proportionality apart from the provisions of the Immigration Rules. Where the rules and the learning on Article 8 were in harmony the answer given by the rules might render further inquiry unnecessary, unless there were exceptional circumstances.  In that case the difference between the rules and the Strasbourg principles was marginal.
  • It follows from that case, and the decisions of the UT in Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) that judges hearing appeals against decisions made after 9 July 2012 should consider how the Immigration Rules would apply, and make any relevant findings in that context before considering the wider application of Article 8 and the jurisprudence of the Upper Tribunal, and the higher courts, either to decide whether there are exceptional factors not contemplated by the Rules or that the decision is an unlawful one and disproportionate to the legitimate aim.  Pending any further guidance from the Court of Appeal, judges of both chambers should apply the principles set out in Izuazu.
  • Paragraph 398 of the Immigration Rules makes no reference to persons who commit crimes as juveniles.  By contrast the decision of the Grand Chamber in Maslov v Austria [2008] ECHR 546 is clear that “when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult”.
  • As the Upper Tribunal has explained in Izuazu and Ogundimu, where the Immigration Rules do not reflect the established principles under human rights law it is the law as laid down in primary legislation that must be followed. 
  • Adding to what the Tribunal said in Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 46 (IAC), where the course of conduct relied on in the deportation decision includes conduct that has not resulted in a criminal charge or conviction, the Tribunal will need to take that conduct into account despite the absence of sentencing remarks (see Bah (EO (Turkey) – liability to deport) [2012] UKUT 196 (IAC)).

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Cases, Crime, Immigration Rules, Tribunals and tagged , , . Bookmark the permalink.

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