An Afterthought on Private Life

Bossadi (paraagraph 276ADE; suitability; ties) [2015] UKUT 42 (IAC) (28 January 2015)

This case concerned a national of the Democratic Republic of the Congo (DRC), one Mr Bossadi, who had been convicted more than half a dozen times for committing a string of offences, including robbery, between 2002 and 2011. A sentence of 42 months’ imprisonment was imposed on him for his crimes. In 2013, it was decided that a deportation order in accordance with section 32(5) of the UK Borders Act 2007 would be appropriate because he was a foreign criminal sentenced to a period of imprisonment of at least 12 months and could not avail any of the exceptions in section 33 of that Act. That decision was appealed and the First-tier Tribunal panel allowed Bossadi’s appeal under the ECHR (on the basis of article 3 and article 8) and paragraph 276ADE of the immigration rules. Unhappy with the panel’s decision, the Home Office appealed to the Upper Tribunal and Storey and Dawson UTJJ allowed the appeal because the First-tier panel materially erred in law in several respects and its reasoning as regards article 3 was “seriously deficient”.

The First-tier panel arrived at its conclusion because it felt that Bossadi arrived in the UK at the tender age of 4 and he would be at risk in relation to article 3 in the event of his removal to the DRC. First of all, the Upper Tribunal was unimpressed with the First-tier panel’s English language skills. In addition to general issues related to spelling and grammar, the Upper Tribunal was equally unimpressed with the First-tier panel’s application of P (DRC)[2013] EWHC 3879 (Admin) where, accepting that he could not bind the Home Office, Philips J held that:

54. … Indeed, in my judgment there is a real and substantial risk that P, in common with other criminal deportees (who have served the sentences imposed on them for their crimes in this country), would be subjected to further imprisonment and ill-treatment if returned to the DRC.

On the other hand, at para 55 Philips J urged the Upper Tribunal to consider giving further country guidance to clarify the article 3 issue. He said that he could not bind the Home Office in relation to other cases involving the deportation of convicted criminals to the DRC. He, however, held that such persons have a strong claim for asylum and should not be deported to the DRC unless and until there is a clear basis for believing that the associated risk does not arise in a particular case or no longer arises generally.

For Storey and Dawson UTJJ, the First-tier panel was not specific enough about why it arrived at its conclusion: it failed to specify in light of the evidence why it was following P (DRC); Bossadi and his mother’s evidence about the consequences of his deportation was mentioned by the First-tier panel but it was imprecise which made it difficult to tell what evidence concerning risk on return was being alluded to. Similarly, the success of appeal under the private life rule was also in doubt because in allowing the appeal on the basis of 276ADE(vi) – i.e. the appellant has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK – the First-tier panel failed to grasp that the suitability criteria are central to paragraph 276ADE.

According to the Upper Tribunal, the suitability criteria “are an integral part of paragraph 276A” because they preclude foreign criminals from relying on their private life to frustrate the rules in part 13 which are designed to ensure their deportation. Applying the rules, the tribunal found that Bossadi fell foul of S-LTR 1.2, 1.4 or 1.5, i.e. he was the subject of a deportation order and his presence in the UK was not conducive to the public good because of the intensity of the senetence imposed and the persistance of his offending.

Moreover, the First-tier panel also erred in law because it allowed the appeal on the rules and did not find it necessary to make a separate finding on article 8 but was nonetheless convinced that Bossadi would have in any event succeeded on the “freestanding” article 8. To Storey and Dawson UTJJ’s minds, it was “difficult in any event to sever the two decisions”. Even more problematically, in its analysis of paragraphs 399 and 398, the First-tier panel had clearly found that Bossadi’s deportation was conducive to the public good but it had failed to adequately explain why the public good served by his deportation was outweighed by other factors.

Postulating that Bossadi “perhaps now would not reoffend” was insufficient reasoning because in light of and YM (Uganda) [2014] EWCA Civ 1292 (see here) and Ogundimu [2013] UKUT 60 (IAC) (see here), a rounded assessment was required as regards whether his familial ties could result in support to him in the event of his return to the DRC. Although Strasbourg required the decision-maker to assess both subjective and objective considerations and to consider what lies within the choice of a claimant to achieve, the First-tier panel had looked at family ties purely subjectively. It attached too much weight to what the witnesses said and that was not the same as Bossadi having no effective family ties in the DRC.

In addition to the objective and subjective dimension to the assessment, the the First-tier panel was obliged to consider, as a relevant consideration, whether ties that are dormant can be revived in accordance with Balogun v UK [2012] ECHR 614 where it was accepted that the tie between a Nigerian applicant and his mother in Nigeria was “not a strong familial tie” but that “it is one that could be pursued and strengthened by the applicant if he chose”.

Thus, the First-tier panel’s flawed decision was set aside. The appeal was fixed for an Upper Tribunal hearing later this month for the decision to be re-made in light of the impending/awaited fresh country guidance about returning persons with criminal convictions to the DRC. In re-making the decision, the Upper Tribunal said that it required specific submissions on Bossadi’s position vis-à-vis the new section 117C of the Nationality, Immigration and Asylum Act 2002 which entered into force on 28 July 2014.

In times when immigration in general and deporting foreign criminals in particular remain crucial election issues, making it clear that deportation cases “should not be postponed further unless absolutely necessary”, the Upper Tribunal gave the following guidance:

(1) Being able to meet the requirements of paragraph 276ADE of the immigration rules requires being able to meet the suitability requirements set out in paragraph 276ADE(1). It is because this subparagraph contains suitability requirements that it is not possible for foreign criminals relying on private life grounds to circumvent the provisions of the rules dealing with deportation of foreign criminals.

(2) The requirement set out in paragraph 276ADE (vi) (in force from 9 July 2012 to 27 July 2014) to show that a person “is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”, requires a rounded assessment as to whether a person’s familial ties could result in support to him in the event of his return, an assessment taking into account both subjective and objective considerations and also consideration of what lies within the choice of a claimant to achieve.

Comment

In the first case on article 8 and the new rules, i.e. MF (Nigeria) [2012] UKUT 393 (IAC)(see here), eager to “make a start”, Storey UTJ, who seems to be having second thoughts nowadays, was rather more upbeat and enthusiastic about what he described as the tribunal judiciary’s constitutional task to seek, pursuant to their duty under section 6 of the Human Rights Act 1998, to “strike a fair balance”.

Resisting the Home Secretary’s drive to browbeat the judiciary, Storey UTJ allowed MF’s appeal but – perhaps to his surprise – was later corrected on his legal exposition, albeit on “form and not substance”, by Sir John Dyson MR (who was careful not to disturb the tribunal’s decision). With respect to Storey UTJ, and without prejudice to his learned findings in the instant case, perhaps in fulfling their duty, him and his colleagues can take the trouble to deconstruct, with a similar degree of diligence and precision, the First-tier Tribunal’s errors of law in cases where meritorious appeals in less contentious cases have been wrongly dismissed.

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 3, Article 8, Asylum, Human Rights Act, Immigration Act 2014, Immigration Rules and tagged , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s