‘Integration’ Calls for a Broad Evaluative Judgment

Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 (11 August 2016)

It is nearly impossible to find an immigration judgment at the Court of Appeal level that does not mention any case law at all. The case of Alusine Kamara, a Sierra Leonean resident in the UK since he was a child, was one where Sales LJ dismissed the home secretary’s appeal against the decision of the Upper Tribunal which had allowed Kamara’s appeal on the basis that he was fully integrated into the UK and his deportation as a foreign criminal would interfere with his right to respect for his private life under article 8 of the ECHR. In 1993, Kamara arrived in the UK as a child with his sister. Both of them were under 10 and joined his adult half-sister resident in the UK with indefinite leave to remain and they lived with relatives and in foster care. He grew up in the UK and in August 1995 his sister and him were granted ILR as their half-sister’s dependants. Sales LJ said Kamara is seeking to complete his studies and wants to be employed in the UK. He had lost contact with Sierra Leone completely and it was acknowledged by the home office that he did not know any of the languages spoken there.

His life fell into disarray when in October 2011 he was sentenced to 3½ years imprisonment for possession of class A drugs with intent to supply. His offending made him a “foreign criminal” within the meaning of the UK Borders Act 2007 and section 117C of the Nationality, Immigration and Asylum Act 2002. Although he behaved in an exemplary way during his sentence, he was to be deported upon release from jail. His credibility as a witness impressed the Upper Tribunal and it found him to be a diligent student who expressed remorse for his offending. His initial appeal to the First-tier Tribunal was successful under the Immigration Rules but the decision was set aside by the Upper Tribunal – which then made a fresh decision after conducting a full hearing because of errors at the First-tier level. Applying the relevant law, it made the findings outlined at the outset, i.e. that Kamara was socially and culturally integrated in the UK.

Whether Kamara had any links with his natural mother was a contested point before the Upper Tribunal. His father was a Lebanese national and Kamara was born out of wedlock. But the father later married another woman who moved to the UK when he died in 1992. As ever, the home office was confused yet again. It thought that references to links with his stepmother, who had relocated to the UK, were references to his natural mother whereas in reality his natural mother – with whom he had never lived – could not be traced after disappearing in 1994.

In the Court of Appeal the home office did not quibble with that finding. The question before Moore-Bick and Sales LJJ was whether there would be very significant obstacles to Kamara’s integration into Sierra Leone upon deportation. The Upper Tribunal found the threshold of his reintegration into Sierra Leone to be high – “very significant obstacles” – but since he spoke none of the 23 tribal languages of that country his chances of survival on English alone were low and his unfamiliarity with local culture meant that no evidence pointed towards his reintegration into Sierra Leone’s societal context. He was an outsider with no familial links there and the country’s Ebola epidemic made his reintegration there harder still.

Thus Kamara came within exception 1 in section 117C(4) and within paragraph 399A of the Immigration Rules which meant that weighing the elements in section 117B and section 117C(1) and (2) in the balance, deporting him would breach his article 8 rights and would be disproportionate.

In his discussion, Sales LJ reasoned that the idea of a foreign criminal’s integration into the country of proposed deportation was “a broad one” – under section 117C(4)(c) and paragraph 399A – which is not restricted to finding employment or sustaining life in another country. Holding that it sufficed for judges to generally direct themselves in line with terms chosen by Parliament because it is inappropriate to put a gloss on the statutory language, his Lordship found that:

14. … The idea of “integration” calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.

Rejecting the home office’s excessively demanding approach to the hearing of appeals, he went on to hold:

18. There is no special rule regarding the reasons to be given by a tribunal deciding an immigration appeal. The conventional approach applies. The Upper Tribunal’s decision is to be read looking at the substance of its reasoning and not with a fine-tooth comb or like a statute in an effort to identify errors. In giving its reasons, a tribunal is entitled to focus on the principal issues in dispute between the parties, whilst also making it clear that it has considered other matters set out in the legislative regime being applied.

Hairsplitting by the home office did not come to its aid and Sales LJ was quite dismissive about the bald nature of the arguments put to him on appeal. The court found that no complaint could be made about the fact that Kamara was a young man in good health and capable of working – which the home office construed to mean that the Upper Tribunal was wrong to find that his case fell within exception 1 in section 117C(4) and within paragraph 399A. Equally, no sloppiness was attributable to the tribunal for its conclusion on statute and the rules because as presented the home office’s case in the tribunal did not mount a major submission on exception 1 in section 117C(4) and paragraph 399A and Kamara’s factual situation.

A fair reading of the Upper Tribunal’s decision did not render unfair its hesitation to construe Kamara’s characteristics of being a young man in good health capable of working as invalidating its finding that there would be very significant obstacles to his integration into Sierra Leone. No point was made that the finding that his deportation would be in breach of his article 8 rights could be regarded as irrational or perverse. The tribunal was thus plainly aware of everything in the case, its findings were correct and the appeal was therefore dismissed.

After a raft of recent negative decisions in this area, Sales LJ’s judgment – one where his Lordship probably set a positive example by not conducting a fine-tooth combing exercise himself – is seen as positive news. The outcome in Kamara has been defined as “rare” and “progressive” in the overall genre of article 8 cases with the result that it “has significant implications for many other (non-criminal, non-deportation) cases where persons are relying on their right to private life to justify leave to remain in the UK, including claims by asylum seekers, persons who overstay their leave and victims of human trafficking.”

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 8, Court of Appeal, Immigration Act 2014, Immigration Rules, Public Interest, Settlement, UKBA 2007 and tagged , , , , . Bookmark the permalink.

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