AS (Iran) v Secretary of State for the Home Department [2017] EWCA Civ 1284 (23 August 2017)
AS entered the UK aged nine with his mother under the family reunion rules because his father had been granted indefinite leave to remain as a refugee who had fled persecution in Iran. But he developed a serious criminal record. Unlike his mother, he did not acquire British citizenship and was thus a “foreign criminal” holding Iranian nationality. The authorities sought his deportation and the decision-maker assessed that the public interest in the deportation of foreign criminals was not outweighed by AS’s article 8 rights. However, the First-tier Tribunal allowed his appeal. However, the Upper Tribunal set aside the decision because of the judge’s failure to consider the effects of the provisions relating to article 8 and the public interest contained in sections 117A-D of the Nationality, Immigration and Asylum Act 2002 and the changes in the Immigration Rules effective as of 28 July 2014. Thereafter, the Court of Appeal held that in evaluating whether the public interest in deportation is outweighed the “very significant obstacles” test to integration (into the country to which a foreign criminal’s deportation is proposed) entails taking a broad evaluative judgment and it includes considering “generic” factors such as intelligence, employability and general robustness of character. AS’s convictions included attempted robbery (2009) and possession of an offensive weapon (2011).
Further convictions for robbery/attempted robbery and handling stolen goods (2013) meant that AS received three years’ detention in a Young Offenders Institution after which a decision was made to deport him to Iran. His offending was aggravated because he opportunistically pre-planned his crimes and committed them at night by targeting young “posh” people by holding them at knifepoint. Analysis of his 2013 offences found a propensity to commit offences for personal gain. He was thoughtless about the impact his crimes had on his victims. His risk of re-offending was assessed as “medium”. Since he completed his GCSEs and pursued a course in business studies, the Youth Offending Team evaluated him as “academically capable”. AS’s appeal succeeded because the first-tier judge applied an outdated version of paragraphs 398, 399 and 399A of part 13 of the rules and found that there would be very significant obstacles to his integration in Iran because he lacked family ties there and only had weak social and cultural links to that country. He judged that the compelling public interest considerations supporting deportation were not sufficiently serious to outweigh the consequences of interference with AS’s private and family life.
The Upper Tribunal
The Upper Tribunal held that the first-tier judge’s decision was flawed and contained a material error of law owing to his failure to consider the revised Immigration Rules. Applying the former rules, the judge wrongly focused on AS’s ties to Iran and made an unnecessary excursion into stale authorities such as MF (Nigeria) [2013] EWCA Civ 1192 and Ogundimu (Article 8 – new rules) [2013] UKUT 60 (IAC). Remaking the decision, the Upper Tribunal was unconvinced that the obstacles to AS’s integration were significant because he was intelligent, academically capable, able to speak Farsi and his mother’s extant connections and friendships in Iran meant that he would be able to reintegrate in that country.
The Upper Tribunal took a multidimensional view of integration. The government’s appeal was allowed in light of the finding that AS would be able to adjust to life in Iran and forge integrative links there. He would be able to adapt to Iranian culture and work by applying his skills as a mechanic or work repairing cycles (in which field he completed a course). Very compelling circumstances outweighing the public interest in deporting him did not exist in his case despite evidence from a clinical psychologist that verified that he experienced domestic violence as a child and suffered trauma as a result.
The Appeal
AS appealed the Upper Tribunal’s findings on two grounds.
First, the “non-existent” or differences “of vanishingly small significance” between the two new and old versions of the rules did not mean that the new test demanded a greater degree of stringency. If anything, it only represented a slight change of emphasis because ties and integration were opposite sides of the same coin. Therefore, the first-tier judge’s conclusion was not substantively wrong.
Second, the Upper Tribunal decision was “seriously flawed” as it incorrectly set the bar too high focusing on adaptation rather than integration and the factors identified by it should have led it to find that AS would face very significant obstacles to integration in Iran. “Generic” factors disconnected or irrelevant to the issue of ties played no part in the exercise of determining that very significant obstacles do not exist. Moreover, such a finding was incapable of being underpinned by generic factors alone; which were irrelevant in any event.
The Court of Appeal
Rafferty, Irwin and Moylan LJJ unanimously dismissed the appeal on both grounds.
AS argued that the rules seek to give force to the criteria laid down by the ECtHR and need to be interpreted consistently with the Strasbourg jurisprudence, particularly the authorities of Boultif v Switzerland (2001) 33 EHRR 50, Üner v The Netherlands App no. 46410/99 and Maslov v Austria (2008) 47 EHRR 20 which exacted “very serious reasons” to justify AS’s deportation. Domestic analyses engaging with Strasbourg authorities can be found in JO (Uganda) [2010] EWCA Civ 10, Akpinar [2014] EWCA Civ 937 and Hesham Ali [2016] UKSC 60 (see here) and the meaning of ties has been explored in Ogundimu and YM (Uganda) [2014] EWCA Civ 1292 (see here).
As a preliminary point, the Court of Appeal rejected the submission that the word “most” in paragraph in 399A(a) indicates a qualitative assessment or test and not a quantitative assessment. The court rejected the argument as “untenable”. Moylan LJ said that lawfully resident in the UK for most of his life is undoubtedly a quantitative expression.
The Home Office relied on AJ (Angola) [2014] EWCA Civ 1636. It also argued that the first-tier judge failed to cite and apply sections 117A-D or the rules in the form applicable and the old version of the rules was a materially different in approach. AS conceded in the Upper Tribunal that issues of “no ties” and “very significant obstacles” were not the same and the first-tier judge’s decision contained an error of law. No reasoned analysis explained the application of the incorrect provisions to AS. Relying on Akpinar, the Home Office argued that the Upper Tribunal’s conclusions were unassailable and symbolised the right approach to integration and the proportionality of interference with his AS’s article 8 rights.
Moylan LJ made some observations on the cases involved. Starting with Hesham Ali, he recalled Lord Reed’s analysis that subject to supervision national authorities retain a margin of appreciation and within set parameters the ECHR is capable of accommodating the judgments made by national legislatures and governments. The immateriality of an error of law was explored in AJ (Angola) where Sales LJ formulated two categories of cases where an error did not change the outcome, i.e. that upon considering the same materials (i) any rational tribunal must have come to the same conclusion or (ii) despite failing to refer to the correct law, the tribunal has in fact applied the test which it was supposed to apply. Essentially, substance must prevail over form in those circumstances.
Applying AJ (Angola), it was clear that the Upper Tribunal did not err by holding that the first-tier decision was wrong and Moylan LJ held that it was “plainly right” to allow the government’s appeal because first-tier judge had led himself down somewhat of a garden path “both in terms of form and substance.” The judge failed to apply sections 117A-D. Moreover, dwelling on the earlier incarnation of the deportation rules, he remained preoccupied with AS’s ties to Iran and failed to address the issue of very significant obstacles. The error of law was inescapable.
AJ (Angola) did not aid AS. Moylan LJ rejected the submission that the differences between the old rules and the new rules were insignificant. Under YM (Uganda) the old rules required a rounded assessment of all the relevant circumstances whereas Kamara [2016] EWCA Civ 813 warranted the use of a broad evaluative judgment. Moylan LJ held that the assessment and the evaluation are conducted in the context of the different formulations which provide the relevant framework. The first-tier judge had fallen into error by adopting too narrow an approach and overlooked taking potentially relevant factors into consideration. In Kamara, the court had observably warned against putting a gloss on the statutory language.
As regards the second ground of appeal, Moylan LJ did not think that the Upper Tribunal’s reasoning was flawed because it conducted a broad evaluation on the issue of very significant obstacles to AS’s integration in Iran. Considering the expert evidence, the Upper Tribunal evaluated the obstacles to integration and the factors which would facilitate or assist with integration. Contrary to AS’s claims, the Upper Tribunal’s references to his ability to “adapt to life in Iran” were not conflated with the issue of obstacles to integration. Moylan LJ therefore held that:
58. I do not consider that Mr Buley’s categorisation of some factors as “generic” is helpful. Consideration of the issue of obstacles to integration requires consideration of all relevant factors some of which might be described as generic. What Mr Buley identified as “generic” factors, as referred to above, can clearly be relevant to the issue of whether there are very significant obstacles to integration. They can form part of the “broad evaluative judgment” as is specifically demonstrated by the reference in Kamara to “good health” and “capable of working”.
The Upper Tribunal’s decision was unimpeachable. In any event, the broad evaluation required when the court is considering obstacles to integration was clearly capable of including the extent to which a parent’s ties might assist with integration. The result was symmetrical with the decision in Ogundimu, approved in YM (Uganda), which clearly contemplated:
124. … any ties that could result in support to the appellant in the event of his return there.
Overall, Moylan LJ completely concurred with the Upper Tribunal’s rationale regarding the multidimensionality of integration. Safeguarding against placing a gloss on the statutory language – something Sales LJ explicitly disapproved of in Kamara – his Lordship roundly rejected the submission that whether someone is “enough of an insider” must be determined by reference to their ties or links to the country of proposed deportation.
Comment
At first blush, this seems to be yet another a negative judgment for immigration appellants in an already hostile environment. However, if the facts are turned on their head, it may well be that it does in fact contain a silver lining for certain categories of people who have not made a career of holding up posh people at knifepoint.
If the picture is inverted and the ratio of this decision is applied to an old illiterate and mentally incapacitated person who seeks leave to remain as an adult dependant relative (ADR) rather than a young foreign career criminal, then the notion of integration being multidimensional may well assist their case because none of the generic factors mentioned by Moylan LJ – i.e. intelligence, employability and general robustness of character – will be countable as constituting any integrative links to the country of origin.
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