United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003288
	First-tier Tribunal No: HU/00271/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 25 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE SHERIDAN

DEPUTY UPPER TRIBUNAL JUDGE STERNBERG

 

Between

 

Yahya Mohammed

(NO ANONYMITY ORDER MADE)

Appellant

and

 

Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Mr M Gill KC, counsel instructed by Taj Solicitors

For the Respondent: Ms S Cuhna, Senior Home Office Presenting Officer

 

Heard at Field House on 14 February 2025

DECISION AND REASONS

 

Introduction

1.               The appellant was granted permission to appeal the decision of First-tier Tribunal Judge Oxlade who dismissed the appellant's appeal, following a hearing which took place on 16 April 2024. That appeal challenged a decision to refuse his human rights representations dated 2 February 2024, following a deportation order made by the respondent on 1 February 2024

2.               Permission to appeal was granted by Upper Tribunal Judge Hirst on 16 December 2024. The decision granting permission to appeal made clear that permission was granted only on ground 2, relating to whether there were very significant obstacles to the Appellant's reintegration in Bangladesh. Paragraph 9 of Judge Hirst's decision explicitly stated that permission to appeal was refused on grounds 1 and 3, relating to the First-tier Tribunal Judge's approach to Section 117C(4)(b) of the Nationality Immigration and Asylum Act 2002 ('the 2002 Act) and section 117C(6) of that Act respectively. However, the Judge's decision was not accompanied by a direction limiting the grant of permission to appeal to ground 2 only under Upper Tribunal Rule 22(2)(b). This is a matter to which we will return below.

3.               No anonymity direction was made previously and no such application was made.

Factual Background

4.               The appellant is a national of Bangladesh now aged twenty five who entered the United Kingdom with his mother on 19 September 2006, when he was seven years old. While he is a citizen of Bangladesh, he was born in the United Arab Emirates. His mother sought indefinite leave to remain outside the immigration rules with the appellant as a dependent, on 2 March 2011. That application was refused on 8 April 2011 and reconsidered on 11 August 2015. He was granted further discretionary leave to remain on 6 January 2016 until 6 January 2019. On 17 December 2018 the appellant, through his representatives, sought further leave to remain.

5.               Meanwhile, the appellant acquired a number of convictions for criminal offences. He was convicted on 30 June 2016 at East London Youth Court for possession of cocaine, possession of cannabis, driving offences and resisting or obstructing a police officer and he was sentenced to a referral order for a period of 8 months. Between 2016 and 2021 the appellant was convicted of a number of other offences including dangerous driving, criminal damage, possession of drugs, drug driving and public order offences. Most significantly, on 25 May 2022 the appellant was convicted in the Crown Court at Snaresbrook of affray, possession of a bladed article, possession with intent to supply a class A drug, being involved in the supply of class A drugs, possession of cannabis and driving whilst disqualified. He was sentenced to a total of 5 years imprisonment. He was further convicted on 7 July 2022 for two further counts of being concerned in the supply of class A drugs and one count of being concerned in the supply of class B drugs and he received a sentence of 3 years imprisonment. A notice of decision to make a deportation order was made on 12 July 2022. The appellant made representations and a human rights claim in response. On 1 February 2024 the Respondent signed a deportation order and by a decision dated 2 December 2024 the appellant's human rights representations were refused.

The decision of the First-tier Tribunal

6.               The appellant appealed against that decision to the First-tier tribunal. The First-tier Tribunal judge dismissed the appellant's human rights' appeal; the judge found that the appellant did not meet the threshold for establishing a real risk that his removal would give rise to a breach of his rights under article 3 of the European Convention on Human Rights ('ECHR'). In relation to article 8 ECHR the Judge found that the appellant was not socially and culturally integrated into the UK and therefore did not meet the requirements of section 117C(4)(b) of the 2002 Act. Further, in relation to whether there would be very significant obstacles to the Appellant's integration in Bangladesh, the Judge concluded that ' Any hardships will not reach the level of "bleak", which is the harsh test which is applied', and therefore that the requirements of section 117C(4)(c) of the 2002 Act were not met. The judge also found that that there were no very compelling circumstances under section 117C(6). The appellant sought permission to appeal to the Upper Tribunal, permission to appeal was granted by Upper Tribunal Judge Hirst on 16 December 2024 in the terms described at paragraph 2 above.

The appeal to the Upper Tribunal

7.               The appellant sought permission to pursue three grounds of appeal:

                                               i.       That the First-tier Tribunal Judge erred in concluding that the appellant is not socially and culturally integrated in the UK under section 117C(4)(b) of the 2002 Act.

                                             ii.       That the First-tier Tribunal Judge applied the wrong test in relation to whether the appellant faced very significant obstacles to integration under section 117C(4)(c) of the 2002 Act.

                                           iii.       That the First-tier Tribunal Judge's assessment of proportionality both under section 117C(6) and article 8 generally was flawed, failed to set out the relevant legal test and failed to take into account relevant evidence and reached wrong or unreasonable conclusions.

8.               The Respondent did not file a rule 24 response.

9.               As we note above, Judge Hirst's decision granting permission to appeal stated on its face that permission to appeal was granted on ground 2 but refused on grounds 1 and 3. That decision was not accompanied by a direction under Upper Tribunal Rule 22(2)(b) limiting the grounds on which permission to appeal was granted.

The error of law hearing

10.           The matter comes before us to determine whether the decision contains an error of law and, if it does, whether to re-make the decision or remit the appeal to the First-tier Tribunal to do so. We were provided with a hearing bundle running to 561 pages including the grant of permission, the grounds of appeal, the First-tier tribunal's determination, both parties bundles from the hearing before the First-tier Tribunal and other relevant documents.

11.           The hearing was attended by representatives for both parties as above. We heard submissions from both sides, summarised below.

12.           At the end of the hearing we reserved our decision which we now give.

Legal Framework

13.           The appellant argues that his removal from the United Kingdom would be a breach of the United Kingdom's obligations under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The burden of proof is on the appellant to establish an interference with his rights under Article 8(1) ECHR and the standard of proof is the balance of probabilities. The burden is then upon the Secretary of State to establish to the same standard that the interference is justified under Article 8(2) ECHR.

14.           Section 32(4) of the UK Borders Act 2007 ('the 2007 Act') provides that "the deportation of a foreign criminal is conducive to the public good". Sub-section 5 requires the Secretary of State to make a deportation order in respect of a "foreign criminal," defined as a person who is not a British citizen and who is convicted in the UK of a criminal offence for which they are sentenced to a period of imprisonment of at least twelve months, unless it would be a breach of a person's rights under the European Convention on Human Rights ('ECHR'). Foreign criminals are divided into categories which include: those with sentences of between one and four years imprisonment (medium offenders) and those sentenced to four years or more (serious offenders). There is no dispute that in this case the appellant falls into the latter category,

15.           Part 5A of the 2002 Act was introduced by the Immigration Act 2014 with effect from 28 July 2014.

16.           When considering whether deportation is justified as an interference with a person's right to respect for private life and family life under article 8(2) of the ECHR, section 117A(2) of the 2002 Act requires decision makers to have regard in all cases to the considerations listed in section 117B, and in cases concerning the deportation of foreign criminals to the considerations listed in section 117C.

17.           The relevant parts of section 117C of the 2002 Act, provides:

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where-

(a) C has been lawfully resident in the United Kingdom for most of C's life,

(b) C is socially and culturally integrated in the United Kingdom, and there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

18.           In SSHD v Kamara [2016] EWCA Civ 813 Sales LJ held at [14]:

 

In my view, the concept of a foreign criminal's "integration" into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or tribunal simply to direct itself in the terms that Parliament has chosen to use. 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.

Submissions

19.           At the start of the hearing we raised with the parties that, notwithstanding the terms of Judge Hirst's decision to limit the grant of permission to appeal to ground 2 only, that decision was not accompanied by a direction under Tribunal rule 22(2)(b). In light of the Upper Tribunal's decision in EH (PTA: limited grounds; Cart JR) Bangladesh [2021] UKUT 117 (IAC) we invited the parties to address this issue in their submissions. For the appellant, Mr. Gill Kings Counsel accepted that the terms of the grant of permission were clear, albeit he submitted that the arguments advanced under ground 1 were incorporated into ground 2 in the grounds of appeal themselves. He developed his submissions further in argument.

20.           Mr. Gill KC submitted that the test the judge applied in relation to very significant obstacles under section 117C(4)(c) of the 2002 Act was the wrong one. The First-tier Tribunal judge ought to have shown they understood the test in their reasoning and the language they used. That was plainly material. The judge's failure to focus on whether the appellant was enough of insider and whether he understood his community must impact on the final decision and must be material. While ground one is not pursued as a standalone ground the matters raised under that head are relevant to ground two. Those are factors relevant to whether the appellant cannot integrate. The appellant seeks to rely on number of factual matters including his ability to re-establish relationships in Bangladesh. These evidential matters are plainly material to the First-tier Tribunal Judge's error. Any remaking of the decision will by necessity look at the appellant's experience in the UK, the up-to-date factual position and will require further psychiatric evidence. It was not possible to obtain a detailed psychiatric report during the time that the appellant was imprisoned. The error on the part of the First-tier Tribunal is clear; the relevant test was not applied. As the judge did not accurately cite the correct test, that is a material error of law. The judge did not properly analyse the evidence, finding that the appellant was mentally fit and well, when there was evidence to the contrary. In the alternative, given there is no direction limiting the grant of permission to appeal, ground one is also arguable and ought to be considered either on its own or as part of ground two. The case should be remitted to the First-tier Tribunal for a further hearing involving extensive fact finding.

21.           Ms. Cuhna accepted at the outset of the hearing that the First-tier Tribunal Judge had applied the wrong test in relation to very significant obstacles at paragraph 39 of the determination. The question for us was whether that amounts to a material error of law. She submitted that the grant of permission to appeal was unequivocally worded. The other grounds the appellant pursues are essentially disagreements with the First-tier Tribunal Judge's findings or assertions that their conclusion were perverse. The Judge had the benefit of hearing the appellant's evidence and this tribunal should not go behind it unless there was a material error of law. In Lowe v SSHD [2021] EWCA Civ 62 the Court of Appeal explained why it was important not to go behind the First-tier tribunal's decision just because the appellant disagrees with it. It is not open to the appellant to raise the matters relied on under the head of ground one through the lens of ground two. Although the judge below applied the wrong test to very significant obstacles, this Tribunal should nonetheless look at the First-tier Tribunal Judge's approach to the issue of whether the appellant was enough of an insider. The First-tier Tribunal Judge considered the appellant's ability to speak Bengali as well as his interactions with the Bengali community in London. There is no dispute that the First-tier Tribunal Judge was correct in making those findings and those conclusions are relevant to whether there are very significant obstacles, namely whether a person is enough of an insider. The First-tier Tribunal Judge also found that the appellant has family in the UK who can send him money and can support him financially and in making contacts. His mother's and sister's evidence to the First-tier Tribunal showed that they provide support to him. The First-tier Tribunal Judge's findings do make sense in the context of considering whether there are very significant obstacles. The Judge's conclusion that the appellant was fit and well enough to work was grounded in the evidence. There was no separate challenge to the Judge's conclusions on Article 3 ECHR. The judge did what they were meant to do applying the relevant law. They considered factors relevant to whether the appellant was enough of an insider, his ability to speak the language, to form bonds and to operate as part of that community. The fact that he was born in Dubai is of little relevance. His relationship with his partner was not relied upon before the First-tier Tribunal. There was no material error in the First-tier Tribunal's findings. They are compliant with the case law and on the proper application of the law the appeal should be dismissed.

Discussion

Ground 1

22.           As we have noted above, the appellant's position on whether he was pursuing ground 1 evolved in the course of the hearing. At the start of his submissions Mr. Gill KC accepted that he did not have permission to appeal to raise this ground directly, but he sought to rely on it as part of his submissions on Ground 2.

23.           In his submissions in reply to Ms. Cuhna, Mr. Gill KC sought to resurrect Ground 1 as an alternative stand-alone ground independent from Ground 2. However, he continued to frame his argument in respect of Ground 1 as being a part of Ground 2.

24.           Grounds 1 and 2 are entirely distinct, and Mr Gill KC's approach, of seeking to argue Ground 1 as a part of Ground 2, is not tenable. It was open to Mr Gill KC to pursue ground 1 as a separate ground, given what is said in EH, but he did not do so in his oral submissions.

25.           For completeness, we are not persuaded, in any event, that there is merit to Ground 1, for the same reasons that Judge Hirst gave when refusing permission to appeal on the papers. In summary we agree that the matters relied upon in the grounds of appeal under this head are in substance a disagreement with the First-tier Tribunal Judge's conclusions. Whilst the First-tier Tribunal Judge did not explicitly cite CI Nigeria v SSHD [2019] EWCA Civ 2027, they were not required to do so. The Judge considered the relevant factors in the determination at paragraphs 31 to 34 and they were unarguably entitled to consider the appellant's drug use and escalation in his drug related offending undermined his integration in the UK. The First-tier Judge considered the statements and letters of support relied upon by the appellant but was entitled to find that the evidence in those letters was at odds with the appellant's lengthy history of drug related offending. The judge's erroneous reference to the appellant 'brandishing' a bladed weapon was not arguably material to their assessment of article 8 in light of the appellant's conviction for possession of an offensive weapon, together with the other evidence before that tribunal including the Crown Court Judge's sentencing remarks. The weight to be attached to the evidence including medical evidence was a matter for the Judge and the reasons given for reducing its weight were unarguably open to them.

26.           We reject this ground and the arguments based on it, whether raised independently or under the head of ground 2.

Ground 3

27.           Ground 3 was not raised or pursued before us. For the avoidance of doubt, we agree with and adopt the reasons given for refusing permission to appeal on this ground given by Judge Hirst in her decision of 16 December 2024 at paragraph 8, that the First-tier Tribunal Judge was unarguably entitled to find that the appellant's criminality was not at an end for the reasons given at paragraph 43 of the determination. The First-tier Tribunal Judge's conclusion that there were not very compelling circumstances outweighing the public interest in deportation was one that was unarguably open to them on the evidence.

Ground 2

28.           Our starting point for the analysis of this ground is that the parties agreed that at paragraph 37 of the determination the First-tier Tribunal Judge set out the wrong test; whether there were very significant obstacles to the appellant's reintegration in the event of his return to Bangladesh. The question for us under section 12 of the Tribunals Courts and Enforcement Act 2007 is whether the decision involved the making of an error on a point of law, and, if it did, whether we should set aside the decision of the First-tier Tribunal.

29.           In approaching this question, it is superficially attractive to take both as the starting point and conclusion the fact that the First-tier Tribunal Judge referred to the appellant needing to show that he would suffer bleak hardships at paragraph 39 as showing that the application of the wrong test gave rise to an error of law. However, in our judgment, a more careful and nuanced analysis is required of the First-tier Tribunal's consideration of whether the appellant would face very significant obstacles in the event of his removal to Bangladesh. In our judgment, the First-tier Tribunal Judge analysed the evidence and set out factors clearly relevant to whether the appellant is an 'insider' applying the test in Kamara in particular in the determination at paragraphs 36-38.

30.           It is correct that the First-tier Judge did not explicitly refer to the test in Kamara. However, Mr. Gill KC accepted in his submissions that mere failure to explicitly refer to Kamara does not give rise to an error of law. This is plainly correct: see paragraph 51 of Yalcin v Secretary of State for the Home Department [2024] EWCA Civ 74.

31.           The language used by the First-tier Tribunal Judge in analysing this issue may not mirror Kamara exactly but in our judgment it is clear that the First-tier Tribunal Judge addressed all factors relevant to whether the appellant would be considered an insider. As the Court of Appeal's decision in Lowe and the Supreme Court's decision in HA (Iraq) [2022] UKSC 22 make clear, we should be slow to infer an error on the part of a specialist First-tier Tribunal judge who heard the evidence, cross-examination and submissions.

32.           In our judgment, the First-tier Tribunal Judge went through the statutory scheme required by section 117C(4)(c) and analysed it correctly. We consider that the reference to bleak (i.e. the wrong test) at paragraph 39 of the determination was akin to a slip rather than an error of approach on the part of the FTTJ such as to give rise to an error of law. Had the final sentence of paragraph 39 been omitted, there would, in our view, be no substance in this ground at all. In our view, on a fair reading of the decision, it is apparent that the judge had in mind, and in fact applied, the correct test, even though the wording in paragraph 39 suggests the opposite. We are therefore not persuaded that the judge erred.

33.           However, if we are wrong, and the reference to "bleak" amounts to an error, we do not consider the error to be material. This is because the findings of fact made by the judge, in particular at paragraphs 36-38, inextricably lead to the conclusion that the appellant is sufficiently an insider, in the sense explained in Kamara, that he would not face very significant obstacles integration into Bangladesh.

34.           It follows that we conclude that the First-tier Tribunal's decision did not involve the making of an error on a point of law. We dismiss this appeal.

Notice of Decision

 

The appeal is dismissed

 

 

D Sternberg

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

21 February 2025

 

 

NOTIFICATION OF APPEAL RIGHTS

 

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal's decision was sent:

 

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

 

3. Where the person making the application is in detention under the Immigration Acts , the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

 

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

 

5. A "working day" means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

 

6. The date when the decision is "sent' is that appearing on the covering letter or covering email