The newly notified case of Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813, shows  that sometimes the Secretary of State does not always get  what she wants: ie  churning out of permission applications in deportation appeal  cases with the sole purpose of  convincing  the Upper Tribunal or Court of Appeal  to overturn an allowed deportation appeal.

 

The Court of Appeal in Kamara made it clear that contrary to the Secretary of State’s  submissions, the case in truth  did not raise important points of principle, however   in a short and to the point judgement has made  important  clarifications  in relation to  the phrase, “there would be very significant obstacles to his integration into the country to which it is proposed he is deported”, which appears in Paragraph 399A of the Immigration Rules and Section 117C(4) of the  2002 Act.

 

The Relevant Law:

 

Paragraphs 399B and 399C of the Immigration Rules  set out the provisions for granting leave to remain where an Article 8 claim succeeds. Sections 117A to 117D in Part 5A of the Nationality, Immigration and Asylum Act 2002 set out the correct approach to considering ECHR Article 8 claims.

 

What was in issue in Kamara is the test in paragraph 399A  which corresponds  to section 117C(4) of the 2002 Act.

 

Paragraph 399A of the Immigration Rules applies where a person has been lawfully resident in the UK for most of his life; and he is socially and culturally integrated in the UK and there would be very significant obstacles to his integration into the country to which it is proposed he is deported.  Section 117C (4), Exception 1 also applies where  a person  has been lawfully resident in the United Kingdom for most of his  life; he  is socially and culturally integrated in the United Kingdom  and there would be very significant obstacles to  his integration into the country to which he  is proposed to be deported.

 

The Facts:

 

In short, the deportation appeal concerned a Sierra Leonean man who had been  brought up in the UK  having  come here in 1993 as a young child, aged 6.

 

The Appellant became subject to deportation proceedings following  a conviction of 10 October 2011 when he was sentenced to imprisonment for 3 years and 6 months for possession of class A drugs with intent to supply.

 

The Issue:

 

On appeal to the Upper Tribunal (UT),   the critical issue which the Tribunal had to determine under section 117C was whether Exception 1 applied  in  the Appellant’s case , the test under paragraph 399A being the same.   The principal factual issue in dispute at the hearing was whether  the Appellant  had maintained links with his natural mother in Sierra Leone. The UT found, taking the evidence in the round,  that the Appellant did not have  any contact with his natural mother in Sierra Leone and had no subsisting familial ties to that country, having lost all contact with the country a long time ago. The Upper Tribunal also found that the Appellant  had fully integrated into society in the UK. The UT found that, although a foreign criminal, the Appellant  fell within Exception 1 in section 117C(4) and within paragraph 399A of the Immigration Rules. Weighing this along with the other matters identified in section 117B and section 117C(1) and (2), the Tribunal held that his deportation to Sierra Leone would be disproportionate and would be in violation of his rights under Article 8. It therefore allowed his appeal against deportation

 

Aggrieved, the Secretary of State appealed to the Court of Appeal.  In that Court, the important question was whether there would be very significant obstacles to the Appellant’s integration into Sierra Leone, if deported there since the  Upper Tribunal found that there would be.

 

Court of Appeal ‘s Considerations and Conclusions:

 

• In the Court ‘s 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

• As regards the Secretary of State’s submission that the conclusion the UT reached regarding Exception 1 and paragraph 399A involved legal error, because the Tribunal failed to have regard to the fact that the Appellant is a young man in good health and capable of work, in the Court’s view, the Tribunal’s decision was a careful and well-reasoned judgment. It was a judgement based on proper self-directions of law and leading to a conclusion which was clearly within the lawful parameters of legitimate evaluative judgment for the Tribunal on the facts of the particular case.

• The Court of Appeal clarified that 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 was 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.

• The Court did not accept the submission that the UT in this case erred by failing to refer explicitly in its reasons to the facts that the Appellant is a young man in good health and capable of working as these were all matters of which the Tribunal was plainly aware. Further, the representative for the Secretary of State at the hearing before the UT did not base any distinct submission in relation to Exception 1 and paragraph 399A on these particular facts about the Appellant. The Tribunal was aware that the Appellant was a young man in good health and capable of working and obviously took those points into account as the background for its consideration of the case, however, it regarded them as insufficient to cancel out the reasons it gave for finding that, as it set out there, there would be very significant obstacles to his integration into Sierra Leone.

 

Conclusion:

 

Highly likely to be ignored of course, but a useful reminder to the Secretary  of State having regard to the  case of Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC):

 

“Deportation appeals generally

18.The Upper Tribunal has the impression that the Secretary of State, as a matter of routine, applies for permission to appeal in every deportation appeal in which the appellant succeeds before the FtT. Furthermore, the grounds of appeal are frequently formulated in bland and formulaic terms. Thirdly, the grounds of appeal rarely, if ever, engage with the governing principles which we have rehearsed above.  We would suggest that these observations be carefully considered by those who compile applications for permission to appeal and the Judges who decide them.

19.If there is indeed a practice of this kind it must be disapproved. To slavishly apply for permission to appeal to the Upper Tribunal in every deportation appeal resolved in favour of the appellant, if this be the practice, is not a proper or legitimate invocation of this Tribunal’s jurisdiction.  Decisions on whether to apply for permission to appeal should be the product of conscientious and considered evaluation of the first instance judicial decision in every case.  This, we consider, is what was contemplated by the legislature in making provision for this mechanism.  Inundation of the Upper Tribunal with permission to appeal applications in every case belonging to a given category cannot be considered harmonious with the Parliamentary intention. Moreover, it is unfair to other tribunal users and undermines the important values of legal certainty and finality, which are two of the cornerstones of our legal system”.