The value of Akinyemi v The Secretary of State for the Home Department  EWCA Civ 236 (04 April 2017) is the consideration by the Court of Appeal of an appeal by a 33year old man who had been born in the UK; had long missed out on an opportunity of acquiring British citizenship and was now subject to deportation proceedings having accrued a lengthy criminal record in the UK. Could the fact that he been entitled to acquire British citizenship over the past years but failed to avail himself of the appropriate avenues, be sufficient to enable him to successfully resist deportation? Could his presence in the UK be regarded as unlawful or precarious? Could the fact that the Appellant had only ever lived in the UK all his life be sufficient to resist deportation? Is the absence of connections with the country of return, a trump card? What is the effect of serious and persistent offending?
In Akinyemi, the Court of Appeal also provided yet another fresh decision on deportation, giving opportunity to review the relevant complex statutory provisions in particular Part 5A of the 2002 Act and paragraphs 398 to 339A of the Immigration Rules.
How the Appellant missed out on acquiring British nationality:
Following the Appellant’s conviction for drugs offences in 2013, on 13 February 2014 the Secretary of State made an order that he be deported to Nigeria. Appeal proceedings arose and the appeal ended up in the Court of Appeal.
The Appellant was born in the UK on 21 June 1983. The central feature of the case before the Court of Appeal was that he had lived in the UK since birth and had never been to Nigeria and had no substantial links with that country. By the time the Appellant was born, the legislation had changed and he did not acquire British nationality automatically as a result of his birth here; and he never acquired it since. He is a Nigerian national by virtue of his parents’ original nationality.
The Appellant’s father was granted indefinite leave to remain in October 1987 and became a British citizen in October 2004. The Appellant’s mother died when he was a teenager: the Court of Appeal considered it fair to assume that she at least had indefinite leave to remain. The Appellant’s elder brother was born in Nigeria but became naturalised in 2000. The other brother was born in the UK, and as a result of the legislation in force at that time was a British citizen from birth.
Although the Appellant was not a British citizen, the Court of Appeal observed that it was an important feature of his case that there was a substantial period during which he had an absolute entitlement to acquire British nationality. The relevant provisions are those of section 1 of the British Nationality Act 1981, which came into force on 1 January 1983. Sub-sections (3)-(4) at the material times read as follows:
“(3) A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) or (2) shall be entitled to be registered as a British citizen if, while he is a minor—
(a) his father or mother becomes a British citizen or becomes settled in the United Kingdom; and
(b) an application is made for his registration as a British citizen.
(4) A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) or (2) shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person’s life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90.”
The Court of Appeal observed:
Since the Appellant’s father acquired indefinite leave to remain and thus became settled in October 1987, the Appellant could have become a British citizen by an application made under sub-section (3) at any time between then and his eighteenth birthday in June 2001. Thereafter he retained the right to acquire British nationality on application under sub-section (4), provided only that he had not been out of the UK for longer than the maximum period during the first ten years of his life: the appellant had never left the UK.
The legal position changed with effect from 4 December 2006 by virtue of section 58 of the Immigration, Asylum and Nationality Act 2006, which provided that the Secretary of State should not grant an application for registration under section 1 (4) of the 1981 Act unless satisfied that the applicant was of good character. In view of the convictions which the Appellant had accrued by 2006, it seemed unlikely that he could have acquired citizenship at any time after that date.
There was therefore a nineteen-year window, between the ages of four and 23, when the Appellant had an absolute right to acquire British citizenship. For the first fourteen years the application would have fallen to be made by his parents on his behalf, and in the last five years by himself.
The issues in the appeal:
Section 117B(4) of the 2002 Act states that little weight should be given to a private life, or a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
As regards section 117B (4), it was observed that the Upper Tribunal Judge had stated that little weight is to be given to a private life that is established during unlawful residence. The Court of Appeal considered that this sentence was at the heart of the appeal before them. The Upper Tribunal Judge had also stated that she could not see how unlawful residence, albeit for all the Appellant’s life, could be seen as a factor which would trump lawful residence for most of one’s stay here. Again the Court of Appeal stated this sentence was central to the issues before them in that the Judge proceeded on the basis that the Appellant’s entire residence in the UK country was “unlawful”. The Upper Tribunal Judge was also observed to have referred to “the absence of any lawful leave”. The Upper Tribunal also did not find in the appellant’s favour despite the fact that he had only known life in the UK.
On behalf of the Appellant, in the Court of Appeal, it was argued that the Upper Tribunal Judge had materially misdirected herself by treating the Appellant’s presence in the UK as “unlawful” and thus concluding that little weight should be attached to the fact that he had been in the UK his whole life.
A further contention was that the finding that there were no very compelling reasons in the Appellant’s case such as to outweigh the public interest in his deportation was one which was not open to the Upper Tribunal Judge in law in all the circumstances of the Appellant’s case.
Part 5 of the 2002 Act and Paragraphs 398 to 399A of the Immigration Rules:
The consideration by a court or tribunal of whether a decision made under the immigration legislation is in breach of the rights of any person under Article 8 is subject to the provisions of Part 5A of the Nationality, Immigration and Asylum Act 2002, which was introduced by the Immigration Act 2014 with effect from 28 July 2014. Sections 117A to 117D in Part 5A of the 2002 Act set out the correct approach to considering ECHR Article 8 claims. Part 5A was inserted by section 19 of the Immigration Act 2014 which came into force on 28 July 2014.
section 117A sets out how the Article 8 provisions are to be applied
section 117B sets out Parliament’s view of the public interest in Article 8 claims made by any foreign nationals, including foreign criminals
section 117C sets out Parliament’s view of the public interest in Article 8 claims made by foreign criminals liable to deportation
section 117D sets out the interpretation of sections 117A to 117C
Section 117C reads:
“(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
(c) 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.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”
Having regard to the Immigration Rules, the deportation of foreign criminals is the subject of Part 13 of the Immigration Rules. Its core provisions – paragraphs 398-399A – closely track those of section 117C (3)-(6).
Paragraph 398 of the Immigration Rules sets out the criminality thresholds. An Article 8 claim from a foreign criminal who has not been sentenced to at least 4 years’ imprisonment will succeed if the requirements of an exception to deportation are met. The exceptions to deportation on the basis of family life are set out at paragraph 399 of the Immigration Rules, and the exception on the basis of private life is at paragraph 399A.
An Article 8 claim from a foreign criminal who has been sentenced to at least 4 years’ imprisonment will only succeed where there are very compelling circumstances over and above the circumstances described in the exceptions to deportation at paragraphs 399 and 399A
Paragraph 398 of the Immigration Rules provides:
“Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.”
The Appellant’s case fell within head (a) of paragraph 398 because he had previously in 2007 received a sentence of imprisonment of four years.
Correct construction of Section 117C(6):
The Court observed that there was some discussion as to the correct construction of section 117C (6). The Court stated that at first sight a possible reading of the phrase “over and above those described in Exceptions 1 and 2” is that the foreign criminal is obliged to show, first, that he fell within the terms of one or other (or possibly even both) of the exceptions, and then to demonstrate, additionally, “very compelling circumstances”. It was however submitted by those representing the Appellant that this was an over-literal approach and that the thrust of the provisions as a whole was that the very compelling circumstances which the criminal must show must be more compelling than those covered by the specified exceptions. It was put forward that Section 117A only requires the decision-taker to “have regard to” the considerations in sections 117B and 117C, so that even if the stricter construction of sub-section (6) were adopted the Secretary of State would not be compelled to act in breach of article 8 (contrary to section 33 of the 2007 Act) if that is what deportation would entail in any given case.
The Court agreed that the better approach was to adopt the more flexible construction advanced by those representing the Appellant.
Whether the Appellant’s presence in the UK was unlawful:
It was submitted on behalf of the Appellant that the Upper Tribunal Judge was wrong as a matter of law to characterise the Appellant’s presence in the UK from birth as “unlawful”. It was put forward that the central concepts in the statutory scheme of immigration are “leave to enter” and, having entered, “leave to remain”. The Appellant, having been born here, had never required leave to enter and did not require leave to remain. The basic power of so-called “administrative removal” in section 10 of the Immigration and Asylum Act 1999 (as amended by the 2014 Act), which is headed “Removal of persons unlawfully in the United Kingdom”, depends explicitly on such leave being required but not having been granted. It was argued that if the Appellant left the country he would require leave to enter if he wished to return. He would also be liable to deportation under section 3 (5) of the 1971 Act if his presence was not conducive to the public interest. But his default status was that he was irremovable. His presence could not sensibly be described as “unlawful”. He was in breach of no legal obligation by being in the UK.
The Court of Appeal agreed with these submissions. The meaning of the language of section 117B (4) of the 2002 Act is not to be found by following decisions on the effect of cognate, though not identical, language in other statutes. The question is whether the reference in this particular context to a person being in the UK “unlawfully” is to their presence being in breach of UK law or is merely to their not having a positive vested right of residence. In the Court’s view the former construction was correct for the following reasons:
As a matter of the ordinary use of language it seemed to the Court unnatural to describe a person’s presence in the UK as “unlawful” when there is no specific legal obligation of which they are in breach by being here and no legal right to remove them – and all the more so where they have, as the Appellant did from the ages of four to 23, an absolute right at any time to acquire British nationality simply by making the necessary application.
Further, it seemed to the Court that a construction which focuses on removability rather than a positive right to remain is more in keeping with the statutory context. Section 117B (4) is concerned with the establishment of a “private life” over a period of presence in the UK. The reason why it is reasonable to place little weight on private life established while a person’s presence in the country has been “unlawful” is that he or she has no legitimate expectation of their continuing presence in the country and may be removed at any time. It is similar, but a fortiori, to that underlying section 117B (5), relating to private life developed while a person’s immigration status is “precarious”. It was hard to see how that policy can apply to the situation of a person born in the UK to parents who were lawfully present and who in due course became settled, who is legally irremovable and who is entitled to acquire British nationality: such a person’s expectation that they will continue to live indefinitely in the UK is entirely legitimate.
The Court appreciated that the Appellant’s position changed in 2006, when his right to acquire British nationality was qualified by the introduction of the suitability requirement. The Court could however not see that that change had the consequence of rendering his presence in the UK unlawful, since even after it he remained irremovable (otherwise than by deportation). The Court considered however that the point was not decisive, because even if they were wrong about that, the fact remained that from age four to 23, the Appellants presence was not unlawful and section 117B (4) could not bite on the private life established in that period .
The Court of Appeal accepted that the Upper Tribunal Judge was wrong to direct herself in her determination that little weight should be attached to the fact that the Appellant had been in the UK his whole life and to rely also in the determination on his presence being unlawful.
The Judge’s misdirection went to the central issue in the case and one which required a peculiarly sensitive assessment. The facts were unusually stark because the Appellant had indeed lived in the UK since birth, with an entitlement for most of that period to acquire British citizenship, and had no significant social or cultural links with the country to which he was to be deported. In those circumstances the assessment of the weight to be given to the fact that the Appellant had never known any environment other than that of this country was of central importance; and it could not be safe to conclude that the Judge was unaffected by her direction that it should be given little weight because his presence had throughout been unlawful.
Section 117B(5) states that little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious. There was some discussion before the Court of Appeal about whether, even if section 117B (4) did not apply, section 117B (5) did – in other words, whether the Appellant’s immigration status was at all material times “precarious”. The Court of Appeal clarified that the answer to that question followed from what they had already said about sub-section (4). The Court stated that a person’s immigration status is precarious when they understand, or should in any event be taken to have understood, “that their time in the host country would be comparatively short or would be liable to termination”: see Rhuppiah v Secretary of State for the Home Department  EWCA Civ 803,  1 WLR 4203, per Sales LJ at para. 34. That was plainly not the Appellant’s position, at least up to 2006, though not necessarily even after then.
Whether there were very compelling reasons in the Appellant’s case such as to outweigh the public interest in his deportation:
It was argued on the Appellant’s behalf that the only possible conclusion in the circumstances of the Appellant’s case was that his deportation would be a breach of his Convention rights. The central point argument was that which had already featured in the argument – that is, that the Appellant had not only lived in the UK all his life but had done so in the (correct) understanding that he was, like the rest of his family, in practice settled here; with the related point that he enjoyed for most of that period an absolute entitlement to acquire British citizenship, and that the fact that he had not taken up that entitlement was, from the Secretary of State’s point of view, purely adventitious. It was pointed out on behalf of the Appellant, the clear recognition in the Strasbourg case-law that the length of time that a person has been in the host country is an important consideration in striking the proportionality balance.
The Court of Appeal acknowledged that there were powerful points put forward on behalf of the Appellant but was not persuaded that they are so powerful that this was a case where only one outcome was possible on the facts as found, even if the Judge had directed herself correctly about the application of section 117B (4). The presence in the country from a young age, and an absence of connections with the country of return, is not a trump card. The Appellant’s record of offending was serious and persistent. The fact that he had an explicit warning in 2011 of the risk of deportation if he continued to offend was a feature to which a tribunal would be entitled to give considerable weight. There had been no challenge to the Judge’s conclusion that no very serious obstacles had been shown to his integrating in Nigeria.
The Court stated that cases of this kind are highly fact-sensitive. It was not believed that the Court of Appeal which had not heard the primary evidence, was able to say with sufficient confidence how the proportionality balance should be struck.
The appeal was therefore allowed only on ground 1. The case was directed to be remitted to the Upper Tribunal for a re-hearing before a differently constituted tribunal which should consider the case de novo.
The appeal in Akinyemi has been remitted to the Upper Tribunal. It is hoped that their decision in this case is reported as the facts and issues raised could very much be of wider application.