Court of Appeal approves Chege on “persistent offender”, sets out when a foreign criminal is socially and culturally integrated in the UK

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The appeal in Binbuga (Turkey) v Secretary of State for the Home Department [2019] EWCA Civ 551 (04 April 2019) concerned the following:

 

 

  • whether TB was a “foreign criminal” as defined in Section 117D(2) of the Nationality, Immigration and Asylum Act 2002;

  • if so, whether Exception 1 in Section 117C(4) NIAA applies and

  • if not, whether the “very compelling circumstances” test is met

 

Summary Background

 

TB, a Turkish citizen born on 4 April 1990 had entered the UK with his father, mother and siblings on 28 September 1999, when he was 9 years old. His family’s application for asylum was refused but on 25 June 2004 they were all granted indefinite leave to remain.

 

Between 27 July 2006 and 14 March 2014, TB was convicted of several offences. Deportation proceedings were commenced by the Secretary of State.

 

The Secretary of State concluded that TB’s deportation was conducive to the public good on the basis that he was a persistent offender. It was accepted that TB had been resident in the UK for most of his life, however it was considered that given his criminality and the lack of evidence of positive contributions, TB had failed to demonstrate that he was socially and culturally integrated into the UK. The Secretary of State also took the view that there were no very significant obstacles to TB’s reintegration into Turkey. He had never resided in Turkey as an adult, but had spent his formative years there, retained familiarity with Turkish customs and language and had family remaining in Turkey.

 

Following appeals in both tiers of the Tribunal, the case came before the Court of Appeal, which sought to undertake a consideration of several issues.

 

 

 

Statutory provisions- who is a Foreign Criminal?

 

Part 5A of the 2002 Act applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under Article 8 ECHR.

 

In considering the public interest question the court or tribunal must have regard in all cases to the public interest considerations listed in s.117B, and, in cases concerning the deportation of foreign criminals, to the additional considerations set out in s.117C.

 

A foreign criminal for the purposes of Part 5A is defined in s.117D(2) as follows:

 

“(2) In this Part, “foreign criminal” means a person—

(a) who is not a British citizen,

(b) who has been convicted in the United Kingdom of an offence, and

(c) who—

(i) has been sentenced to a period of imprisonment of at least 12 months,

(ii) has been convicted of an offence that has caused serious harm, or

(iii) is a persistent offender.”

 

 

Additional considerations applicable to foreign criminals in Part 5 of the 2002 Act

 

The additional considerations to which regard must be had in cases involving foreign criminals are as follows:

 

“117C Article 8: additional considerations in cases involving foreign criminals

(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.”

 

 

Applicability of the Immigration Rules

 

The relevant Immigration Rules provided as follows:

 

“398. Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and

 

…………………

 

(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.

 

399A. This paragraph applies where paragraph 398(b) or (c) applies if—

 

(a) the person has been lawfully resident in the UK for most of his life; and

 

(b) he is socially and culturally integrated in the UK; and

 

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”

 

 

 

Meaning of a persistent offender– relevant caselaw

 

The Court of Appeal referred to guidance as to the meaning of a persistent offender provided in the Upper Tribunal decision in Chege v SSHD [2016] Imm AR 833, as endorsed in SC (Zimbabwe) v SSHD [2018] 1 WLR 4474.

 

It was noted that in SC (Zimbabwe) the Court at paragraph 26 specifically agreed with the following paragraphs from the Upper Tribunal’s decision in Chege which it said was a sufficient statement of the construction of the phrase for the purpose of the appeal before the Court:

 

“50. What, therefore, is the natural meaning of the phrase “persistent offender” in this specific statutory context? It can certainly be said, without unnecessarily straining the natural meaning of the word that an “offender” acquires that status by virtue of committing a crime, and having once offended he does not lose that status even if he never commits another crime. In other words, once an offender, always an offender. The fact that Parliament has deliberately legislated to remove the concept of spent convictions in this context also lends force to the view that “offender” means someone who has offended in the past however long ago that may have been.

 

51.However, Parliament did not use the phrase “repeat offender” or “serial offender”. It used the phrase “persistent offender”, and persistence, by its very nature, requires some continuation of the behaviour concerned, although it need not be continuous or even regular. There may be circumstances in which it would be inappropriate to describe someone with a past history of criminality as being a “persistent offender” even if there was a time when that description would have been an accurate one.

52.Take, for example, the case of an individual who in his youth had committed a series of offences between the ages of 14 and 17 which led to a string of minor convictions, but in adulthood had led a blameless existence for 20 years. Whilst it would be accurate to describe him as an offender, the natural response to the question whether he is now a persistent offender would be no. It would still be no if at the end of that long period of good behaviour he committed another minor criminal offence, even one involving proof of intention or recklessness. That is why, both logically and as a matter of the natural meaning of the language, Mr Malik’s proposition that “persistent offender” is a permanent status cannot be correct.

 

53.Put simply, a “persistent offender” is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or up to a certain time before it, or that the continuity of the offending cannot be broken. Whilst we do not accept Mr Malik’s primary submission that a “persistent offender” is a permanent status that can never be lost once it is acquired, we do accept his submission that an individual can be regarded as a “persistent offender” for the purpose of the Rules and the 2002 Act even though he may not have offended for some time. Someone can be fairly described as a person who keeps breaking the law even if he is not currently offending. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date. Each case will turn on its own facts.

 

54.Plainly, a persistent offender is not simply someone who offends more than once. There has to be repeat offending but that repetition, in and of itself, will not be enough to show persistence. There has to be a history of repeated criminal conduct carried out over a sufficiently long period to indicate that the person concerned is someone who keeps on re-offending. However, determining whether the offending is persistent is not just a mathematical exercise. How long a period and how many offences will be enough will depend very much on the facts of the particular case and the nature and circumstances of the offending. The criminal offences need not be the same, or even of the same character as each other. Persistence may be shown by the fact that a person keeps committing the same type of offence, but it may equally be shown by the fact that he has committed a wide variety of different offences over a period of time.”

 

The Court also said that it agreed “in substance” with the subsequent paragraphs from the decision in Chege. These included the following:

 

“57. In order to answer the question whether someone is a persistent offender, the decision-maker (be it the Tribunal or the Secretary of State) must consider the whole history of the individual from the commission of the first offence up to the date of the decision and ask themselves whether he can properly be described as someone who keeps on committing criminal offences. Factors to be taken into account will include the overall pattern of offending, the frequency of the offences, their nature, their number, the period or periods over which they are committed, and (where relevant) any reasons underlying the offending, such as an alcohol or drug dependency or association with other criminals. This is in line with the guidance given in the Immigration Directorate Instructions, Chapter 13, version 5.0 (dated 28 July 2014) to which Mr Malik referred, which states that a persistent offender is “a repeat offender who shows a pattern of offending over a period of time”. The guidance goes on to say “this can mean a series of offences committed in a fairly short timeframe, or which escalate in seriousness over time, or a long history of minor offences.”

 

58.If the person concerned has been out of trouble for a significant period or periods within the overall period under consideration, then the length of such periods and the reasons for his keeping out of trouble may be important considerations, though of course the decision maker is entitled to bear in mind that the mere fact that someone has not been convicted for some time does not necessarily signify that he has seen the error of his ways. It may simply mean that he has paused in his offending. It is the overall picture of his behaviour that matters.

 

59.If during those periods of apparent good behaviour the person concerned was serving the custodial part of a short sentence, or was too unwell to go out and commit the kinds of offences he is generally prone to commit, there may be an explanation for the hiatus in offending which is not inconsistent with his being properly regarded as a persistent offender. Likewise, it he had a very strong incentive not to commit further offences, such as being subject to a community order, or a suspended sentence, or he is on bail, or he has been served with a notice of deportation, the fact that he has committed no further offences during that period may be of little significance in deciding whether, looking at his history as a whole, he fits the description.

 

60.On the other hand, we agree with First-tier Tribunal Judge Whalan that an established period of rehabilitation may lead properly to the conclusion that an individual is no longer a persistent offender. Depending on the particular facts and circumstances, a former drug addict who has ceased shoplifting to feed his habit after a period in rehabilitation, and who has been out of trouble for a significant period of time thereafter, might not be capable of being termed a “persistent offender” because when his history is looked at in the round, it can no longer be said that he is someone who keeps on offending.”

 

 

Whether TB was a persistent offender

 

In the Court of Appeal’s judgment, the Upper Tribunal was entitled to conclude that the First Tier Tribunal Judge( FTJ) had made a material error of law in his approach to the issue of whether TB was a persistent offender. In particular:

 

 

  • It was apparent that the FTJ relied on the use of the present tense in the statute: “is” a persistent offender. This led him to focus unduly on the current position rather than the overall picture. As Chege and SC (Zimbabwe) make clear, a persistent offender is someone who “keeps on breaking the law”. An individual may be so regarded even though “he may not have offended for some time”. In Chege, for example, he was regarded as being a persistent offender, even though he had committed no further offences for two years following release from immigration detention.

  • The FTJ’s erroneous approach was borne out by the fact that he was prepared to regard TB as no longer a persistent offender at the time of the Secretary of State’s decision, which was only 7 months after he had been released from prison.

  • Whilst rehabilitation is a relevant consideration, it is to be noted that Chege at [60] refers to “an established period of rehabilitation” and keeping out of trouble “for a significant period of time” which “may” lead to the conclusion that the individual is no longer a persistent offender.

  • The FTJ was wrong to focus on TB’s lack of offending from October 2013. TB was in prison until February 2015 and so any absence in offending in the intervening period could not be said to lead to the conclusion that TB was no longer a persistent offender.

  • Once TB left prison he would have been on licence for a period of months and throughout was under the threat of deportation. As pointed out in Chege at [59], whilst there is a strong incentive not to commit further offences lack of offending may be of little significance “in deciding whether, looking at his history as a whole, he fits the description”. Again, this was not a factor taken into account by the FTJ.

  • In all the circumstances the Upper Tribunal was entitled to conclude that the FTJ had made a material error of law and to remake that decision. The Upper Tribunal’s assessment that TB was a persistent offender involved no error of law or perversity.

  • TB was accordingly a foreign criminal as a persistent offender under Section 117D(2)(c)(iii) of the 2002 Act.

 

 

Whether TB was “socially and culturally integrated” in the UK under Exception 1 in Section 117C(4)

 

In the Court’s judgment the Upper Tribunal was correct to conclude that the First Tier Tribunal Judge( FTJ) erred in law in regarding TB’s association with pro-criminal peers as part of a gang as a “telling” example of his social and cultural integration for the following reasons:

 

 

  • Membership of a pro-criminal gang tells against rather than for social integration. In this context, social integration refers to the extent to which a foreign criminal has become incorporated within the lawful social structure of the UK. This includes various incidents of society such as clubs, societies, workplaces or places of study, but not association with pro-criminal peers.

  • Similarly, cultural integration refers to the acceptance and assumption by the foreign criminal of the culture of the UK, its core values, ideas, customs and social behaviour. This includes acceptance of the principle of the rule of law. Membership of a pro-criminal gang shows a lack of such acceptance. It demonstrates disdain for the rule of law and indeed undermines it.

  • Social and cultural integration in the UK connotes integration as a law-abiding citizen. That is why it is recognised that breaking the law may involve discontinuity in integration.

  • Being part of a pro-criminal gang similarly shows “blatant disregard for fellow citizens” and is “manifestly anti-social”.

  • The FTJ erred in law in treating TB’s membership of a gang as a factor pointing towards social and cultural integration.

  • The Upper Tribunal was entitled to conclude that FTJ had made a material error of law and to remake that decision. The Upper Tribunal’s assessment that TB was not socially and culturally integrated involved no error of law or perversity.

  • It followed that TB could not rely on Exception 1 as he did not fall within Section 117C(4)(b).

 

Inappropriate to refer to the individual being a “home grown” criminal when assessing social and cultural integration

 

 

It was noted that the FTJ had found as follows : “….where a person has spent a good deal or most of their life in the UK since childhood they are, in reality, home grown criminals and their long residence as a child can outweigh even the most serious kinds of offences including causing grievous bodily harm and dealing in class A drugs”.

 

 

The Court of Appeal concluded that:

 

 

  • That the description “home grown” criminal or offender cannot withstand analysis. It is an unhelpful description and is liable to mislead.

  • Part 5A NIAA is intended to provide for a structured approach to Article 8 so as to produce a final result which is compatible with Article 8 – see, for example, Rhuppiah v SSHD [2018] 1 WLR 5536 at [36].

  • When assessing Exception 1, the structure set out in s117C(4) should accordingly be followed and the questions there identified addressed, namely: (1) The length of time in the UK relative to the foreign criminal’s life: (a); (2) The extent of social and cultural integration in the UK: (b); (3) The ease of reintegration in the other country: (c).

  • The length of time that the foreign criminal has spent in the UK is primarily relevant to question (1). S.117C(4)(a) requires consideration not only of the number of years, but also those years relative to the age of the foreign criminal: “most of C’s life”. Whilst these factors may also be relevant to integration under question (2), the focus there is on the extent of social and cultural integration and the fact of such integration rather than what may be the underlying reasons for it.

  • It is not appropriate to refer to or rely upon the individual being a “home grown” criminal or offender.

  • The Upper Tribunal was correct to conclude that the FTJ had relied on the fact that TB was to be regarded as being a “home grown criminal” in reaching its conclusion on reintegration in Turkey. That was an error of law that entitled the Upper Tribunal to remake the decision.

  • It followed that a further reason why TB could not rely on Exception 1 was that he did not fall within Section117C(4)(c).

 

 

Whether there were very compelling circumstances so as to render TB’s deportation disproportionate

 

 

The Court of Appeal concluded as follows:

 

 

    • To establish “very compelling circumstances” means showing that there are very compelling circumstances “over and above” those described in Exceptions 1 and 2 which outweigh the public interest in deportation. This is the test set out in Section 117C(6): “… the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.”

    • Although Section 117C(6) applies to foreign criminals sentenced to imprisonment of at least 4 years, that wording has been held by this Court to be equally applicable to those foreign criminals falling within s.117C(3) – see NA (Pakistan) v SSHD [2017] 1 WLR 207 at [24]-[27]. In the same case Jackson LJ gave guidance as to what the test requires in relation to a medium offender, such as TB. As stated in NA at [32]-[33]: “32. …in the case of a medium offender, if all he could advance in support of his Article 8 claim was a “near miss” case in which he fell short of bringing himself within either Exception 1 or Exception 2, it would not be possible to say that he had shown that there were “very compelling circumstances, over and above those described in Exceptions 1 and 2”. He would need to have a far stronger case than that by reference to the interests protected by Article 8 to bring himself within that fall back protection. But again, in principle there may be cases in which such an offender can say that features of his case of a kind described in Exceptions 1 and 2 have such great force for Article 8 purposes that they do constitute such very compelling circumstances, whether taken by themselves or in conjunction with other factors relevant to Article 8 but not falling within the factors described in Exceptions 1 and 2. The decision maker, be it the Secretary of State or a tribunal, must look at all the matters relied upon collectively, in order to determine whether they are sufficiently compelling to outweigh the high public interest in deportation.” And “33. Although there is no ‘exceptionality’ requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient.”

    • Although the FTJ referred to paragraph 398 of the Immigration Rules in his concluding paragraph, he did not identify or set out the requirement to show very compelling circumstances “over and above” those set out in Exceptions 1 and 2. Further, the limited circumstances he identified to found his conclusion on very compelling circumstances suggested that he did not focus on this requirement.

    • It was observed that the First Tier Tribunal judge had found that TB had been rehabilitated and was a low risk of future offending. The Court of Appeal stated that rehabilitation involves no more than returning an individual to the place society expects him to be.

    • As the FTJ’s findings on social and cultural integration and reintegration in Turkey could not stand for reasons already given, that simply left the commonplace fact that TB had spent most of his life in the UK.

    • The FTJ’s findings on the integration issues did not involve features which have any particular or great force for Article 8 purposes.

    • In all the circumstances, the Court of Appeal considered that the Upper Tribunal was correct to conclude that the FTJ’s decision involved an error of law and that the factors he identified could not support the conclusion that there were very compelling circumstances “over and above” those set out in Exception 1.

    • The Court of Appeal dismissed TB’s appeal concluding that the Upper Tribunal was entitled to remake the decision of the FTJ and to reach the determination that TB was a “foreign criminal” as defined in s.117D(2); (ii) Exception 1 in Section 117C(4) NIAA did not apply and (iii) the “very compelling circumstances” test was not met.

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