Monthly Archives: January 2021

Court of Appeal’s unrelenting and stinging criticism of the Upper Tribunal: foreign criminal HAD established very significant obstacles to reintegration

Posted on by Standard Reply

“It seems to me that the UT judge strayed from his task and in doing so failed to take account of the fact that the FTT judge had had the benefit of hearing both the Appellant and his mother give evidence and had reached a broad evaluation decision. Instead of determining whether the FTT judge’s decision was irrational, the UT judge embarked upon making the decision himself, took account of matters which had not featured before the FTT and allowed himself to speculate about the Appellant”,  so concluded the Court of Appeal in  Lowe v The Secretary of State for the Home Department [2021] EWCA Civ 62 (25 January 2021), when considering the appeal of a Jamaican national who was born in 1999 and had come to the UK when he was 3years of age.

The Upper Tribunal irked the Court of Appeal by impermissibly setting aside a First Tier Tribunal Judge’s decision which found that the Appellant fell within the “private life exception to deportation”  set out in paragraph  399A of the Immigration Rules, such that he should not be deported to Jamaica.

What gave rise to deportation proceedings?

The Appellant, who had held indefinite leave to remain in the UK,  became subject to a deportation order because of a criminal conviction.  On 29 September 2017, he pleaded guilty to possession of a controlled drug of Class A (crack cocaine), with intent to supply, and to possession of a bladed article (a knife) in a public place. He was sentenced to a term of imprisonment of 2 years and 4 months for the drugs offence, with no separate penalty being imposed for possession of the knife.

What the Appellant had to show to resist deportation

The relevant provisions of the Immigration Rules and of primary legislation considered in the determination of claims by foreign criminals that their deportation would be contrary to Article 8 of the ECHR, are paragraphs 398 and 399A of the Immigration Rules and section 117C of the Nationality, Immigration and Asylum Act 2002.

In order to successfully resist deportation on the facts of his case by reference to the provisions, the Appellant had to show that:

  1. he had been lawfully resident in the UK for most of his life, and
  2. he was socially and culturally integrated in the UK, and
  3. there would be very significant obstacles to the foreign criminal’s integration into the country to which he is proposed to be deported

During the course of the appeal the Secretary of State accepted that (a) and (b)  was satisfied in the Appellant’s case but not (c).

As identified by the Court of Appeal {11}: “The battleground for that appeal was the Appellant’s contest to the points raised in the Respondent’s decision letter as to whether there were very significant obstacles to integration”.

The basis upon which the First Tier Tribunal Judge allowed the Appellant’s appeal

The First Tier Tribunal ( the FTT)  allowed the Appellant’s appeal from the decision of 1 August 2018 of the Secretary of State refusing his human rights claim, raised in resistance to a deportation order made against him on 30 October 2017.

It had been stated by the Secretary of State that the Appellant failed to satisfy the requirement that there should be “very significant obstacles” to integration because the Appellant’s father and extended family were still in Jamaica and available to support him.

The FTT found and concluded as follows in his decision, amongst other matters:

  • the Appellant had lived in the UK since the age of three.
  • the Appellant’s father resided in the UK and had done since in or around 1997/98.
  • the Appellant’s father left Jamaica approximately 20 years ago and had formed family units within the UK.
  • the Appellant’s mother had been absent from Jamaica for 16 years and left family and other connections she had within Jamaica due to abuse; accordingly, she was unlikely to have maintained contact; the Appellant’s mother and siblings had relocated to America.
  • on the evidence the FTT Judge found that the Appellant did not have family or other connections in Jamaica.
  • the Appellant met the Exception 1 (section 1117C(4) of the [Nationality, Immigration and Asylum] Act 2002 and reflected in Paragraph 399A of the Immigration Rules).
  • the Secretary of State was noted to have accepted that the Appellant had been lawfully resident within the UK the majority of his life and that he was socially and culturally integrated into the UK withstanding his offending.
  • It was accepted by the FTT Judge that the Appellant spoke English which is one of the official languages of Jamaica. Also accepted was that  the Appellant was a young healthy man of working age who is educated.
  • However, the FTT Judge concluded that Appellant had grown up in, been educated in and spent his whole adult life to date in the UK. It was that length of time in the UK; that lack of any family or support in Jamaica; the Appellant never having lived an independent life away from either of his parents or state institutions and a lack of financial support which would allow the Appellant to seek basic necessities such as accommodation which presented significant obstacles to his integration into Jamaica.
  • The FTT Judge accepted that there was a significant public interest in the deportation of foreign criminals, however, concluded that for the reasons he had given, Exception 1 to deportation was met and the public interest did not require the Appellant’s deportation. The Secretary of State’s decision to deport the Appellant was a disproportionate interference when weighed against his family and private life in the UK.

Why the Upper Tribunal set aside the First Tier Tribunal’s decision

On 10 April 2019, UT Judge Perkins in the  Upper Tribunal allowed the appeal of the Secretary of State against the FTT decision and sought to reason as follows:

  • The UT found that the “very significant obstacles” exception was only met in “strong circumstances” and that those circumstances were not “identified in the evidence” in the present case
  • The Appellant had not produced any evidence that showed he had made any real attempt to sort out how he might live in Jamaica. The UT had been told nothing about employment difficulties or opportunities or how the Appellant might or might not be able to obtain accommodation. The evidence was silent about these findings.
  • Given that the Appellant had sufficient wit (albeit of a thoroughly discreditable kind) to be part of a drug ring enterprise, the UT could not accept that he could be regarded a helpless babe.
  • Neither could the UT accept in the absence of clear evidence, that a person who had been locked up for whatever is necessary in a sentence of two years and four months, had not learned some street wisdom of a kind that would assist him.
  • The UT could see many things that would be difficult for him in Jamaica, or which could be expected to be difficult but could not see anything that  would describe properly as a “very significant obstacle”.

Court of Appeal’s conclusions that the First Tier Tribunal Judge’s decision was open to him

  • The FTT had decided the case on the basis of the case made by the Secretary of State, in the light of the evidence presented by the Appellant in support of his claim, in the decision letter and in argument. Having rejected that case, on the evidence, it was right for the FTT to allow the appeal.
  • What mattered was whether the FTT Judge was entitled to find, on the evidence thathe had seen and heard, and which the UT had not, and on the case made against him, that the Appellant, a young man with his characteristics and background, would face very significant obstacles to integration in Jamaica.
  • The Secretary of State had clearly been working under a significant and serious misapprehension, in the context of the case, in assuming that the Appellant had a father and extended family in Jamaica. The Secretary of State was wrong about that and the objection to the Appellant’s human rights claim on that basis had been rejected by the FTT.
  • As Kamara v Secretary of State for the Home Department [2016] 4 WLR 152 {14} shows, decisions of the present character made by the fact finding tribunal are “broad evaluative decisions”.
  • In Fage UK Ltd. v Chobani UK Ltd.[2014] EWCA Civ 5 at [114] – [115], Lewison LJ explained the caution to be exercised by appellate courts in interfering with evaluative decisions of first instance judges.
  • In this case, the FTT had determined the issues that were before it, being those which were regarded as being central to the question of whether the Appellant had demonstrated the relevant “very significant obstacles”. It was not necessary for the FTT to deal with a case that was not being made by the Secretary of State. As per Fage UK Ltd. v Chobani UK Ltd.[2014] EWCA Civ 5 the appeal to the FTT was “the first and last night of the show”, not a “dress rehearsal”.
  • The Court of Appeal in Lowe, observed that it is to be recalled that judgments at first instance are necessarily an incomplete impression made upon the judge by the primary evidence. The FTT judge reached the conclusion that he did on the issues raised and he expressed himself succinctly on them.
  • The Court of Appeal considered that it was quite open to the FTT judge to find that there were the necessary very significant obstacles based on the impression made upon him as to the effect of the “exile” of thisyoung man, with all his characteristics, attributes, qualities and defects that were disclosed by the evidence. Not every healthy young man, in a case such as this, would make the same impression. However, this was a 19 year old with a conviction, when he appeared before the FTT. He had lived for all but the first three years of his life in the UK and had no connection to Jamaica whatsoever other than a residual nationality. The  FTT Judge found that he had a specific dependency on his parents.
  • The Court of Appeal concluded that the  FTT Judge was entitled to form his own impression of the obstacles the Appellant would face on being dumped in Jamaica at the end of the prison term. He was not an adult foreign criminal, with a significant foundation of knowledge of the country of his birth from an earlier time in life, and who was being returned to a country with which he had some acquaintance. It was not surprising to that a judge (if not all judges) would find, as the FTT Judge did, that there were very significant obstacles to integration. Others might have made a different decision, but this was very much a case on its own facts to be assessed on the evidence.

Court of Appeal’s stinging criticism of the Upper Tribunal’s approach

In relation to the Upper Tribunal’s approach in setting aside the FTT Judge’s decision, the Court of Appeal concluded :

  • The UT was wrong to hold that the decision of the FTT was irrational.
  • The UT was wrong in substituting its own assessment of whether there were “very significant obstacles” to the Appellant’s integration into Jamaica after deportation for that of the FTT.
  • The UT correctly determined that this was a case of exile rather than deportation: in spite of the Appellant being a national of Jamaica, he had no past experience of any meaningful kind.
  • The UT re-assessed the case for itself and raised arguments against the Appellant which did not appear to have played any part at all in the Secretary of State’s original decision or in the Secretary of State ‘s case before the FTT.
  • It had not been suggested by the Secretary of State in the decision letter, or before the FTT, that the Appellant should have been making his own enquiries or adducing evidence before the FTT about accommodation and/or employment in Jamaica in order to satisfy the statutory burden upon him.
  • It was not for the UT to assess the Appellant’s “wit” in the light of his “part in a drug ring enterprise” or to speculate whether he could be regarded as a “helpless babe” that “had not learned some street wisdom of a kind that would assist him” from his period in custody.
  • The UT went outside its function in remaking the decision on the facts, on the basis of the written materials alone and without sufficient reference to the issues that were raised before the FTT and whether the FTT had been entitled to find as it did on those issues.
  • The UT impermissibly substituted own assessment of the case, without having heard the evidence and without the resultant important opportunity to assess the Appellant personally in the face of the statutory test.
  • The UT also raised issues against the Appellant that had formed no part of the case being made against him by the Secretary of State  either in the original decision, against which the appeal to the FTT was brought, or before the FTT itself.
  • The UT judge went on to make the decision afresh and to take into account matters which had not featured before the FTT at all.
  • The UT judge allowed himself to speculate about the Appellant and to bolster that impermissible speculation by reliance upon a perceived lack of evidence to the contrary. It was that impermissible speculation which led, in part, to his decision.

The Court of Appeal’s decision

The Court of Appeal allowed the Appellant’s appeal.

The decision of the Upper Tribunal dated 10 April 2019 was set aside and the decision of the First Tier Tribunal dated 17 December 2018 was restored.

Court of Appeal rejects endeavour to extend categories of Applicants able to rely on the Destitution Domestic Violence Concession

Posted on by Standard Reply

The appeal in FA (Sudan), R (On the Application Of) v Secretary of State for the Home Department [2021] EWCA Civ 59 (22 January 2021) represents an ambitious endeavour to widen the categories of applicants able to rely upon the Destitution Domestic Violence Concession (“the DDVC Concession”).

The Appellant in FA(Sudan) challenged a decision by the Secretary of State to the effect that she did not qualify for leave to remain in the UK outside the Immigration Rules under the concessionary policy.

Before the Court of Appeal, the Appellant sought to challenge the lawfulness of the policy in the DDVC.

Brief background

The Appellant, FA, a Sudanese married a British Citizen on 28 October 2011 and gave birth to their first child in Sudan on 4 August 2012. The Appellant travelled to the Netherlands from Sudan on 12 December 2014.

FA’s husband visited from the UK for short periods monthly. During those visits he spent time with FA. FA’s husband was not working or studying in the Netherlands while FA lived there. FA was not working but was being paid around €100 to €250 per month by her husband and he paid her rent. She had no other means of funding.

FA later entered the UK with her husband, using a Dutch residence card, on 13 August 2015. FA  had obtained the Dutch residence card from a government building and  her husband assisted her in obtaining the residence card, attending interviews as her interpreter and attending to paperwork.

FA gave birth to their second child on 21 September 2015.

FA resided with her husband in Birmingham until January 2016, when she left the matrimonial home.

The nature of the DDVC Concession

The relevant provisions of the DDVC and Immigration Rules are set out in detail between paragraphs 16 and 18 of FA(Sudan).

In summary the following applies:

  • The DDV Concession is a policy operated by the Home Office outside of the Immigration Rules to allow eligible applicants, who intend to make an application for settlement under the domestic violence rules, to be granted leave outside the Rules and permitting them to access public funds and vital services.
  • This gives the applicant access to temporary accommodation such as a refuge in order to leave her or his abusive partner and to submit a settlement application under the domestic violence rules. A successful applicant for leave outside the Rules under the DDV Concession does not have to meet the habitual residence test she or he would otherwise have to meet with other types of leave under criteria set by the Department of Work and Pensions.
  • If a successful applicant for leave outside the Rules under the DDV Concession fails to submit her or his application for settlement under the domestic violence rules within three months of the grant of leave to remain outside the Rules under the DDV Concession, then the applicant becomes an overstayer and becomes subject to removal from the United Kingdom. The DDV Concession stipulates that within 28 days of an applicant’s leave outside the Rules lapsing the applicant’s case should be referred for enforcement action.

In order to be eligible for the DDV Concession, the applicant must satisfy all of the following conditions:

  1. the applicant must previously have been granted leave to enter or remain as the spouse, civil partner or unmarried or same-sex partner of a British citizen, a settled person or a member of HM Forces who has served for at least four years;
  2. the applicant’s relationship with her (or his) spouse, civil partner, unmarried or same-sex partner must have broken down as a result of domestic violence;
  3. the applicant must claim to be destitute and not to have access to funds; and
  4. the applicant must intend to apply for indefinite leave to remain as a victim of domestic violence under one of the following provisions of the Immigration Rules: paragraph 289A; paragraph 40 of Appendix Armed Forces; or section DVILR of Appendix FM (Family Members).

Moore-Bick LJ in R (T) v Secretary of State for the Home Department [2016] EWCA Civ 801, stated at paragraph 11: “In my view when considering an application under the DDV Concession for temporary relief the Secretary of State must ask herself whether, as things stand at the date of the application, the applicant would on the face of it be able to meet the requirements of section DVILR. If it is clear that she would not, the Secretary of State is entitled to refuse relief. That does not involve construing section E-DVILR by reference to the concession; it simply involves asking oneself whether, if the applicant were to make an application for indefinite leave to remain, she could satisfy the terms of the section. In the present case it was clear that she could not do so and for that reason alone she cannot succeed in this case.”

Why FA was ineligible for the DDV Concession on its terms

FA could not show the following as required by the DDV Concession:

  • that she had previously been granted leave to enter or remain as the spouse, civil partner or unmarried or same-sex partner of a British citizen, a settled person or a member of HM Forces who has served for at least four years.
  • that she intended to apply for indefinite leave to remain as a victim of domestic violence under one of the following provisions of the Immigration Rules: paragraph 289A; paragraph 40 of Appendix Armed Forces; or section DVILR of Appendix FM (Family Members).

She did not satisfy the pre-conditions to applying under any of the mentioned routes.

Refusal of application by the Secretary of State

On 4 August 2016, FA applied for leave outside the Immigration Rules under the DDVC.

On 9 August 2016, that application was refused on the grounds that FA was not eligible for leave to remain under the DDVC, as she did not meet the criteria set out in the DDVC as did not enter the United Kingdom or was not given leave to remain in the United Kingdom as a spouse, civil partner, unmarried or same sex partner of a British citizen or someone present and settled in the UK.

Judicial review proceedings

On 3 November 2016, FA applied for permission to bring a claim for judicial review of that decision.

The substantive claim for judicial review was heard by Murray J on 7 November 2018 and dismissed in the judgment given on 14 December 2018.

Murray J held as follows:

  • FA did not enter the UK as the spouse of a British citizen exercising EEA rights.
  • regulation 9 of the Immigration (European Economic Area) Regulations 2006 only applies if the returning British citizen was residing in the EEA state as a worker or self-employed person; FA’s husband was not.
  • the fact that FA entered the UK using a valid Dutch residence card which was checked by an immigration officer as she boarded a ferry was not sufficient for the purposes of regulation 9.
  • FA had not been unlawfully discriminated against in contravention of Article 14 of the European Convention on Human Rights (“ECHR”), read with Article 8. In that context, he said that FA’s case was distinguishable on its facts from the decision of the Inner House of the Court of Session in A v Secretary of State for the Home Department[2016] CSIH 38; [2016] SC 776.
  • there was no violation of Article 24 of the EU Charter of Fundamental Rights, whether read with Article 18 of Directive 2012/29/EU of the Parliament and Council establishing minimum standards on the rights, support and protection of victims of crime (“the Directive”) or alone.
  • section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) was not relevant to this case.

FA appealed to the Court of Appeal.

Considerations and conclusions by the Court of Appeal

The Court of Appeal took into account the grounds of appeal raised and decided as follows:

Whether there was a breach of Article 14 ECHR( unlawful discrimination) and Article 8 of the ECHR:

  • It was argued that the Judge erred in law by not holding that FA had been unlawfully discriminated against in contravention of Article 14 ECHR, read with Article 8.
  • The Judge failed to consider the discriminatory impact of the DDVC on three particular groups of victims of domestic violence, by reference to gender, motherhood and immigration status
  • Article 14 ECHR, the equality provision, provides: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
  • On behalf of the Appellant it was contended that the relevant comparison was between victims of domestic violence who have been granted a spousal visa under the Immigration Rules (and granted assistance under the DDVC) and those who have not. It was submitted that the distinction was one of form, not substance. The situations are comparable in that they are partners who have suffered domestic violence during their marriage and stay in the UK and require assistance from the state. It was argued that there was no objective and reasonable justification for the difference in treatment.
  • The Court accepted that the Concession does distinguish directly between those who have a visa as the spouse or partner of a person who is, for example, a British citizen and those who do not. The Court however stated that it did not however, differentiate between men and women, so there was no direct discrimination on grounds of sex. Nor was there direct discrimination on grounds of motherhood, since the Concession applies to fathers as well as mothers; and applies whether or not an applicant has children.
  • The onus to prove as a matter of fact that an apparently neutral policy has a disproportionate impact on a protected group, and therefore constitutes indirect discrimination, lies on a claimant. In the Court’s view, the evidence on this issue was unsatisfactory. What would be required in a case like the present was more specific evidence, to show that the distinction drawn on its face by the Concession has a disproportionate impact on a protected group.
  • It may well be that more women are likely to fail under the Concession than men because more women are the victims of domestic violence than men. But, it will probably be the case that the beneficiaries of the Concession are also predominantly women. Both consequences would seem to follow from the unfortunate reality that most victims of domestic violence are women. In principle, before a complaint of indirect discrimination could get off the ground, it would have to be established on evidence that the beneficiaries of a policy are more likely to be men, whereas those who are disadvantaged by it are more likely to be women.
  • The Court stated, without deciding the point, it was prepared to assume for the purposes of the argument that there was relevant indirect discrimination. The critical question, was whether any discrimination was objectively justified. In the Court’s view, it was.
  • The fundamental starting point was the rationale for the policy in the Concession. It was that a person whose application for settlement in the UK is dependent on her spouse or partner should not feel compelled to stay in an abusive relationship for that reason. Otherwise there is a danger that the immigration system itself will contribute to an injustice, because the victim of domestic violence may be exploited by her abuser precisely because her ability to apply for settlement will be jeopardised if she is no longer living with the abusive partner.
  • Once it is recognised that that is the underlying rationale of the Concession, there is an objective justification for the distinction drawn based on immigration status. If that distinction were not made, the rationale for the policy would simply not be achieved. For the same reason, any indirect discrimination on grounds of sex or motherhood is also objectively justified.
  • It is important to bear in mind that the Concession is limited in its scope. It is not a general policy dealing with all aspects of domestic violence in the UK or even all aspects of domestic violence against people who have no right to remain in the UK. It is a limited concession, for a period of three months, to enable a person to make an application for settlement in the UK, so that they can access public funds that would otherwise be unavailable to them.
  • There are many other ways in which a state protects the victims of domestic violence. An obvious way is through the criminal law. The enforcement of the criminal law will not depend on the immigration status of the victim. There may also in principle be access to publicly funded accommodation or other assistance. For example, in the present case, there was evidence from the Appellant herself that she and her two children have been accommodated at public expense since they left the matrimonial home, pursuant to section 17 of the Children Act 1989.

Whether Murray J erred in holding that FA’s case was distinguishable on the facts from A v Secretary of State for the Home Department:

In response the Court in FA(Sudan) noted and concluded:

  • The judgment of the Inner House in A v Secretary of State for the Home Department [2016] CSIH 38; [2016] SC 776  was given by Lady Dorrian and the version of the Concession which was in effect at the relevant time has subsequently been amended to take account of the judgment of the Inner House.
  • At the relevant time the policy did not apply to a sponsor who was a refugee in the UK: it only applied if the sponsor was a British citizen or was settled in the UK. On behalf of the Secretary of State it was submitted that this was not unlawful under Article 14 because a refugee sponsor could be regarded as being in an analogous position to a student or a visitor to the UK. The Inner House rejected that argument.
  • Lady Dorrian considered that the proper analogy was with a British citizen or a person who has settled in the UK. One reason for this was that there was evidence before the Court that a very high percentage (95%) of refugees go on to acquire settled status in the UK(para. 67). Another reason for this was that, unlike students or visitors who come to this country from choice, refugees are outside their own country out of necessity, because of a well-founded fear of persecution. Accordingly, the UK owes them international obligations of protection( para. 66).
  • On behalf of FA it was argued that the Judge was wrong to say that the decision of the Inner House in the case of A was distinguishable on its facts.
  • The Court of Appeal in FA(Sudan) concluded that the  critical point of distinction from the present case was that the appellant in A did have limited leave to be in the UK as the result of her relationship with her sponsor. FA did  not have such limited leave. The appellant in A therefore fell within the rationale of the policy in the DDVC, whereas the present Appellant did not.

Whether Murray J was wrong to hold that section 55 of the 2009 Act has no relevance

It was contended that  FA had two dependent children who are British citizens and the children were described as being “secondary victims” of the domestic abuse suffered by their mother.

It was argued that there was a breach of section 55 of the 2009 Act.

It was contended that the Secretary of Stated was required to extend the scope of the Concession to include applicants such as FA.

The Court concluded rejecting the argument:

  • Section 55 was undoubtedly important, as has been stressed by the Supreme Court, including in immigration cases such as R (MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10; [2017] 1 WLR 271. Nevertheless, it is a process duty and does not dictate any particular outcome in a case like the present.
  • The Court reiterated that the policy under challenge does not distinguish between those who have children and those who do not. Section 55 did not in the Court’s view require the Secretary of State to contradict the fundamental rationale for the Concession. If the policy were to be extended in the way which the Appellant sought to do, that is the effect of what would happen. Section 55 does not dictate that resu

The Court of Appeal dismissed FA’s appeal.