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

“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.