Introduction by Dida Jallow-Halake
This is a rather unfortunate case because the Gambian does not seem to be a “criminal” in the true sense of the word. He just appears to be a “hot head” and the crime for which he was convicted happened on a football pitch (I recall saving a certain young Nyassi from punishment at Marina School when I was a teacher there – because of his hot-headedness during a football match when he swore at the Sierra Leonean PE teacher).
The moral of this case is that Gambians, and other Africans, must realise that the law in UK deals with “hot-headedness” and “threats” (such as “I will kill you!” which normally mean absolutely nothing at home) very differently.
I think “AJ” will get a positive result from a new Tribunal hearing, but he needs a good lawyer and a thoroughly well argue presentation which fully exploits the Court of Appeal ruling in his favour below (and the Supreme Court judgement referred to).
PS: The Gambia High Commission convicts should not take any hope from this – their crime is far more serious!
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE SALES
MR JUSTICE NEWEY
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Appellant
– and –
AJ (GAMBIA) Respondent
LORD JUSTICE SALES:
The facts and the Upper Tribunal decision in AJ (Gambia)
10. The appellant was born on 8 September 1990 and is a citizen of Gambia, although he was born in Norway. Between the ages of 2 and 9 he lived in Gambia with his mother. He arrived lawfully in the United Kingdom on 30 July 2000, at the age of 9, with his mother and brother. He was granted indefinite leave to remain on 19 December 2008 after successive extensions of his leave. His mother and brother were granted indefinite leave to remain on the same date.
11. On 18 April 2009, the appellant struck an opponent in a football match, in what the sentencing judge described as an unprovoked attack, and fractured his jaw. He was 19 at the time. He pleaded guilty. On 18 June 2010, he was sentenced to a term of 14 months’ imprisonment for that offence, together with an additional one month’s imprisonment for doing acts tending to pervert the course of justice, to run consecutively – a total of 15 months’ imprisonment. Allowing for time spent on remand, he was released from the Young Offenders’ Institution in August 2010.
12. The appellant had no previous convictions, but was reprimanded in July 2007, when he was 16, in respect of an allegation of battery.
13. On 10 December 2010, the Secretary of State made a deportation order in respect of the appellant. The appellant appealed against that order and sought leave to remain in the United Kingdom based, in particular, on his family and private life here.
14. The appellant maintains that, for reasons to do with her health, his mother is dependent on him.
15. There is also an issue regarding the degree of connection which the appellant has with Gambia.
16. The appellant is in paid employment, working as a packing supervisor in a food outlet. He has not re-offended.
17. The appeal was dismissed by the FTT in a determination promulgated on 14 February 2011. The FTT found on the evidence before it that the appellant had connections to Gambia and could be expected to resettle there. It also found that the relationship between the appellant and his mother was not one of dependence, and did not amount to “family life” for the purposes of Article 8.
18. On 22 December 2011, having exhausted all of his rights of appeal against the deportation order, the appellant lodged an application for further leave to remain which, together with additional representations contained in a letter dated 13 July 2012, the Secretary of State treated as an application for revocation of the deportation order.
19. By letter dated 17 December 2012, the Secretary of State refused this application, and the appellant brought a further appeal. This second appeal was heard by the FTT on 29 April 2013, and its decision was promulgated on 31 May 2013. On this occasion, the FTT allowed the appeal, essentially on the ground that, contrary to the view of the FTT in its first determination, the appellant had no ties with Gambia and so fell within the scope of paragraph 399A of the new rules, and therefore ought to be granted leave to remain.
20. The Secretary of State appealed to the Upper Tribunal. In its decision, the Upper Tribunal held that the FTT had made an error of law in dealing with the issue of the appellant’s ties with Gambia, and therefore held that it (the Upper Tribunal) should re-make the decision on the evidence as it stood before the FTT. It is the fresh decision of the Upper Tribunal which is the subject of the appeal to this Court.
21. The Upper Tribunal concluded that deportation would be in breach of the appellant’s rights under Article 8, and accordingly allowed his appeal against the Secretary of State’s decision. The Upper Tribunal reasoned as follows:
i) It upheld the findings in the first FTT decision, that the appellant does have ties with Gambia within the meaning of the new rules. Therefore, the appellant could not bring himself within paragraph 399A(b) of the new rules (paras. -);
ii) It then applied the “exceptional circumstances” rubric in paragraph 398, and held that there were no exceptional circumstances to justify the grant of leave to remain under the Rules (paras. -). At para. , the Upper Tribunal made the rather Delphic comment, “The search for exceptional circumstances is illegitimate under a pure Article 8 consideration but is legitimate in terms of the Immigration Rules.” It seems likely that this was a reference to the strictures of the House of Lords in Huang v Secretary of State for the Home Department  UKHL 11;  2 AC 167regarding an attempt by the Secretary of State to argue that a test of exceptionality applied in relation to analysis of the circumstances in which leave to remain should be granted under Article 8 outside the Immigration Rules as they stood at the time of that decision;
iii) At paras. -, the Upper Tribunal considered the appellant’s case based on Article 8, outside the Immigration Rules. At para. , it had regard to the well known judgment of the Grand Chamber of the European Court of Human Rights in Maslov v Austria  INLR 47, in particular at para.  of that judgment, where the Court said:
“the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile.”
iv) The Upper Tribunal observed at para.  that the appellant was a settled migrant who had spent the major part of his childhood and youth in the United Kingdom; that although he had connections with Gambia he had not been there since he was very young; and although his offences were not committed when he was a juvenile “he was still only 18 at the time” of the offences;
v) At para. , the Upper Tribunal noted that “It is necessary to take into account that the ‘Article 8’ Immigration Rules are an expression of the Secretary of State’s view of the circumstances in which it is appropriate to deport an individual who has committed criminal offences which result in a particular length of sentence”, in accordance with the decision of the Upper Tribunal in MF (Nigeria). At para. , the Upper Tribunal referred to N (Kenya)  EWCA Civ 1094 and noted the public policy need to deter and to express society’s revulsion of the seriousness of the criminality in question. These were the only references made by the Upper Tribunal to the significance of and weight to be given to the public interest in deportation of foreign criminals. The Upper Tribunal made no separate reference to the UK Borders Act 2007;
vi) At para. , the Upper Tribunal concluded that, “balancing all relevant factors”, the removal of the appellant would amount to a disproportionate interference with his right to private life, including in particular his relationship with his mother. At para. , the Upper Tribunal said that, “Taking full account of the considerations weighing in favour of the appellant’s removal” (a reference back to the matters mentioned at paras.  and , and its assessment at para.  that there was a medium risk of him re-offending), his removal would amount to a disproportionate interference with his private life; therefore, the appeal was allowed under Article 8; vii) At para. , consequent upon its ruling under Article 8, the appellant’s appeal was also allowed under paragraph 390 of the Immigration Rules. (It is not suggested on the appeal before us that the issue under paragraph 390 has any force apart from the Upper Tribunal’s reasoning in relation to Article 8).
22. It is clear from the Upper Tribunal’s decision that it first sought to apply the new rules, and then looked to see if there were other reasons under Article 8, outside the new rules, why leave to remain should be granted. This was reasoning on the model suggested by the decision of the House of Lords in Huang.
23. However, as the judgment of this Court in MF (Nigeria) explains, this was an error, because the new rules, promulgated after Huang, constitute a complete code for consideration of foreign criminal cases contained within the Immigration Rules. In this regard, the new rules constitute a discrete section of the Immigration Rules unlike other parts of the Rules, in relation to which the Secretary of State retains a discretion which may be exercised outside the Rules: see Huang and R (Nagre) v Secretary of State for the Home Department  EWHC 720 (Admin).
42. I turn, then, to the two cases before us.
43. In AJ (Gambia), the Upper Tribunal clearly failed to apply the new rules properly. It separated out consideration of whether there were “exceptional circumstances” under paragraph 398 of the new rules from consideration of whether the appellant had a good claim for leave to remain based on his Article 8 rights, in the manner held to be incorrect in MF (Nigeria).
44. This was a material error of law. As a result of it, the Upper Tribunal failed to assess the appellant’s Article 8 case through the lens of the new rules and failed to give full and proper weight to the public interest in the deportation of the appellant, as a foreign criminal. The Upper Tribunal made no reference to the declaration of the public interest set out by Parliament in primary legislation, in sections 32 and 33 of the UK Borders Act 2007. Such references as the Upper Tribunal did make to the public interest in removal of the appellant, in paras.  and  of its decision, failed to recognise the strength of that public interest. The Upper Tribunal failed to ask itself whether there were “very compelling reasons” such as to outweigh the strong public interest in deportation: see MF (Nigeria) at para. .
45. Moreover, as a consequence of its error, the Upper Tribunal did not make a proper assessment of the impact of the judgment of the Grand Chamber of the Court of Human Rights in Maslov v Austria. At para.  of its decision, the Upper Tribunal highlighted para.  of the judgment of the Grand Chamber, in which it says that in relation to a settled migrant of the kind described there, “very serious reasons are required to justify expulsion”. The Upper Tribunal did not attempt to integrate this guidance within the framework of the new rules, but rather treated it as a free-standing matter of assessment for itself in relation to which it appears to have regarded the relevant approach to be one which imposed a heavy onus on the Secretary of State to show “very serious reasons” justifying expulsion.
46. In my view, the Upper Tribunal should have approached the assessment of the claim under Article 8 by application of the new rules, and in particular (since the appellant could not bring himself within paragraphs 399 and 399A of the new rules) by asking itself whether there were very compelling reasons, within the “exceptional circumstances” rubric in paragraph 398, to outweigh the strong public interest in deportation in the appellant’s case. In addressing that question, the Upper Tribunal should, of course, have given due respect to the guidance from the Grand Chamber in Maslov at para.  of the judgment (reading it in the context of the general guidance given by the Grand Chamber at paras. - of the judgment), but as a matter to be brought into the overall assessment and balanced against the strong public interest in deportation to which the UK Borders Act 2007 and the new rules give expression. On a proper approach under the new rules, in relation to a person assessed to have active ties to his country of citizenship, without a relevant family life in the United Kingdom and whose serious offending had occurred when he was an adult, I think the more natural conclusion would be that deportation would be found to be justified in a case like this.
47. However, the appellant in AJ (Gambia) wishes to adduce further evidence relevant to the assessment required under Article 8, and on the footing that we came to the conclusion that there had been a material error of law by the Upper Tribunal the parties were agreed that the case should be remitted to the Upper Tribunal for a new decision to be made.