Immigration

Deportation - Exclusion of immigrant deemed to be conducive to public good

RS (Uganda) v Secretary of State for the Home Department: Court of Appeal, Civil Division (Lord Justices Rix, Etherton and Patten): 1 December 2011

The claimant had arrived in the UK when he was 12, and had been granted indefinite leave to remain as a dependant of his mother. He had a history of offending, including, when he had been 17, a conviction for four counts of robbery on a train, for which he had received a detention and training order. In light of his conviction for robbery, the claimant had been informed that the respondent secretary of state had deemed it conducive to the public good to make a deportation order against him.

The claimant challenged that decision on the grounds that it had interfered with his right to a private and family life pursuant to article 8 of the European Convention on Human Rights (the convention). The Asylum and Immigration Tribunal (the AIT) found that there had been nothing to raise a suggestion that there had been a dependency, as required to establish a family life for the purposes of article 8 of the convention, between the claimant and his mother or his siblings, but rather that the claimant's main influences and associations had been with his contemporaries and with criminals. The AIT accordingly found that there had been no family life within the meaning of article 8 of the convention.

The claimant appealed to the Upper Tribunal (Immigration and Asylum Chamber) on the grounds that the AIT had wrongly found that no family life had been established in the UK, had failed to consider the claimant's private life, and had failed to take into account the decision of Maslov v Austria (Application No. 1638/03) [2007] 1 FCR 707 (Maslov). The Upper Tribunal held that there had been no error of law in the determination of the AIT, and that so far as concerned the issue of family life, each case had been fact sensitive, and the AIT had not erred in law in concluding that the appellant had not had a family life that had attracted protection under article 8 of the convention. The claimant appealed.

The appellant submitted that the perversity of the Upper Tribunal's decision had been the finding that he had no family life within article 8 of the convention on the ground that the AIT had found that the appellant had associated with gangs and gang culture and so had turned his back on his family. The appellant submitted that it had been plain that in principle the latter would not necessarily have excluded family life within article 8 of the convention, which had been borne out by the decision of Maslov. Further, the appellant submitted that the Upper Tribunal had wrongly applied the proportionality test under article 8 of the convention, and had failed to follow the approach in Maslov where the offences, as in the instant case, had been in the context of a string of other non-violent offences. The appeal would be dismissed.

Much of the appellant's argument had involved a detailed comparison of the facts of the instant case with those in Maslov, which had been entirely inappropriate. The value of the decision of Maslov had been in the guidance which it had given about the principles that were to be applied in cases of this kind. It should not be treated as decisive in relation to whether particular facts had engaged article 8 of the convention or whether they had made removal disproportionate. Each case was fact sensitive and the weight to be given to particular features necessarily varied according to the circumstances.

That case was important for the principles that it had laid down, and the only question had been whether those principles had been correctly applied by the AIT and the Upper Tribunal. In the circumstances, it had not been difficult to distinguish that case from the instant case in a number of respects, including, inter alia, that the claimant in the instant case had been convicted of four counts of robbery involving robbery of young vulnerable victims on a train at night. Maslov had given examples of criminal offences that had justified expulsion, including robbery and aggravated assault. It could not be said that the Upper Tribunal had failed to analyse sufficiently the nature of the appellant's offences in the context of the Maslov principles (see [31], [33], [39] of the judgment). The Upper Tribunal had been entitled to reach the conclusion that there had been very serious reasons in the instant case to justify deportation (see [37] of the judgment). Maslov v Austria (Application no 1638/03) [2007] 1 FCR 707 distinguished.

Lynne Brakaj (instructed by Halliday Reeves, Gateshead) for the claimant; Neil Sheldon (instructed by the Treasury solicitor) for the secretary of state.