Olufisayo Olatuboshun Ogundimu v Secretary of State for the Home Department

Introduction

1. The appellant is a citizen of Nigeria born on 29 September 1984. He lawfully entered the United Kingdom on 7 July 1991, aged six, in order to join his father, who has been settled and mainly resident here since 1961. He was granted indefinite leave to remain on the 29 June 1999. He had thus been resident in the United Kingdom for 21 years at the time of the hearing before us and for about three quarters of his life.

2. The appellant has had a troubled youth with a difficult education history, including significant periods spent in special needs schools. He first appeared before a juvenile court on criminal matters in August 1999, when he was handed a 12 month conditional discharge for obtaining property by deception. He had six further appearances before the juvenile court, being handed a variety of sentences including Supervision Orders, Community Rehabilitation Orders and an Action Plan Order. Between March 2003 and April 2009 he appeared on a further 12 occasions before the criminal courts as an adult, mainly for driving and drug possession offences. These were generally dealt with by way of fines and community penalties.

3. However, on the 18 December 2008 the appellant was sentenced at the Croydon Crown Court following a plea of guilty to a charge of possessing a Class C controlled drug with intent to supply – namely cannabis. This offence was committed on the 21 October 2008 along with another offence of possessing a Class A controlled drug. The appellant was committed for sentencing to the Crown Court for supplying cannabis, where a sentence of imprisonment for eight months was passed, and forfeiture was ordered of drugs, cash and three mobile phones. On the 24 April 2009 he was dealt with by the Croydon Magistrates for possession of the Class A drugs and given a conditional discharge. This offence was committed at the same time as the matter dealt with at the Crown Court; it is not apparent why the two matters were not dealt with at the same time. It is clear from the information we have seen that, at that time, the appellant had a cocaine addiction that he was supporting by selling cannabis.

4. On the 8 April 2010 the Secretary of State made a decision to deport the appellant as a persistent offender. He appealed this decision to the First-tier Tribunal. In doing so he relied on the fact of his long residence and that he is the father of, and maintains a relationship with a British citizen child born on the 24 August 2004, JT.

5. On the 24 June 2010 the appeal was heard by a Panel comprising of FtT Judge Warren Grant and Mr AF Sheward (non-legal member). The appellant did not attend the hearing and no other witnesses gave oral evidence on his behalf. The appeal was dismissed in a determination promulgated on the 29 June 2010. The appellant drafted and lodged his own grounds of appeal against this decision, but permission to appeal was refused by the First-tier Tribunal on the 4 August 2010. It was not renewed to Upper Tribunal within the required time limit. A deportation order was signed against the appellant on the 13 July 2011.

6. The appellant was detained by the immigration authorities on the 12 September 2011. He subsequently obtained legal representation and on the 19 September and 31 October 2011 representations were made on his behalf in reliance on his family and private life in this country, requesting that the deportation order be revoked. On the 18 January 2012 the Secretary of State made a decision refusing to revoke the deportation order, and certified the appellant’s application under section 94 of the Nationality, Immigration and Asylum Act 2002 , thus depriving him of a further in country right of appeal to the First-tier Tribunal.

7. Removal directions were set and the appellant was due to be removed to Nigeria on the 23 February 2012. However, having had yet further representations rejected by the Secretary of State, the appellant brought an application for judicial review on the day he was due to be removed. As a consequence, the Secretary of State deferred the directions made for his removal.

8. At this stage his present legal team realised that he had not exhausted his appellate remedies from the adverse decision of the First-tier Tribunal and so, on the 5 March 2012, he made an out of time application to the Upper Tribunal for permission to appeal against the decision of the First-tier Tribunal of 29 June 2010. This application was granted by an Upper Tribunal Judge on the 14 March 2012. The grant of permission to appeal

9. When granting permission to appeal the judge stated as follows [the names having been anonymised by us]: “3. I have the benefit of very full grounds drawn by experienced counsel. They are all arguable but I am particularly concerned by the ground complaining that the Tribunal gave no reason for attaching no weight to the evidence in the form of (sic) letter to the Secretary of State (the subsequent witness statement was not signed) from one [Ms CT] who introduced herself as the mother of the appellant’s son and said that the appellant “has been apart (sic) his life, he sees him regularly and is also responsible for his school and wealthfair (sic)”. Clearly if [Ms CT’s] evidence was, or should have been, accepted then it is at least arguable that the determination was deficient. 4. The application is very late. It should have been received no later than 26 August 2010 but it was received on 5 March 2012. A main reason for the application being late is that the appellant acted on advice suggesting a different remedy. 5. My powers in these circumstances are wide. I remind myself that there is at the core of this claim an arguable assertion that the best interests of the child have not been considered properly and I extend time”

10. Before we became seized of the appeal there had been a hearing before another Upper Tribunal Judge during which the Secretary of State expressed concern at the grant of permission to appeal having been made so long after the expiry of time to renew the application.

11. We understand those concerns but it is common ground between the parties that:- i. There is no power to revoke a grant of permission to appeal if the judge had power to grant it. ii. The signing of the deportation order did not deprive the judge of the power to grant permission to appeal; section 104(5) of the Nationality, Immigration and Asylum Act 2002 stating that only appeals brought against decisions of the types referred to in sections 82(2) (a), (c), (d), (e) or (f) are to be treated as finally determined upon the making of a deportation order. The appellant appealed to the First-tier Tribunal against a decision of a type referred to in section 82(2) (j) of the 2002 Act . iii. The only remedy available to the Secretary of State to challenge an inappropriate exercise of discretion to extend time and/or grant of permission to appeal is by way of judicial review. That course had been considered in this case and a decision was made not to challenge it.

12. Nevertheless, we consider it appropriate to make some observations about the grant of permission to appeal out of time. The appellant was required, by rule 21 of the Tribunal Procedure (Upper Tribunal) Rules 2008 [“2008 Rules”], to make his application for permission to appeal to the Upper Tribunal no later than seven working days after the date on which the First-tier Tribunal’s refusal of permission was sent to him. He was required, therefore, to have filed his application by the 26 August 2010. Under rule 21(6) an applicant who is out of time must include a request for an extension of time and the reason why the application was not provided in time.

13. The Upper Tribunal has jurisdiction to extend the time for the filing of an application for permission to appeal pursuant to its case management powers set out in rule 5 (3)(a) of the 2008 Rules. Whilst the judge granting permission was correct to state that he had ‘wide powers’ when considering whether to extend time, those powers must be exercised having regard to the ‘overriding objective’ (rule 2(3)).

14. Rule 2(1) of the 2008 Rules provides that the overriding objective of the Rules is to enable the Upper Tribunal to deal with cases ‘fairly and justly’. That requirement is not limited in its effect to the giving of due consideration to the position of each of the parties to a particular appeal, it allows interests of a wider scope to be considered. This must include the public interest in there being finality to litigation, which is a significant interest of both parties to litigation in immigration appeals where the time limits are stricter than in other chambers of the Upper Tribunal.

15. The Secretary of State bears the difficult administrative and financial burden of maintaining effective immigration control. One reason for the strict time limits is so that the UKBA can be clear when a claimant’s appeal rights are exhausted and thereafter proceed to take the necessary enforcement action.

16. Factors relevant to the exercise of discretion to extend time under rule 5(3)(a) of the 2008 Rules will include, but are not limited to: (i) the length of any delay, (ii) the reasons for the delay, (iii) the merits of the appeal and (iv) the degree of prejudice to the respondent if the application is granted. The merits of the appeal cannot be decisive (see the reasons given in Boktor and Wanis [2011] UKUT 00442).

17. Here the grounds in support of the application for permission to appeal out of time explained that the appellant had been misadvised by his previous representatives who advised him that he should proceed by way of fresh representations rather than pursue a right of appeal and that consequently a clear error of law in the FtT’s decision had been overlooked.

18. In YD (Turkey) [2006] EWCA Civ 52 the Court of Appeal was considering both an application for a stay of removal and an application for an extension of time for lodging an appeal to the Court of Appeal against a decision of the Asylum and Immigration Tribunal, the applicant having failed to apply to the AIT for permission to appeal in time. Brooke LJ (with the agreement of Moore-Bick and Wilson LJJ), summarised his conclusions on the issue of whether to grant an extension of time as follows [paragraph 41]: “(3) Every day that passes from the time when the AIT is without jurisdiction is likely to weaken the chance of this court being willing to grant an extension of time, and it would be rare for the court to grant an extension of time for two months or more: it will have to be satisfied that a significant injustice has probably occurred; (4) The court will only grant such an extension if in all the circumstances (including the considerations set out in CPR 3.9) it is just to do so. The appellant will have to present a strong case that he is likely to achieve ultimate success on his appeal against the original immigration decision for such an exceptional course to be justified.”

19. We see no reason why this general principle ought not also to be of equal application when consideration is being given to applications for an extension of time to apply for permission to appeal to the Upper Tribunal.

20. There must always be a reason shown why time limits have not been complied with and the longer the period of non-compliance the more powerful those reasons should be. Whilst each case must be determined on its own facts, given the strict time limits in immigration appeals generally and the reason behind those time limits, the expectation is that it will be an exceptional case where permission to be appeal should be granted where there has been a significant delay in filing an application; by significant delay we would certainly include any period more than 28 days out of time.

21. Where a judge is minded to grant permission to appeal in such cases he or she should specifically consider whether removal action has been initiated and whether there are other reasons why the grant of permission would prejudice the public interest in effective administration of immigration control. As permission is normally granted on the papers without a hearing and without an opportunity for the respondent to raise objections, we also consider that the preferable course is that the respondent is given an opportunity to make representations on the grant of permission in cases where the delay exceeds 28 days. Perhaps the easiest way to achieve that is to list the permission application for oral hearing on seven days clear notice. In such cases the claimant may need to substantiate any reason why the claim is made late, by way of evidence.

22. We observe that in this case the appellant was already challenging his removal and the rejection of the representations as a fresh claim and we recognise, for reasons given below, that there was a strong claim that the FtT decision contained a serious error of law. There was substance in the contention that the previous representatives had failed to advise the appellant of that error of law as a basis of seeking permission to appeal. Revised Decision letter

23. On the 16 August 2012, following the grant of permission but before the error of law hearing, the Secretary of State, in light of HC 194 [the amendments made to the Immigration Rules that took effect on 9 July 2012], provided a further letter setting out her reasons for concluding that the appellant’s deportation should be maintained and why, applying these new Rules, in her view it would not lead to a breach of Article 8 ECHR.

24. The Secretary of State noted that the appellant had been convicted of 30 offences of which three remained unspent. She concluded that paragraph 398(c) was of application to the appellant because his deportation would be conducive to the public good as a consequence of him being a persistent offender. The Secretary of State then gave consideration to the application of paragraphs 399(a), 399(b) and 399A of the Immigrations Rules.

25. In relation to paragraph 399(a) the Secretary of State concluded that:- i. The appellant is not in a genuine and subsisting relationship with JT (his son); ii. JT is a British citizen living in the United Kingdom; iii. It is unreasonable to expect JT to leave the United Kingdom.; iv. There is another family member who is able to care for JT in the United Kingdom, that being his mother, CT.

26. As to paragraph 399(b), it was concluded that:- i. The appellant is not in a genuine and subsisting relationship with JD (his claimed partner); ii. JD is a British citizen living in the United Kingdom; iii. The appellant has been living in the United Kingdom with valid leave continuously for at least 15 years immediately preceding the immigration decision; iv. There are no insurmountable obstacles to the appellant’s family life with JD continuing outside the United Kingdom.

27. In relation to paragraph 399A the Secretary of State concluded that:- i. The appellant has lived for 20 years continuously in the United Kingdom immediately preceding the date of the immigration decision; ii. The appellant has not demonstrated that he has ‘no ties’ to Nigeria.

28. The Secretary of State finally concluded that there were no exceptional circumstances in the appellant’s case so as to warrant a departure from the above stated position and that, as a consequence, his removal would not lead to a breach of Article 8 ECHR. Error of Law

29. On the 23 October 2012 we heard argument on the issue of whether the First-tier Tribunal’s decision involved the making of an error of law such that it ought to be set aside. At the end of the submissions Ms Kiss, representing the Secretary of State, accepted that the First-tier Tribunal had erred in law at paragraph 18 of its determination. We agreed that this was so and now give our reasons for coming to this conclusion.

30. There was no dispute before the First-tier Tribunal as to the date that the appellant first arrived in the United Kingdom, or that he had remained continuously living here since 1991. When considering the application of Article 8 ECHR the First-tier Tribunal concluded as follows: “[18] On the basis of the evidence before us we have found negligible evidence of private and family life. The appellant’s sister attended at the case management review hearing and stated that their father was in Nigeria and would not return before the date for the full hearing but no family member attended the hearing to give evidence on behalf of the appellant. We find that he clearly lives with his parents but that he is an adult and that his relationship with his parents and his siblings does not go beyond normal emotional ties beyond adults. The fact that his father is in Nigeria shows that he visits that country and there is nothing to stop any of the appellant’s close family members from visiting Nigeria or even going to live there is they wish. The consequences of the removal of the appellant will not be sufficiently grave so as to engage the Convention. Even if the Convention were to be engaged his removal would be in accordance with the law; and would have the legitimate aim of protecting the public against those who commit crimes. There is nothing in the appellant’s personal history in the form of compassionate circumstances which would outweigh the duty imposed upon the Secretary of State to prevent crime and to protect the public. In this context we refer to paragraph 35 of Samaroo and another v SSHD [2001] EWCA Civ 1139 and to paragraph 65 of N (Kenya) v SSHD [2004] EWCA Civ 1094 . The judgmental issue is whether in a democratic society it would be necessary and proportionate to the legitimate aim and if we have to go on to make a finding in respect of proportionality we find that removal is proportionate.”

31. Insofar as the First-tier Tribunal concluded that Article 8 was not even engaged and that there would be no interference requiring justification, we have no doubt that it made a serious error of law. In AG (Eritrea) [2007] EWCA Civ 801 , and in particular paragraphs 26-28, the phrase " consequences of such gravity" in the Razgar question (2) were found to posit no particularly high threshold.

32. Had the tribunal correctly directed itself it would have been clear, even on the limited facts before it, that the only conclusion open to it, given that the appellant had lived here since the age of six and for nearly 20 years, was that Article 8(1) was engaged. This was a case where the tribunal of its own motion, irrespective of anything the appellant advanced or failed to advance in his home made grounds of appeal, ought to have considered and applied the decision of the Grand Chamber of the European Court of Human Rights in the case Maslov v Austria [2008] ECHR 546.

33. In Maslov the applicant had resided in Austria for 18 years since the age of six and had appeared before the juvenile courts on multiple counts of aggravated gang burglary and attempted aggravated gang burglary, forming a gang, extortion, assault and unauthorised use of a vehicle, committed between November 1998 and June 1999. He was sentenced to 18 months' imprisonment, 13 of which were suspended on probation. He was subsequently sentenced to 15 months imprisonment on eighteen counts of aggravated burglary and attempted aggravated burglary. When fixing the sentence the court observed that the applicant, although still living with his parents, had completely escaped their educational influence, had repeatedly been absent from home and had dropped out of school. The applicant had also failed to comply with the order to undergo drug therapy. On 3 January 2001 the Vienna Federal Police Authority imposed a ten year exclusion order on the applicant. Having regard to the applicant's convictions, it found that it was contrary to the public interest to allow him to stay in Austria any longer. The applicant appealed, submitting amongst other things that the exclusion order violated his rights under Article 8 of the Human Rights Convention as he had come to Austria at the age of six, his entire family lived in Austria and he had no relatives in Bulgaria. Following a succession of unsuccessful appeals to the Austrian courts he was deported to Sofia in December 2003. He subsequently applied to the ECtHR. The Grand Chamber held that there had been a violation of Article 8.

34. In coming to its conclusion the Court considered whether the interference with the applicant’s private and family life could be justified under Article 8(2). It set out, in paragraph 57, criteria relevant to that exercise where an offence is committed by an applicant. The Court then elaborated on those criteria in passages that should be very familiar to all judges making these decisions. We emphasis the following two paragraphs: "74. Although Article 8 provides no absolute protection against expulsion for any category of aliens (see Üner, § 55), including those who were born in the host country or moved there in their early childhood, the Court has already found that regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Üner , § 58 in fine ). 75. In short, 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."

35. It was thus in June 2010 trite law that in cases of the present kind, where there has been long residence since childhood, the private life claim will succeed unless there are “very serious reasons...to justify expulsion”. That remains the case: see for example MW (Democratic Republic of Congo) v SSHD [2011] EWCA Civ 1240 Sullivan LJ at paragraph 75 and the reported decision of the Upper Tribunal in Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 00046 (IAC) .

36. The First-tier Tribunal in the instant appeal singularly failed to direct itself in accordance with Maslov ; failed to recognise the strength of the private life claim by reason of long residence alone; failed to identify the need for very serious reasons to justify the expulsion and, accordingly, failed to determine the human rights appeal lawfully. As a consequence of these serious flaws, the decision cannot stand. For these reasons we set aside the determination of the First-tier Tribunal and indicated that we would remake the decision ourselves on 13 November 2012. Admission of the appellant’s spent convictions

37. One of the appellant’s grounds of appeal before the Upper Tribunal was that the determination of the First-tier Tribunal contained a further error of law in that it had relied on convictions of the appellant that were spent and should have been excluded from consideration.

38. Section 7(3) of the Rehabilitation of Offenders Act 1974 provides as follows: “If at any stage in any proceedings before a judicial authority in Great Britain … the authority is satisfied, in the light of any considerations which appear to it to be relevant (including any evidence which has been or may thereafter be put before it), that justice cannot be done in the case except by admitting or requiring evidence relating to a person’s spent convictions or to circumstances ancillary thereto, that authority may admit or, as the case may be, require the evidence in question notwithstanding the provisions of subsection (1) of section 4 above, and may determine any issue to which the evidence relates in disregard, so far as necessary, of those provisions”

39. It is for the Secretary of State to satisfy us that justice could not be done without admitting the appellant’s spent convictions ( AA (Spent convictions) Pakistan [2008] UKAIT 00027 ). We concluded that she has done so on the facts of this case.

40. In a case of this sort, where the Secretary of State relies on a persistent course of conduct rather than a single serious offence to justify deportation, it is of importance to look at the appellant’s offending behaviour as a whole. It is the Secretary of State’s case that the appellant’s offending behaviour escalated and would continue to do so. It would be artificial in such circumstances to consider only the most very recent convictions. We therefore directed that we would admit the whole of the appellant’s criminal record when we re-made the decision, in order to obtain a complete picture. The weight to be attached to spent convictions is a very different matter, but their relevance is the information they throw on the strength of the public interest in deporting the appellant for his most recent offending.

41. We also observe that where persistent criminal conduct is relied on, it is important for the judge to have the full Criminal Record Office print out rather than just a summary of the dates of convictions. The full list assists discovery of when the offending occurred, whether it was in breach of a Community Order, whether the appellant was on bail at the time of the offending, and other data about the sequence of the offending. We pointed out at the hearing that any suggestion that the Data Protection Act restricted disclosure of such information to a court is misconceived. Other Case Management issues

42. At the error of law hearing it appeared that other information about the appellant’s personal and family life and the strength of his connection with his child might be needed, including material in the possession of local social services. We were aware that the appellant relied on a very full report of an independent social worker who had made a home visit to see the appellant with JT.

43. In order to assist in the case management of this appeal we directed there be a consolidated bundle of evidence produced by the appellant no later than 5pm on 5 November 2012. We also directed that both parties inform the Tribunal in writing by 10 am on 6 November 2012:- i. Which witness they required to attend for cross examination and ii. Whether any further directions for the production of documents was sought. We made provision for a ‘For Mention’ hearing on the 6 November, in order to ensure that the re-making hearing the following week would proceed without difficulty. We expressed the hope that Ms Kiss would retain the conduct of the case on behalf of the Secretary of State given the care she had clearly taken to prepare for it hitherto.

44. By way of the facsimile received by the Tribunal at 10.45am on the 5 November the appellant’s solicitors made an application for an extension of time in relation to the direction that they produce a consolidated bundle. They did not indicate that they wished to cross-examine any of the witness’ relied upon by the Secretary of State.

45. In response to the directions, the Secretary of State served a witness statement of a Ms Laura Best. The Secretary of State failed, however, to inform the Tribunal in writing which witnesses, of those included in the material before us on the 23 October 2012, she required to attend for cross-examination. At the For Mention hearing Mr Bramble indicated that he had only very recently taken over the file as Ms Kiss was unavailable for reasons which we fully understand. He provided no explanation as to why the Secretary of State had not complied with the directions of the Tribunal and agreed that the appellant ought to be given a short extension of time in which to file and serve a consolidated bundle of evidence . He indicated that as far as he was aware the Secretary of State did not require the attendance of the appellant’s witnesses at the hearing, although by way of caveat he noted that the up-to-date statements of the witnesses had yet to be filed.

46. A consolidated bundle, absent witness statements, was received by the Tribunal on the morning of the 8 November, in compliance with the amended timetable. Shortly thereafter, on the same day, the Tribunal received a further bundle containing (i) witness statements prepared for an earlier hearing before the Upper Tribunal, and (ii) updated witness statements for all but one the appellant’s witnesses. There was no updated statement from CT, who is the mother of JT. We were made aware that there was some tension between her and the appellant’s current partner JD. The hearing on 13 November

47. At the outset of the hearing Mr Allan, who now appeared for the Secretary of State, indicated that although the Secretary of State had received the consolidated bundle, she had not received the additional bundle containing the witness statements. Ms Hooper confirmed that she had been instructed that such statements had been served on the Secretary of State by facsimile, for the attention of Ms Kiss.

48. As a consequence we delayed the start of the proceedings to give Mr Allan the opportunity to consider these statements. We note, however, that many of the statements contained within this bundle had previously been filed and served by the appellant for the purposes of use at an earlier hearing before the Upper Tribunal. As detailed above, there were, additionally, short supplementary statements from all but one of the witnesses relied upon by the appellant.

49. Upon the resumption of the hearing Mr Allan indicated that he wished to cross-examine the appellant and all of his witnesses. We directed Mr Allan’s attention to the directions of the 23 October, and the failure of the Secretary of State to comply with those directions by informing the Tribunal in writing which witnesses would be required for cross-examination. Mr Allan responded by stating that he had important points to put to the witnesses and that the Secretary of State had not had opportunity, prior to the day of the hearing, to consider the additional witness statements and consequently to know whether there was a need for the witnesses to be cross examined.

50. We rejected Mr Allan’s request. The Secretary of State was provided with detailed witness statements from the appellant, and each of his witnesses, several months prior to the hearing of this appeal. In such circumstances, it is clear that the Secretary of State was in a position, at least a week before the hearing, to be able to properly identify which of those witnesses she wished to cross-examine. The Upper Tribunal had by this stage had three hearings following the grant of permission; the need for expedition and efficient use of court time was obvious. Where either party fails to co-operate with the Tribunal or respond to directions they must expect to bear the consequences of their own failure to properly prepare for the hearing.

51. CT was not present at the hearing, nor was there any need for her to be. If we were to accede to Mr Allan’s request to allow her to be cross-examined, it would have necessitated a further adjournment of the appeal. Mr Allan could not rely on the fact that the Secretary of State had not seen all of her evidence until the morning of the hearing.

52. However, given that the other witnesses were present at the hearing and that some of what was said in their statements was new, we indicated that we would allow cross-examination of the appellant, his father and JD, despite the Secretary of State’s failure to comply with the directions.