Private life vs public interest: when does integration defeat deportation from the UK?

Theshort but significant Court of Appeal judgment in Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 concerned an appeal against deportation of a person convicted of serious drug offences who had been living in the UK from age 6.

The Court gave the first and only guidance available on the regulation of private life claims by “foreign criminals” under Parliament’s new statutory human rights framework.

Under this provision, “foreign criminals” sentenced to over 12 months but under 4 years imprisonment who are claiming leave to remain in the UK based on their right to private life under Article 8 of the European Convention on Human Rights must show, among other things, that there would be “very significant obstacles to integration” in the country of return. [1]

Kamara has significant implications for many other (non-criminal, non-deportation) cases where persons are relying on their right to private life to justify leave to remain in the UK, including claims by asylum seekers, persons who overstay their leave and victims of human trafficking. [2]

Alice Muzira has already provided a thorough report on this case and the applicable law. Here’s my brief digest:

• The concept of integration is a broad one, not limited to a person’s ability to find work and sustain a living (§ 14);
• Lord Justice Sales declared that it was not appropriate to add a gloss to the language of the statute, before adding his own fairly thick gloss to the statute:

The idea of “integration” calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life. (§ 14)

• The Court upheld the Upper Tribunal’s decision to allow Mr Kamara’s appeal and dismissed the appeal of the Secretary of State. His family had relocated to the UK and he had no contact with any relatives in Sierra Leone, nor was he familiar with the language and culture there (§§ 9 to 12).

It’s a refreshing result after a rash of cases earlier this year in which the Court of Appeal overturned the Upper Tribunal’s decisions in deportation cases on somewhat semantic grounds.

Researcher and academic Melanie Griffiths called it a ‘progressive take’ on the integration test. I agree.

A rare Article 8 deportation win for an ex-foreign offender! Plus progressive take on defining “integration”. https://t.co/cWyXbc9DuV

— Melanie BE Griffiths (@MBEGriffiths) August 11, 2016

The guidance in Kamara should probably be read alongside that in Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) at §§ 123 to 125, which applied to the previous incarnation of the test in the Immigration Rules (requiring persons to show they had “no ties” to the country of return). While the wording of the two tests are different, there are some common themes here. I’ve quoted Ogundimu below to provide a composite overview of what Judges have said about this important area:

123. The natural and ordinary meaning of the word ‘ties’ imports, we think, a concept involving something more than merely remote and abstract links to the country of proposed deportation or removal. It involves there being a continued connection to life in that country; something that ties a claimant to his or her country of origin. If this were not the case then it would appear that a person’s nationality of the country of proposed deportation could of itself lead to a failure to meet the requirements of the rule. This would render the application of the rule, given the context within which it operates, entirely meaningless.

124. We recognise that the test under the rules is an exacting one. Consideration of whether a person has ‘no ties’ to such country must involve a rounded assessment of all the relevant circumstances and is not to be limited to ‘social, cultural and family’ circumstances…

125. Whilst each case turns on its own facts, circumstances relevant to the assessment of whether a person has ties to the country to which they would have to go if they were required to leave the United Kingdom must include, but are not limited to: the length of time a person has spent in the country to which he would have to go if he were required to leave the United Kingdom, the age that the person left that country, the exposure that person has had to the cultural norms of that country, whether that person speaks the language of the country, the extent of the family and friends that person has in the country to which he is being deported or removed and the quality of the relationships that person has with those friends and family members.

[1] Section 117C(4) of the Nationality, Immigration and Asylum 2002 (‘NIAA 2002’), also known as ‘Exception 1’. This provision is replicated in the Immigration Rules at paragraph 399A.

[2] Non-deportation cases can rely on either paragraph 276ADE(1)(vi) of the Immigration Rules (ie. where a person is over the age of 18 and has lived in the UK continuously for under 20 years discounting any period of imprisonment) or the broader Article 8 right to private life outside of the Rules. Although deportation cases are subject to additional, tougher requirements, the test in paragraph 276ADE(1)(vi) is now the same as in section 117C(4)(c) NIAA 2002.