D v Secretary of State for the Home Department

The requirement for very serious reasons to expel a settled migrant who lawfully spent most of childhood and youth in the host country does not extend to a person whose residence was unlawful. Immigration status is either lawful or unlawful for this purpose. Residence since childhood nevertheless remains a weighty consideration in the European Convention on Human Rights article 8 proportionality balance.

Time spent in local authority care does not create a separate legal factor where the decision-maker has already given appropriate weight to the person’s childhood residence and circumstances. On an appeal confined to a point of law, an appellate court cannot substitute its preferred proportionality assessment for a tenable decision by the specialist tribunal.

The appellant, a Ghanaian national, entered the United Kingdom aged six and remained without lawful immigration status. After his father abandoned him, he became a looked-after child under section 20 of the Children Act 1989. He later acquired several convictions, principally involving offensive weapons.

The Secretary of State refused indefinite leave to remain and decided to remove him to Ghana. An immigration judge dismissed his appeal after finding that removal was a proportionate interference with his private life under article 8 of the European Convention on Human Rights. The Upper Tribunal upheld that determination.

The central issue was whether his childhood circumstances brought him within the rule in Maslov v Austria [2008] ECHR 546, under which very serious reasons are required to expel a settled migrant who lawfully spent most of childhood and youth in the host country.

1. Appeal dismissed unanimously. The appellant’s residence had been unlawful in immigration terms. The requirement in Maslov v Austria [2008] ECHR 546 for very serious reasons to justify expulsion therefore did not apply. For that purpose, immigration presence is either lawful or unlawful. The appellant’s unusual childhood circumstances could not convert unlawful residence into lawful residence or alter that legal structure.

2. Residence in the host country since childhood remained a weighty consideration in the article 8 proportionality assessment. The immigration judge had expressly considered the appellant’s age on arrival, the length and circumstances of his residence, and his social, cultural and family ties to the United Kingdom and Ghana. She had attached significant weight to his childhood residence, consistently with JO (Uganda) and JT (Ivory Coast) v Secretary of State for the Home Department [2010] EWCA Civ 10.

3. The appellant’s period in local authority care did not create an additional, freestanding legal factor. The immigration judge knew that he had been looked after by social services and had already assessed the relevant circumstances of his childhood. Repeating the involvement of social workers as a separate consideration would have added nothing to the balance.

4. Under section 13 of the Tribunals, Courts and Enforcement Act 2007, an appeal from the Upper Tribunal lay only on a point of law. A tribunal’s proportionality assessment could be disturbed for legal misdirection, reliance on irrelevant matters, omission of relevant matters, procedural error or irrationality. It could not be displaced merely because another judge might reasonably have reached a different conclusion.

5. The immigration judge had conducted a careful and legally structured proportionality assessment. Although the offending was moderate compared with that in many reported cases, she was entitled to consider its repeated and escalating pattern, the appellant’s breaches of court orders and the real risk of future offending. That prospective risk was particularly significant because prevention of crime was one of the legitimate aims of removal. Her decision fell within the range of reasonable outcomes.

1. Court of Appeal (Civil Division): Dismissed the appeal unanimously. It held that the Upper Tribunal had made no error of law and that the Maslov requirement of very serious reasons did not apply to unlawful residence: [2012] EWCA Civ 39.

2. Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Parkes dismissed the appeal on 26 November 2010, finding no fault in the immigration judge’s determination. The Upper Tribunal refused permission to appeal on 31 March 2011.

3. Immigration Tribunal: Immigration Judge O’Keeffe dismissed the appellant’s appeal against refusal of indefinite leave to remain and the decision to remove him to Ghana. The determination was handed down on 21 June 2010.