The Secretary of State for the Home Department v Christopher Green

In deportation appeals concerning decisions made after 9 July 2012, the Tribunal should first consider the applicable Immigration Rules and make relevant findings. It must then consider the wider Article 8 analysis where the Rules do not reflect established human-rights principles or where exceptional factors arise outside them.

The concept of ties requires a continued connection with life in the proposed country of return. Remote or abstract links, including nationality alone, are insufficient. In assessing proportionality for a young offender, the Tribunal must give proper weight to the age at which offending occurred and to the solidity of ties. Conduct relevant to deportation may be considered even if it produced no charge or conviction.

The Secretary of State appealed against the First-tier Tribunal’s decision of 17 October 2012 allowing Christopher Green’s appeal against a deportation order made on 22 August 2012.

The claimant, a Jamaican national, had arrived lawfully in the United Kingdom aged seven and later obtained indefinite leave to remain. He had committed repeated offences as a juvenile, including drug-supply offences connected with a gang, and received an 18-month detention and training order. The Secretary of State treated him as a persistent offender under the Immigration Rules.

The central issues were whether the First-tier Tribunal had failed to apply the Article 8 provisions of the Immigration Rules, had inadequately assessed gang membership and reoffending risk, and should have treated any irregular immigration status adversely.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. Its decision that deportation would be disproportionate therefore stood.

2. A tribunal considering a post-9 July 2012 deportation decision should first determine how the Immigration Rules apply. It should then consider the wider Article 8 analysis where the Rules and established human-rights law are not aligned, or where exceptional factors not addressed by the Rules arise.

3. The First-tier Tribunal had not expressly resolved whether the claimant had no ties with Jamaica for paragraph 399A(b). Any error was immaterial. Properly understood, ties require a present and continued connection with life in the country of return, rather than remote or abstract links. The claimant’s nationality, childhood residence and possible future contact with his estranged father did not establish present ties.

4. The Rules did not reflect two material features of the Article 8 analysis: the age at which the claimant offended and the solidity, rather than mere existence, of ties with the destination country. The Tribunal was therefore entitled to apply the principles governing the deportation of young offenders, including the special weight given to offending committed as a juvenile by a person who had spent most of childhood in the host country.

5. The First-tier Tribunal had adequately considered gang membership, the criminal record and the risk of reoffending. In a deportation appeal, relevant conduct which did not result in a charge or conviction may be considered despite the absence of sentencing remarks. The assignment of weight is ordinarily for the fact-finding tribunal and will rarely disclose an error of law.

6. The claimant had entered lawfully as a child and had not defied immigration control. Any period of irregularity could not properly be held against his status as a settled migrant.

The Tribunal reaffirmed the warning that a significant further offence or renewed gang association would lead to deportation irrespective of personal ties.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed and the First-tier Tribunal’s decision allowing the Article 8 appeal remained in force.
• First-tier Tribunal: By a decision dated 17 October 2012, it allowed the claimant’s appeal against the Secretary of State’s decision of 22 August 2012 to make a deportation order.