YM (Uganda) v Secretary of State for the Home Department

On an appeal from the Upper Tribunal, legal error is assessed under the law applicable when that tribunal decided the case. Later statutory provisions and Immigration Rules become relevant if the decision is set aside and remade.

The 2012 deportation rules were a complete code. Rule 398 required the sentence for an individual offence to be considered and did not permit aggregation of separate historic sentences. Under Rule 399A(b), the relevant ties are the person’s own continuing connection with the receiving country and the support available there. A tribunal must make a rounded assessment of those matters. It errs in law if it substitutes relatives’ ties for the appellant’s own ties. Speculative expert evidence did not establish a real risk of treatment contrary to Article 3.

The appellant was a Ugandan national who had lived in the United Kingdom from childhood and had indefinite leave to remain. His convictions included aggravated burglary and offences of attending terrorist training camps. The Secretary of State decided in 2008 to deport him.

The Asylum and Immigration Tribunal allowed his appeal on Article 8 grounds in 2009. The Upper Tribunal later set that determination aside and, on remaking the decision, dismissed his appeals under Articles 3 and 8 in decision IA097392008. It held that deportation was proportionate and that return to Uganda would not expose him to a real Article 3 risk.

The appeal concerned the application of the 2012 Immigration Rules, the meaning of “no ties” in Rule 399A(b), the effect of later legislation and rules, and whether the Upper Tribunal had erred in its Article 3 assessment.

1. Appeal allowed in part. The court allowed the Article 8 appeal, set aside the Upper Tribunal’s decision on that issue, and remitted it to a differently constituted Upper Tribunal. It dismissed the Article 3 appeal.

2. Under section 14 of the Tribunal, Courts and Enforcement Act 2007, the first appellate task was to decide whether the Upper Tribunal had erred under the law applicable when it made its decision. New Part 5A of the Nationality, Immigration and Asylum Act 2002 and the 2014 Rules were therefore irrelevant to that initial question. Once the decision was set aside, however, the tribunal remaking it had to apply the law then in force.

3. Following MF(Nigeria) v SSHD [2014] 1 WLR 544, the 2012 Rules formed a complete code. Rule 398 had to be construed by its ordinary language. It required consideration of the sentence for one offence and did not permit separate historic sentences to be aggregated to reach the four-year threshold. The appellant therefore fell within Rule 398(b).

4. For Rule 399(b), the “immigration decision” was the Secretary of State’s original deportation decision, not the Upper Tribunal’s later decision. The appellant could not meet the 15-year lawful-residence condition. Under Rule 399A(b), age was also to be assessed at the date of the original decision.

5. The Upper Tribunal’s error on “no ties” was material. The enquiry concerned the appellant’s own continuing connection with Uganda and whether that connection would provide support on return. It required a rounded assessment. The tribunal instead treated possible ties of his mother and possible extended family as determinative, without assessing his own circumstances. Applying Ogundimu (Article 8 – new rules)(Nigeria) v SSHD [2013] UKUT 00060 (IAC), that was an error of law.

6. The Article 3 conclusion disclosed no error of law. The Upper Tribunal was entitled to regard the expert evidence that the appellant might disappear into a Ugandan “safe house” and be tortured as speculative. The evidence did not establish a real risk of treatment contrary to Article 3.

Sir Stanley Burnton added that, ordinarily, the public interest in deporting an offender whose crimes were this serious would be very strong even where there were no ties to the country of nationality. Remittal was appropriate because of the lapse of time and the intervening legal changes.

• Court of Appeal (Civil Division). Allowed the Article 8 appeal, dismissed the Article 3 appeal, set aside the Upper Tribunal’s Article 8 decision, and remitted the matter: [2014] EWCA Civ 1292.
• Upper Tribunal (Immigration and Asylum Chamber). On 2 May 2013, in IA097392008, remade the decision after setting aside the earlier tribunal determination and dismissed the appellant’s appeals under Articles 3 and 8.
• Asylum and Immigration Tribunal. On 1 July 2009, allowed the appellant’s appeal on Article 8 and immigration grounds.