DM (Zimbabwe) v The Secretary of State for the Home Department

In an Article 8 deportation assessment, the factors identified for young adult offenders in Maslov remain relevant. Their weight is diminished where the person is unlawfully present in the host country. The especially strong protection requiring very serious reasons for expulsion applies to a settled migrant who has lawfully spent most or all of childhood and youth in the host country. A tribunal need not expressly cite Maslov or Üner if it has considered all relevant circumstances. The Court of Appeal dismissed the appeal.

The appellant, a Zimbabwean national who came to the United Kingdom aged nine, remained after his leave expired and committed numerous offences between 2007 and 2011. The Secretary of State made a deportation decision under the UK Borders Act 2007. The First-tier Tribunal dismissed his human-rights appeal, and the Upper Tribunal dismissed his further appeal in a determination promulgated on 29 April 2013.

The appellant appealed to the Court of Appeal, arguing that the tribunals had misapplied the Strasbourg principles in Üner v The Netherlands and Maslov v Austria, and seeking remittal. The central issue was whether the Maslov principles applied with full force to a foreign criminal whose presence in the host country was unlawful.

1. Appeal dismissed. The First-tier Tribunal had considered all relevant matters under ECHR Article 8. Its failure expressly to cite Üner v The Netherlands Application 46410/99, 18th October 2006 or Maslov v Austria Application 1638/03, 23rd June 2008 was not material.
2. Üner identifies relevant Article 8 factors, including the nature and seriousness of the offence, length of residence, time elapsed and conduct since the offence, nationalities and family circumstances. Maslov identifies, for a young adult without a family of his own, the nature and seriousness of the offending, length of residence, subsequent conduct, and the solidity of social, cultural and family ties.
3. The Court accepted that the criteria in paragraphs 71 to 74 of Maslov remain relevant in deportation cases, but their weight is diminished where the person is unlawfully present in the host country. The principle in paragraph 75, requiring very serious reasons to expel a settled migrant who has lawfully spent all or most of childhood and youth in the host country, does not apply to an unlawfully present criminal offender.
4. The Court preferred the reasoning in D v Secretary of State for the Home Department [2012] EWCA Civ 39 to the contrary reasoning in JO (Uganda) v Secretary of State for the Home Department [2010] EWCA Civ 10.
5. By way of alternative observation, remittal could not have assisted the appellant. The Upper Tribunal would have had to apply the current Immigration Rules, paragraphs 398 to 399A, and sections 117A to 117D of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014.

• Court of Appeal (Civil Division): appeal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s further appeal; determination promulgated on 29 April 2013.
• First-tier Tribunal: dismissed the appellant’s appeal against the deportation decision. An earlier asylum and human-rights appeal had also failed on 24 May 2011.