The Secretary of State for the Home Department v Yan Bossadi

Meeting Immigration Rules paragraph 276ADE requires an applicant to satisfy its suitability requirements as well as the relevant private-life criterion. A foreign criminal subject to mandatory deportation cannot use the private-life rule to avoid the Rules governing deportation.

Under the former paragraph 276ADE(vi), the question whether an adult had no ties with the proposed country of return required a rounded assessment. It required consideration of whether familial ties could provide support on return, viewed objectively as well as subjectively, including whether dormant ties could be revived.

The Secretary of State made a deportation order against a national of the Democratic Republic of Congo who had received a 42-month sentence for robbery and related offences. The First-tier Tribunal allowed his appeal under Articles 3 and 8 of the European Convention on Human Rights and paragraph 276ADE of the Immigration Rules.

The Secretary of State appealed. The central issues were whether the First-tier Tribunal had adequately reasoned its findings on risk on return and Article 8, whether the claimant could meet paragraph 276ADE despite the suitability requirements, and how the former no-ties requirement should be assessed.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law and was set aside. The appeal was to be re-made by the Upper Tribunal.

2. The First-tier Tribunal gave no adequate reasons for finding that removal would breach Article 3. The claimant’s very young age on leaving the Democratic Republic of Congo did not, without explanation and supporting evidence, establish a present risk. Although P (DRC), R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3879 (Admin) had considered risk to criminal deportees, the First-tier Tribunal had to identify why that judgment should be followed on the evidence before it.

3. The First-tier Tribunal also misconstrued paragraph 276ADE. The suitability condition in paragraph 276ADE(i), read with Appendix FM, was an integral requirement. The claimant was subject to a deportation order and did not satisfy the relevant suitability provisions. He therefore could not meet paragraph 276ADE, notwithstanding the private-life criterion in paragraph 276ADE(vi).

4. Its Article 8 conclusion outside the Rules was consequentially flawed. Having accepted that deportation was conducive to the public good, the tribunal had to give adequate reasons why countervailing factors outweighed that public interest. A tentative finding that the claimant might not reoffend was insufficient.

5. Following YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 and Ogundimu (Article 8 – new rules) (Nigeria) v SSHD, the former no-ties test required a rounded assessment. The First-tier Tribunal had wrongly treated the evidence of an absence of effective family ties as conclusive. It had to assess objectively whether the claimant’s four uncles in the Democratic Republic of Congo could provide support, and whether any dormant ties could be pursued and strengthened.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal decision was set aside for material errors of law, and the decision was retained for re-making in the Upper Tribunal.
• First-tier Tribunal: In a determination dated 24 June 2014, the tribunal allowed the claimant’s appeal under Articles 3 and 8 of the European Convention on Human Rights and paragraph 276ADE of the Immigration Rules.