George Joseph Chege v The Secretary of State for the Home Department

A person is a persistent offender for the purposes of Nationality, Immigration and Asylum Act 2002 section 117D(2)(c) and paragraph 398(c) of the Immigration Rules if, viewed holistically, that person keeps on breaking the law. The issue is one of mixed fact and law and must be determined at the date of the Tribunal hearing.

Persistent offending is not a permanent status, nor must offending continue up to the decision date. The Tribunal must assess the entire offending history, including its pattern, frequency, nature, number, duration, explanations for gaps, and any genuine rehabilitation. Repetition alone is insufficient; the facts must show a history of repeated criminal conduct over a sufficiently long period to justify the description.

George Joseph Chege appealed against a First-tier Tribunal decision dismissing his appeal against a deportation order made because his deportation was conducive to the public good. He had numerous convictions between 1997 and 2013, including offences of violence, public order, drugs, motoring and breaches of court orders. No sentence exceeded 12 months.

Following an earlier remittal in the same proceedings, the First-tier Tribunal found that he was a persistent offender and therefore a foreign criminal under Nationality, Immigration and Asylum Act 2002 Part 5A. It also rejected his Article 8 health and proportionality case. The central issue was whether a period without offending meant that he was no longer a persistent offender.

1. Appeal dismissed. The First-tier Tribunal made no error of law. Its determination that the appellant was a persistent offender, and that deportation was proportionate, stood.

2. The question whether a person is a persistent offender under section 117D(2)(c) is a mixed question of fact and law, determined by the Tribunal at the hearing date. The phrase has the same meaning as in paragraph 398(c) of the Immigration Rules, because Parliament intended Part 5A and the Rules to operate consistently.

3. A persistent offender is someone who keeps on breaking the law. The status is not permanent once acquired, but neither does a person cease to be persistent merely because there has been a break in offending. The decision-maker must consider the whole history to the hearing date. Relevant matters include the overall pattern, frequency, number and nature of offences, the time over which they occurred, and explanations for gaps, including custody, incentives not to offend, or rehabilitation.

4. Repeated offending is necessary but not sufficient. The offences need not be identical, but must be sequential rather than part of a single incident. There is no fixed numerical minimum. A substantial and established period of rehabilitation may mean that the person can no longer properly be described as someone who keeps offending.

5. The Tribunal was entitled, and was right, to find the appellant persistent. His long, varied and repeated offending history outweighed the recent period without convictions, particularly in the context of immigration bail and the impending deportation proceedings. Any contrary conclusion would have been perverse.

6. The First-tier Tribunal also gave adequate reasons for rejecting the Article 8 health case. It was entitled to find no very compelling or exceptional circumstances. In any event, a freestanding Article 8 assessment outside the foreign-criminal provisions would inevitably have produced the same result.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal and upheld the First-tier Tribunal’s determination.

• First-tier Tribunal: Judge Whalan dismissed the appeal against deportation on 22 July 2015.

• Earlier Upper Tribunal stage: A previous Upper Tribunal decision, [2015] UKUT 00165 (IAC), set aside an earlier First-tier Tribunal decision allowing the appeal and remitted the matter for rehearing.