Akinyemi v The Secretary of State for the Home Department

A person born in the United Kingdom who never required leave and was legally irremovable is not present “unlawfully” for the purpose of section 117B(4) of the Nationality, Immigration and Asylum Act 2002. Private life established during that residence cannot therefore be assigned little weight under that provision.

Whether immigration status is “precarious” depends on whether the person understood, or should have understood, that residence would be comparatively short or liable to termination. Deportation proportionality remains highly fact-sensitive. Lifelong residence and a lack of connections with the destination country carry substantial weight, but neither is conclusive where the offending is serious and persistent.

The appellant was a Nigerian national born in the United Kingdom who had never left the country. For 19 years he had an absolute entitlement to register as a British citizen, but no application was made. Following serious and persistent offending, including drug-supply offences, the Secretary of State ordered his deportation to Nigeria.

The First-tier Tribunal allowed his appeal under article 8 of the European Convention on Human Rights. The Upper Tribunal set that decision aside and dismissed the appeal, treating his lifelong residence as unlawful and assigning little weight to the private life established during it.

The appellant appealed on the grounds that the Upper Tribunal had mischaracterised his residence and that deportation was necessarily disproportionate. The central questions were whether section 117B(4) of the Nationality, Immigration and Asylum Act 2002 applied and whether only one proportionality outcome was legally possible.

1. Appeal allowed on the first ground and remitted. The Upper Tribunal materially misdirected itself by treating the appellant’s lifelong presence as unlawful and consequently assigning little weight to his private life. The matter required a de novo rehearing before a differently constituted Upper Tribunal.

2. For section 117B(4) of the Nationality, Immigration and Asylum Act 2002, presence is “unlawful” where it breaches United Kingdom law. The expression does not merely describe the absence of a positively granted right of residence. A person born here who never required leave, was legally irremovable and for much of the period had an absolute entitlement to British citizenship was not unlawfully present. The policy underlying section 117B(4) concerns private life formed without a legitimate expectation of continued residence; it did not fit these circumstances.

3. The later introduction of a good-character requirement for citizenship registration did not clearly render the appellant’s presence unlawful. In any event, section 117B(4) could not diminish the weight of private life established during the earlier period when his presence was not unlawful.

4. The misdirection was material. Lifelong residence, practical settlement in the United Kingdom and the absence of significant social or cultural links with Nigeria were central to a particularly sensitive proportionality assessment. It was unsafe to conclude that the Upper Tribunal would necessarily have reached the same result under the correct direction.

5. Section 117B(5) did not make the appellant’s earlier status precarious. Status is precarious when the person understands, or should understand, that residence will be comparatively short or liable to termination. That description plainly did not apply before the statutory change in 2006.

6. The second ground was rejected. Lifelong residence and lack of connections with the destination country are powerful considerations, but they are not trump cards. Serious and persistent offending, an express warning about deportation and the absence of demonstrated very serious obstacles to integration in Nigeria meant that the proportionality balance remained open. The appellate court had not heard the primary evidence and could not determine that only one outcome was possible.

1. Court of Appeal (Civil Division): Allowed the appeal on the ground that the Upper Tribunal had materially misdirected itself about unlawful residence. The case was remitted for a de novo rehearing before a differently constituted Upper Tribunal.

2. Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s decision and, after remaking the decision, dismissed the appeal against deportation.

3. First-tier Tribunal: Allowed the appeal against the deportation order on article 8 grounds.