Abdirashid Abdirahman Tirabi v The Secretary of State for the Home Department

For the deportation exceptions in paragraph 399A of the Immigration Rules and section 117C(4) of the Nationality, Immigration and Asylum Act 2002, “lawfully resident” is to be construed by analogy with paragraph 276A. A period of temporary admission followed by a grant of leave counts as lawful residence. The retrospective invalidation of leave under section 5(1) of the Immigration Act 1971 must be ignored for that calculation.

Social and cultural integration cannot ordinarily be negated simply by the commission of the offence that gives rise to deportation. The paragraph 399A exception is cumulative. A person who has not shown very significant obstacles to integration in the receiving country cannot rely on it, despite satisfying the residence and integration requirements.

The appellant, a Somali national who arrived in the United Kingdom as a child, appealed against the First-tier Tribunal’s dismissal of his appeal against a deportation order made after his conviction for a drugs offence and sentence of 12 months’ imprisonment.

The First-tier Tribunal rejected his article 3 claim and found that he did not meet any of the three requirements in paragraph 399A of the Immigration Rules and section 117C(4) of the Nationality, Immigration and Asylum Act 2002. The Upper Tribunal considered whether he had been lawfully resident for most of his life, was socially and culturally integrated in the United Kingdom, and would face very significant obstacles to integration in Somalia.

1. Appeal dismissed. The First-tier Tribunal erred in its conclusions on lawful residence and social and cultural integration, but its dismissal of the appeal was correct because the appellant failed to establish the third cumulative requirement for the statutory and Rules exception to deportation.

2. Following SC (Jamaica) [2017] EWCA Civ 2112, lawful residence for paragraph 399A and section 117C(4) is assessed by analogy with paragraph 276A of the Immigration Rules. Temporary admission followed by a grant of leave therefore counts. Section 5(1) of the Immigration Act 1971, which invalidates leave on the making of a deportation order, must be ignored for that limited calculation. Otherwise the outcome would depend arbitrarily on when the order happened to be signed.

3. The appellant had consequently been lawfully resident for most of his life. He was also socially and culturally integrated in the United Kingdom. His offence, even coupled with an assessment of continuing risk, could not by itself demonstrate a lack of integration in a deportation case. His childhood residence, education, friendships and family connections supported the contrary conclusion.

4. The appellant nevertheless did not prove very significant obstacles to integration in Somalia. Risk of ill-treatment under article 3 and obstacles to integration are distinct questions, but factual findings relevant to one may also inform the other. The First-tier Tribunal was entitled to reject material parts of his account and to find that his education, work experience, ability to form relationships, possible family support and remaining connections to Somalia meant that the threshold was not met.

5. All three requirements were necessary. Since the third failed, the exception did not apply. The public interest in deportation remained, including because the appellant continued to pose a risk to the public. The Upper Tribunal declined to set aside the First-tier Tribunal’s determination.

• Upper Tribunal (Immigration and Asylum Chamber): The appellant’s appeal against the First-tier Tribunal decision was dismissed. Although two findings were erroneous, the determination was not set aside because the appellant failed to establish very significant obstacles to integration abroad.
• First-tier Tribunal: Judge J C Grant-Hutchinson dismissed the appeal against the deportation order.