CI (Nigeria) v The Secretary of State for the Home Department

For Exception 1 to foreign-criminal deportation, lawful residence ordinarily depends on the person’s legal status at the relevant time. Tolerated presence, a pending application or a concessionary policy does not suffice, subject to the special position of a successful asylum-seeker.

Social and cultural integration requires a broad, fact-sensitive assessment of the person’s affiliations and identity. Offending and imprisonment matter only through their actual effect on legitimate ties; they do not automatically sever integration.

When assessing very compelling circumstances, features within the statutory exceptions must be considered collectively with other relevant matters. The principles governing settled migrants remain relevant without a rigid minimum period of lawful childhood residence, although the duration and lawfulness of residence affect weight.

CI, a Nigerian national, entered the United Kingdom aged 15 months and remained throughout his childhood. He later obtained indefinite leave to remain but committed offences resulting in sentences exceeding 12 months. The Secretary of State decided under section 32(5) of the UK Borders Act 2007 to deport him.

The First-tier Tribunal allowed his appeal. The Upper Tribunal reversed that decision, but the Court of Appeal set the reversal aside and remitted the case. Following a rehearing, the Upper Tribunal again dismissed CI’s appeal.

The present appeal concerned the three requirements of Exception 1 in section 117C(4) of the Nationality, Immigration and Asylum Act 2002: lawful residence for most of CI’s life, social and cultural integration in the United Kingdom, and very significant obstacles to integration in Nigeria. It also concerned whether, despite Exception 1 being unavailable, very compelling circumstances outweighed the public interest in deportation.

1. Appeal allowed. The Upper Tribunal’s decision was set aside and the case remitted for a further rehearing. Leggatt LJ delivered the judgment, with which Hickinbottom LJ and the Senior President of Tribunals agreed.

2. Part 5A of the Nationality, Immigration and Asylum Act 2002 directly governs an article 8 challenge to foreign-criminal deportation. The similar provisions in the Immigration Rules ordinarily add nothing to the tribunal’s analysis. If the statutory scheme determines that the public interest requires deportation, no separate proportionality assessment remains.

3. CI had not been lawfully resident for most of his life. Lawful residence ordinarily turns on legal status. An overstayer who has no right to remain and is liable to removal is not lawfully resident merely because removal is not enforced, an application is pending or a concessionary policy makes a later grant likely. The position of a successful asylum-seeker is distinct because recognition acknowledges a pre-existing status. The first requirement of Exception 1 therefore failed.

4. The Upper Tribunal applied the wrong approach to social and cultural integration. Offending and imprisonment may weaken integration, but their effect depends on the nature and frequency of the offending, imprisonment, prior depth of integration, relationships, affiliations and present circumstances. They do not, by their nature, sever ties or require the individual to prove that integration was later reacquired. Nor may seriousness of offending be counted again under integration merely because it strengthens the public interest in deportation.

5. The finding that the obstacles to integration in Nigeria were not very significant could not stand. The Upper Tribunal lacked an evidential basis for assuming knowledge of Nigerian culture, wrongly placed the evidential burden on CI and failed to address uncontradicted expert evidence about the likely psychiatric consequences of deportation and his ability to obtain treatment, work and accommodation.

6. Features within Exceptions 1 and 2 may contribute to very compelling circumstances even where an exception is not fully satisfied. All relevant matters must be evaluated collectively and must amount to substantially more than a near miss.

7. The Upper Tribunal also erred in treating the principles in Maslov as inapplicable merely because CI had not been settled for most of his childhood. Those principles guide the proportionality balance rather than establish a bright-line rule. The tribunal’s errors affected its assessment of CI’s lifelong British identity, the absence of Nigerian ties, his mental health, youth at the time of offending, abusive upbringing and prospects of rehabilitation. A lawful tribunal could therefore find very compelling circumstances outweighing deportation.

• Court of Appeal (Civil Division): By [2019] EWCA Civ 2027, allowed CI’s appeal, set aside the Upper Tribunal’s decision promulgated on 1 August 2018 and remitted the case for a further rehearing.
• Upper Tribunal (Immigration and Asylum Chamber): Following a rehearing, dismissed CI’s appeal against deportation in a decision promulgated on 1 August 2018.
• Court of Appeal (Civil Division): On 28 June 2017, set aside an earlier Upper Tribunal decision and remitted the case for rehearing. No citation is stated.
• Upper Tribunal (Immigration and Asylum Chamber): On 8 October 2015, reversed the First-tier Tribunal’s decision.
• First-tier Tribunal (Immigration and Asylum Chamber): Allowed CI’s appeal against the Secretary of State’s deportation decision.