Binbuga (Turkey) v Secretary of State for the Home Department

A persistent offender is a person whose entire offending history shows repeated criminal conduct over a sufficiently long period to indicate that the person keeps breaking the law. A temporary cessation, particularly during imprisonment, licence or threatened deportation, does not necessarily end that status.

Social and cultural integration requires incorporation into the lawful social structure of the United Kingdom and acceptance of its core values, including the rule of law. Membership of a pro-criminal gang therefore counts against integration.

A foreign criminal who cannot satisfy a statutory exception must establish very compelling circumstances beyond a near miss. All relevant matters must be assessed collectively. Rehabilitation and ordinary family ties will generally carry little weight against the strong public interest in deportation.

The appellant, a Turkish citizen who had lived in the United Kingdom since the age of nine, challenged a decision maintaining his deportation following repeated offending. The First-tier Tribunal allowed his appeal, holding alternatively that he was not a foreign criminal, that Exception 1 applied, and that compelling circumstances outweighed the public interest in deportation.

The Upper Tribunal found errors of law, remade the decision and dismissed the appeal. The appellant contended that the Upper Tribunal had merely substituted its assessment of the facts.

The central issues were whether the appellant remained a persistent offender under section 117D(2) of the Nationality, Immigration and Asylum Act 2002, whether he was socially and culturally integrated and faced very significant obstacles to integration in Turkey, and whether very compelling circumstances outweighed the public interest in deportation.

1. Appeal dismissed. The Upper Tribunal was entitled to find material errors of law, remake the First-tier Tribunal’s decision and conclude that the appellant was a foreign criminal, could not rely on Exception 1, and had not established very compelling circumstances.

2. A persistent offender is someone who keeps breaking the law. The decision-maker must assess the whole pattern of offending up to the decision date, including its frequency, nature, number, duration and surrounding circumstances. A person may remain a persistent offender despite not having offended recently. Rehabilitation may end that status only where the overall history, including an established and significant period of rehabilitation, supports that conclusion.

   The First-tier Tribunal had focused unduly on the present tense in section 117D(2) and on the absence of offences after October 2013. It failed adequately to account for the appellant’s imprisonment, licence, threatened deportation and resumption of offending after an earlier gap. The Upper Tribunal was entitled to classify him as a persistent offender.

3. Social integration means incorporation into the lawful social structure of the United Kingdom. Cultural integration involves acceptance of the country’s core values, ideas, customs and social behaviour, including the rule of law. Association with a pro-criminal gang is manifestly anti-social and demonstrates disregard for the rule of law. It therefore counts against, rather than in favour of, social and cultural integration. The appellant did not satisfy section 117C(4)(b).

4. The description “home-grown criminal” is unhelpful and liable to mislead. Part 5A of the Nationality, Immigration and Asylum Act 2002 requires the structured questions in section 117C(4) to be answered. Length of residence is primarily assessed relative to the person’s life under paragraph (a); social and cultural integration under paragraph (b); and obstacles to integration in the destination country under paragraph (c). Caution is required when using authorities predating that statutory structure. The appellant did not establish very significant obstacles under paragraph (c).

5. A medium offender outside Exceptions 1 and 2 must demonstrate very compelling circumstances beyond a near miss. All relied-on circumstances must be considered collectively, but only rare cases will outweigh the strong public interest in deportation. Rehabilitation ordinarily attracts little or no material weight because obeying the law is expected. Lengthy residence, ordinary family affection and the findings displaced on integration did not meet the statutory threshold.

Floyd LJ agreed with Hamblen LJ.

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld the Upper Tribunal’s remade decision: [2019] EWCA Civ 551.
2. Upper Tribunal (Immigration and Asylum Chamber): Found errors of law in the First-tier Tribunal’s decision, remade it and dismissed the appeal against deportation.
3. First-tier Tribunal: Allowed the appeal on the alternative grounds that the appellant was not a foreign criminal, satisfied Exception 1, and had compelling circumstances outweighing deportation.