Indefinite Leave to Remain: Proportionality and Necessity

The recent case of D v The Secretary of State for the Home Department [2012] EWCA Civ 39 demonstrates the balancing act of proportionality and necessity that is undertaken when considering indefinite leave to remain applications. The Home Secretary will consider the maintenance of proper immigration control against the rights of the individual. Factors such as the individual’s criminal record will be considered when striking this balance.

The Facts

D was born in October 1990 in Ghana, and is now aged 21. He arrived in the UK at the age of six around May 1997, in the care of his father and together with a number of his siblings. Since his arrival, D has not left the UK’s jurisdiction.

In 2001, when D was 11, his father effectively abandoned him and his siblings when he failed to return from a visit to Ghana. His school was alerted to the circumstances and D and his siblings were all received into accommodation for the remainder of their minority.

D has been convicted before the criminal courts several times:

• In September 2004, he was convicted of handling stolen goods;
• In 2007 and twice in 2008, he was convicted for possessing an offensive weapon;
• In 2009, he came before the court for breach of a previous order;
• Again in 2009, he received a 16 week suspended prison sentence and a 12 month community order for possession of an offensive weapon; and
• In 2010 he came before the court for failing to comply with the community order.

In 2008, when approaching his 18^th birthday, D was advised by a social worker to apply to regularise his immigration status. On 12th September 2008 he made an application for indefinite leave to remain.

On 27th January 2010, the Secretary of State refused his application. Why? It was determined that D had no entitlement to be in this jurisdiction, and it was considered that his continued presence here was not beneficial to the public good in light of his criminal conduct. D was informed that the decision had been taken to remove him to Ghana. Accordingly, he exercised his statutory right of appeal against this determination.

Appeal to the First Tier Tribunal

The appeal to the First Tier Tribunal was on the basis that the determination of the Home Secretary was in breach of his right to “family and private life” under Article 8 of the European Convention of Human Rights (ECHR).

The Immigration Judge took a considerable amount of time considering whether or not D had established “family life” in the UK. It was concluded that the evidence did not establish family life. No further consideration was given to this issue by the Court of Appeal.

In relation to “private life”, however, the Home Secretary had conceded that the circumstances of D’s life in the UK were sufficient to establish this. This concession was accepted by the Immigration Judge. Therefore, what was the question before the First Tier Tribunal was about the necessity and proportionality of the Home Secretary’s intended removal of D to Ghana.

The justification by the Home Secretary for the decision was that D had no lawful right to be in the UK (maintenance of proper immigration control) and he had a number of criminal convictions (the prevention of crime).

The Immigration Judge referred to the case of Maslov v Austria [2008] ECHR 546, which states that:

…where the person to be expelled is a young adult who has not yet founded a family of his own, the relevant criteria are:

• The nature and seriousness of the offence committed by the applicant;
• The length of the applicant’s stay in the country from which he or she is to be expelled;
• The time elapsed since the offence was committed and the applicant’s conduct during that period;
• The solidity of social, cultural and family ties with the host country and with the country of destination.

The Immigration Judge looked at the circumstances of D’s situation, reviewing the details of his behaviour. He came to the conclusion that he was not persuaded that D was “no longer at risk of further offending” because D’s offences “taken together represent a pattern of ongoing and escalating offending”. It was found that D would not be on his own if removed to Ghana (as D had claimed), and that D had attempted to downplay his contacts in Ghana in order to strengthen his application for indefinite leave to remain.

The Immigration Judge referred to the decision of JO (Uganda) and JT (Ivory Coast) v The Secretary of State for the Home Department [2010] EWCA Civ 10, where it was stated that:

The maintenance of effective immigration control is an important matter, but the protection of society against serious crime is even more important and can properly be given correspondingly greater weight in the balancing exercise.

The Immigration Judge therefore concluded that the decision to remove D was “necessary in maintaining effective immigration control and in order to prevent crime and that it was proportionate”.

Appeal to the Upper Tribunal

D sought permission to appeal the First Tier Tribunal’s determination. This was granted on 27th August 2010, and the question for consideration was posed as follows: “He is a criminal, but should he be regarded as a British criminal or a foreign one?”

The Upper Tribunal regarded the Immigration Tribunal’s decision as being ‘unimpeachable’:

The Immigration Judge in effect found that the Appellant could be regarded as Ghanaian, there is no other conclusion that can be reached from the reading of the decision and the reasoning applied.

Appeal to the Court of Appeal

On 12 December 2010, D applied to the Upper Tribunal for permission to appeal to the Court of Appeal on two grounds:

1. An error in the assessment of the issue of family life; and
2. The immigration judge failed to have proper regard to the level of seriousness of D’s offending.

The Upper Tribunal refused permission to appeal, but the application for permission was renewed on paper before the Court of Appeal and permission was granted in relation to ground 2.

D’s case before the Court was three-fold:

1. The case of Maslov v Austria establishes a test whereby the decision maker must find “very serious reasons” to justify the removal of an individual to whom the test relates;
2. Although it cannot be said that D has been present in the UK ‘lawfully’ in immigration terms, the “specific facts” of D’s case mean that Maslov nevertheless applies to his case; and
3. If the “very special reasons test” does apply, then the Immigration Judge failed to apply it, thereby falling into error as a matter of law.

Several examples were given by D’s representatives of families that were “living life in surreptitious, devious and straitened circumstances as a result of their unlawful immigration status”. A contrast was drawn between these families and D, who had been abandoned in the UK, apparently not understanding that he was not permitted to remain here and had been cared for by the State for much of his childhood.

The Court held that the fact that D was looked after by social services created no additional factor that should stand separately and alone when considering the balancing act aimed at measuring proportionality and necessity.

The Court held that:

…there was no room for manoeuvre to allow the very specific facts of the case to alter what is a strict and plainly expressed legal structure. Either an individual’s presence is ‘lawful’ or ‘unlawful’ in immigration terms…D cannot claim ‘lawful’ status. Therefore, as a matter of law, Maslov does not apply to his case.

D’s appeal was therefore dismissed and it was held that the Home Secretary’s decision was proportionate and necessary.

Conclusion / Lesson Learned

This case demonstrates what considerations the Home Secretary will take into account when determining whether to grant indefinite leave to remain. It highlights the balancing act that is drawn between maintaining proper immigration control, the prevention of crime, and the rights of migrants to a family and private life.

The balancing act between proportionality and necessity is something that all applicants for indefinite leave to remain should bear in mind when making their application.