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Chege ("is a persistent offender") Kenya
Factual and Procedural Background
This appeal concerns the dismissal by First-tier Tribunal Judge Whalan of the Appellant's challenge to a deportation order issued by the Respondent under the Immigration Act 1971, on grounds that deportation was conducive to the public good. The deportation order followed the Appellant's conviction for affray in April 2013, for which he received a nine-month custodial sentence. The Appellant's case had previously been considered by the Upper Tribunal, which set aside an earlier First-tier Tribunal decision allowing the Appellant's appeal and remitted the matter for re-hearing. The central issue on re-hearing was whether the Appellant qualified as a "persistent offender" and thus a "foreign criminal" under Part 5A of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014. The Appellant had a long history of varied criminal convictions over a period of approximately 15 years, none involving a custodial sentence of 12 months or more. The First-tier Tribunal found the Appellant to be a persistent offender and dismissed his appeal against deportation. This decision was then appealed to the Upper Tribunal, which is the subject of this opinion.
Legal Issues Presented
- Whether the Appellant qualifies as a "persistent offender" and therefore as a "foreign criminal" under s.117D(2)(c) of the Nationality, Immigration and Asylum Act 2002.
- The proper interpretation of the phrase "persistent offender" in the context of deportation under Part 5A of the 2002 Act and the Immigration Rules.
- Whether the First-tier Tribunal erred in its assessment of the proportionality of deportation, particularly in relation to the Appellant's health and human rights under Article 8 of the European Convention on Human Rights.
Arguments of the Parties
Appellant's Arguments
- The Appellant contended that he was not a "persistent offender" as he had committed no offences since being released on immigration bail in mid-2013, and thus was not continuing to offend as required by the natural meaning of "persistent."
- He argued that the First-tier Tribunal erred by effectively placing the onus on him to prove he was no longer persistent and by equating persistence with mere repetition of offences, potentially setting too low a threshold.
- The Appellant challenged the proportionality assessment of deportation, asserting that the Tribunal understated the risks to his health, including his HIV-positive status and alleged suicide risk, and failed to properly balance public and private interests under Article 8.
Respondent's Arguments
- The Respondent maintained that "persistent offender" is a status that, once acquired through repeated offending over a sufficiently long period, is not lost simply because the individual has not offended recently.
- They argued that this interpretation aligns with the policy objectives of deterrence and public protection underpinning deportation of foreign criminals.
- The Respondent submitted that the First-tier Tribunal correctly applied the law and gave adequate reasons for its proportionality assessment, including consideration of the Appellant's health claims.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chege (No.1) [2015] UKUT 165 (IAC) | Guidance on the approach to Part 5A of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014. | Used as authoritative guidance to frame the legal context and confirm the need to reassess the Appellant's status as a persistent offender. |
| Bah (EO (Turkey) - liability to deport) [2012] UKUT 196 (IAC) | Discretionary nature of deportation liability under s.3(5)(a) of the Immigration Act 1971 and its non-appealability. | Supported the principle that deportation liability is discretionary and not subject to appeal. |
| Mahad (Ethiopia) v Entry Clearance Officer [2009] UKSC 16 | Interpretation of Immigration Rules and their construction with regard to statutory language. | Applied to support a sensible and natural meaning approach to interpreting "particular disregard for the law" in the Immigration Rules. |
| Secretary of State for the Home Department v Bennett (DA/01409/2014) (unreported) | Limits on Tribunal's ability to substitute its view for the Secretary of State's assessment of persistent offender status. | Endorsed the principle that if the Secretary of State has not formed the view that a person is a persistent offender showing particular disregard for the law, the Tribunal cannot impose that view. |
| R v L [2012] EWCA Crim 1336 | Definition and interpretation of "persistent offender" in sentencing youth offenders. | Referenced to illustrate that persistent offending requires repetition over time but the context differs from deportation law, limiting direct applicability. |
| In Re Arctic Engineering Ltd [1986] 1 WLR 686 | Meaning of "persistently in default" in company law context. | Referenced to note that "persistently" connotes continuance or repetition but offers limited assistance in immigration context. |
| Akhula (health claim: ECHR Article 8) Nigeria [2013] UKUT 400 (IAC) | Assessment of health-related claims under Article 8 in deportation appeals. | Referenced to support the sufficiency of the Tribunal's reasoning on health claims and proportionality. |
Court's Reasoning and Analysis
The Court began by considering the statutory definition of "foreign criminal" under s.117D(2) of the Nationality, Immigration and Asylum Act 2002, which includes those sentenced to 12 months or more, those convicted of offences causing serious harm, and persistent offenders. The Appellant did not meet the first two limbs but was found to be a persistent offender.
The Court analysed the phrase "persistent offender," noting the absence of a statutory definition and the need to interpret it in line with natural language and the policy objectives of the legislation. Persistence requires ongoing or repeated offending over a sufficiently long period, but need not be continuous or without interruption. The Court rejected the Respondent's submission that persistent offender status, once acquired, is permanent and cannot be lost, as inconsistent with the natural meaning of the present tense "is a persistent offender."
The Court held that a persistent offender is one who "keeps on breaking the law," considering the overall pattern, frequency, nature, and number of offences, as well as any relevant contextual factors such as periods of rehabilitation or reasons for hiatus in offending.
The Court accepted that the Secretary of State's assessment that the Appellant was a persistent offender is a factor of great weight but not binding; the Tribunal must make its own holistic assessment. The First-tier Tribunal's finding that the Appellant remained a persistent offender despite a recent break in offending was supported by his extensive and varied criminal history over 15 years, including multiple custodial sentences.
Regarding proportionality and Article 8 considerations, the Court found no error in the Tribunal's assessment. The Tribunal accepted the medical evidence but concluded that the Appellant had not demonstrated "very compelling circumstances" or "exceptional circumstances" to outweigh the public interest in deportation. The alleged suicide risk was not substantiated by evidence. The Court found the Tribunal's reasoning legally sufficient and not irrational.
Finally, the Court noted that even if the Appellant were not a foreign criminal under s.117C, his offending history would remain a relevant factor under s.117B, and the outcome on proportionality would be the same.
Holding and Implications
The Upper Tribunal DISMISSED the Appellant's appeal against deportation.
The Court upheld the First-tier Tribunal's finding that the Appellant qualifies as a persistent offender under the Immigration Rules and the 2002 Act. It confirmed that the natural meaning of "persistent offender" requires repeated offending over time but does not necessitate uninterrupted continuation of offences up to the date of decision. The decision affirms the discretionary deportation regime's policy aims of deterrence and public protection.
No new precedent was established beyond clarifying the interpretation of "persistent offender" in this statutory context. The direct effect is that the Appellant's deportation order stands, and no anonymity direction was made.
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