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CI (Nigeria) v The Secretary of State for the Home Department
Factual and Procedural Background
The Appellant ("CI") is a Nigerian national who came to the United Kingdom at one year old and has lived there since. CI was severely abused by his mother during childhood, taken into care at 15, and later committed criminal offences resulting in detention exceeding 12 months. This led to a deportation order made by the Secretary of State in July 2014. CI challenged the deportation on the ground that it would breach his right to respect for private life under article 8 of the European Convention on Human Rights. The case progressed through various tribunals, with the Upper Tribunal dismissing CI's appeal in August 2018. CI obtained permission to appeal to the court from that decision.
CI's immigration history includes entry to the UK as a visitor with his family, an unsuccessful asylum claim by his mother, and a prolonged delay before the family was granted indefinite leave to remain in 2010. CI's personal history involves abuse, periods in foster care, academic achievements, criminal convictions, mental health issues, and a British citizen son born in 2017.
Procedurally, after the Secretary of State issued a deportation order under section 32(5) of the UK Borders Act 2007 due to CI's criminal convictions, CI appealed through the First-tier and Upper Tribunals. The Court of Appeal remitted the case to the Upper Tribunal for re-hearing, which again dismissed the appeal. This further appeal challenges that decision.
Legal Issues Presented
- Whether CI had been lawfully resident in the UK for most of his life as required by Exception 1 of section 117C(4) of the Nationality, Immigration and Asylum Act 2002.
- Whether CI was socially and culturally integrated in the UK, considering the impact of his criminal offending and imprisonment.
- Whether there would be very significant obstacles to CI's integration into Nigeria.
- Whether there exist very compelling circumstances, over and above those described in Exception 1, that outweigh the public interest in deportation.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| NF (Ghana) v Secretary of State for the Home Department [2008] EWCA Civ 906 | Interpreting Deportation Policy 5/96 and the presumption in favour of indefinite leave to remain for children with continuous UK residence of seven years or more. | Confirmed that CI’s case was not exceptional under the policy factors. |
| NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662 | Clarification of section 117C(3) of the 2002 Act to include a fallback protection for medium offenders based on very compelling circumstances. | Applied to interpret statutory provisions governing deportation of foreign criminals. |
| NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239 | Distinction between Immigration Rules and primary legislation (Part 5A of 2002 Act) in article 8 assessments. | Confirmed that Immigration Rules have no additional role beyond reflecting public interest in deportation decisions challenged under article 8. |
| Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58 | Legal binding effect of the public interest requirement to deport under section 117C. | Used to affirm that tribunals must give effect to statutory public interest conclusions. |
| Akinyemi v Secretary of State for the Home Department [2017] EWCA Civ 236 | Interpretation of "unlawful" presence and lawful residence in the UK for article 8 purposes. | Guided the court’s understanding that presence without removability is not unlawful; distinguished from overstayers like CI. |
| SC (Jamaica) v Secretary of State for the Home Department [2017] EWCA Civ 2112 | Definition of lawful residence including asylum seekers pending successful claims. | Applied to explain lawful residence periods and rejected extension to unsuccessful asylum claims or overstayers. |
| Jeunesse v The Netherlands (2014) 60 EHRR 17 | Distinction between tolerated unlawful presence and lawful residence for article 8 rights. | Supported the view that tolerated presence pending application does not create lawful residence. |
| R (ST) v Secretary of State for the Home Department [2012] UKSC 12 | Refugee status and lawful presence under domestic and international law. | Clarified that refugee recognition does not equate to lawful presence absent leave to remain. |
| Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813 | Definition of integration regarding ability to participate in society of proposed deportation country. | Referenced regarding the third limb of Exception 1 concerning obstacles to integration abroad. |
| Binbuga v Secretary of State for the Home Department [2019] EWCA Civ 551 | Criminal or gang involvement is not evidence of social and cultural integration. | Applied to reject criminal lifestyle as proof of integration. |
| AM (Somalia) v Secretary of State for the Home Department [2019] EWCA Civ 774 | Assessment of social and cultural integration considering criminality and social isolation. | Used to illustrate that social isolation and lack of ties can justify finding lack of integration. |
| Mandalia v Secretary of State for the Home Department [2015] UKSC 59 | Public authority's duty to act consistently with adopted policies. | Referenced regarding consistency in immigration policy application. |
| Patel v Entry Clearance Officer (Mumbai) [2010] EWCA Civ 17 | Consideration of historic injustice in article 8 proportionality assessments. | Discussed but distinguished as not applicable to administrative delay in individual immigration cases. |
| R (Gurung) v Secretary of State for the Home Department [2013] EWCA Civ 8 | Historic injustice affecting proportionality in immigration decisions. | Referenced but distinguished similarly to Patel. |
| R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11 | Impact of unlawful residence and prospects of leave to remain on public interest in removal. | Applied to assess relevance of delay and lawful residence in article 8 balancing. |
| Maslov v Austria [2009] INLR 47 | Article 8 criteria for expulsion of foreign nationals with childhood ties to host country. | Considered for relevance to settled migrants; court held principles apply with weight depending on lawful residence. |
| DM (Zimbabwe) v Secretary of State for the Home Department [2015] EWCA Civ 1288 | Distinction between settled migrants and unlawfully present foreign criminals in article 8 assessments. | Applied as binding authority to limit Maslov principles to settled migrants with lawful residence. |
| JO (Uganda) v Secretary of State for the Home Department [2010] EWCA Civ 10 | Consideration of lawful residence and Maslov principles. | Discussed in relation to settled status and article 8 rights. |
| ED (Ghana) v Secretary of State for the Home Department [2012] EWCA Civ 39 | Strict application of lawful/unlawful presence in immigration law. | Followed in DM (Zimbabwe) to limit Maslov application. |
| R (Akpinar) v Upper Tribunal [2014] EWCA Civ 937 | Interpretation of Maslov judgment’s legal effect. | Used to explain that Maslov sets out balancing approach, not a bright-line legal rule. |
| Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 | Best interests of children in immigration decisions. | Applied to emphasize children should not be blamed for parental conduct or delays. |
Court's Reasoning and Analysis
The court undertook a detailed legal analysis of the statutory framework governing deportation of foreign criminals, particularly sections 32 and 33 of the UK Borders Act 2007 and Part 5A of the Nationality, Immigration and Asylum Act 2002. It examined the definitions and applications of "lawful residence" and the exceptions to deportation where article 8 rights may be engaged.
Regarding lawful residence, the court rejected CI’s argument that periods of overstaying or administrative delay should count as lawful residence, emphasizing that lawful residence requires a legal right to remain, not mere tolerance or temporary release. The court distinguished the position of successful asylum seekers, who are considered lawfully resident pending grant of leave, from overstayers whose claims were refused. The court concluded that CI had been lawfully resident only during his initial visa period and after being granted indefinite leave to remain in 2010, which did not amount to most of his life.
On social and cultural integration, the court recognized that the test is fact-sensitive and focused on whether CI had established a private life in the UK with substantial ties. While criminal offending and imprisonment can affect integration, the court found that the Upper Tribunal erred by assuming offending automatically severed CI’s integration without adequately assessing the actual impact on his social ties. The court noted that CI’s entire social and cultural identity was formed in the UK, and his situation was not comparable to cases of extreme social isolation.
Regarding obstacles to integration in Nigeria, the court found that the Upper Tribunal’s reasoning was flawed. There was no reasonable basis to infer CI’s familiarity with Nigerian culture given his early departure and abusive upbringing. The court also found the Upper Tribunal’s dismissal of expert evidence on the devastating impact of deportation on CI’s mental health was unjustified.
The court considered the application of the Maslov principles and concluded that while these apply primarily to settled migrants with lawful residence for most of their childhood, they are relevant in assessing proportionality for settled migrants like CI who have spent much of their life in the UK, even if not lawfully resident for most of their childhood.
Finally, the court addressed the delay in granting indefinite leave to remain, rejecting the characterization of this delay as a historic injustice but acknowledging that the delay should not increase the public interest in deportation or reduce the weight of CI’s private life, especially as he was a child not responsible for the delay.
Holding and Implications
The court concluded that although the Upper Tribunal was correct that CI had not been lawfully resident in the UK for most of his life, it made material legal errors in assessing social and cultural integration, obstacles to integration in Nigeria, and the application of very compelling circumstances under article 8.
Accordingly, the court held that the Upper Tribunal’s decision dismissing CI’s appeal against deportation was flawed and should be set aside. The case was remitted for a further re-hearing to properly apply the legal principles identified.
DISPOSED OF
The direct effect is that CI’s appeal succeeds and the matter requires reconsideration. No new precedent was established beyond the clarification and application of existing legal principles to the facts of this case.
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