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Court of Appeal gives guidance on meaning of ‘unlawful residence’
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The case of Akinyemi v SSHD  EWCA Civ 236 concerns the deportation of a man born and raised in the United Kingdom, a country he has never left. It provides valuable guidance on the meaning of the word ‘unlawful’ within the context of deportation provisions introduced by the Immigration Act 2014 and shows just how far the law has moved in this area.
Remi Akinyemi is a man for whom one struggles to feel any great sympathy. Over the course of a prolific criminal career he accumulated 20 convictions and was found guilty of, amongst other offences, causing death by dangerous driving, possession of heroin with intent to supply, and of robbing at knifepoint.
Contrary to his own belief and that previously held by his parents, Mr. Akinyemi, though born in London in the summer of 1983, is not British.
The Secretary of State made an order on 13 February 2014 that Mr. Akinyemi be deported. It should be mentioned that this followed hot on the heels of a warning in 2011 that his case was being considered for deportation, and that the only reason that no action had been taken up until that point was because ‘it was believed [he] was a British citizen’.
Not a Lottery of Life Winner
In an appeal against the decision to deport, Mr. Akinyemi was successful. The First-Tier Tribunal (FTT) found that, due to the length of his residence in the UK (since birth), and the fact that he had never left the country (let alone visited Nigeria), his claim to a private life under Article 8 was strong, and outweighed the public interest in his deportation.
The Secretary of State appealed against this decision to the Upper Tribunal where the FTT decision was reversed by UT Judge Kekic:
Plainly, the maintenance of effective immigration control requires the appellant’s deportation. He has never had leave to be here and no steps have been taken to regularise his stay. It is maintained that his parents assumed he would be British by birth however no legal advice appears to have been taken in this respect. The rules do not seek to make any distinction between those who knowingly remain without leave and those who do so without realising they have no lawful basis to remain.
Although Mr. Akinyemi had a large window in which to register as a British citizen under various provisions of the British Nationality Act 1981, he was found to have remained – contrary to his own belief, as well as that of the Home Office – in the UK without any lawful status.
I must also bear in mind that little weight is to be given to a private life that is established during unlawful residence.
The key test was for Mr. Akinyemi, as a foreign criminal sentenced to over 4 years in prison, to show that ‘very compelling circumstances’ (117C(6) Immigration Act 2014) existed, over and above the already very exacting requirements of 117C(4) (requiring lawful residence for the majority of his life, social and cultural integration, and significant obstacles to integration in Nigeria), which should prevent his deportation. For UTJ Kekic, the fact that he was born in the UK and had never left did not constitute ‘very compelling circumstances’.
In the subsequent appeal to the Court of Appeal, however, the Appellant’s legal team spotted a point not taken in either of the previous hearings, and referred the court to an extract from the 2009 Immigration Directorate Instructions:
This section relates to children born in the United Kingdom on or after 1 January 1983 who are not British citizens because, at the time of their birth, neither of their parents was a British citizen or settled here. Such children do not have the right of abode and are subject to immigration control. They are not here unlawfully, however, and are not required to apply for leave to remain … [emphasis supplied by CoA]
Neither here, nor there
Mr. Akinyemi therefore fell within the confines of a narrow legal concession made by the Secretary of State for children born after the commencement of the BNA 1981, leaving him in the strange position of being neither settled, nor unlawfully present.
Given that much of the Upper Tribunal decision had placed significant weight on the finding that Mr. Akinyemi was in the UK ‘unlawfully’ and the requirement to have regard to primary legislation mandating that ‘little weight’ should given to a private life established during this time (s.117B(4)), the Upper Tribunal determination was already looking unsafe.
However, the Court of Appeal judgment also contains a particularly interesting discussion as to the meaning of the word ‘unlawful’ in the context of s.117C. It is worth quoting at length [40-42]:
… The question is whether the reference in this particular context to a person being in the UK “unlawfully” is to their presence being in breach of UK law or is merely to their not having a positive vested right of residence. In my view the former construction is correct, for essentially two reasons.
First, as a matter of the ordinary use of language it seems to me unnatural to describe a person’s presence in the UK as “unlawful” (which is not necessarily the same as not being “lawful”) when there is no specific legal obligation of which they are in breach by being here and no legal right to remove them – and all the more so where they have, as the Appellant did from the ages of four to 23, an absolute right at any time to acquire British nationality simply by making the necessary application.
Secondly, it seems to me that a construction which focuses on removability rather than a positive right to remain is more in keeping with the statutory context. Section 117B (4) is concerned with the establishment of a “private life” over a period of presence in the UK. The reason why it is reasonable to place little weight on private life established while a person’s presence in the country has been “unlawful” is surely that he or she has no legitimate expectation of their continuing presence in the country and may be removed at any time. It is similar, but a fortiori, to that underlying section 117B (5), relating to private life developed while a person’s immigration status is “precarious”. It is hard to see how that policy can apply to the situation of a person born in the UK to parents who were lawfully present and who in due course became settled, who is legally irremovable and who is entitled to acquire British nationality: such a person’s expectation that they will continue to live indefinitely in the UK is entirely legitimate.
This is an absolutely sensible interpretation of the word ‘unlawful’ in this context, which should surely focus on the individual’s own genuinely held belief of their status in the country.
It will obviously be more of a wrench for someone to be blindsided by news that they can be deported from the country of their birth than for someone who always knew that their presence was unlawful, and always feared the knock at the door of the immigration authorities. Where there are objective features of an individual’s case which suggest that such a belief would be genuinely held then this adds additional weight to its legitimacy.
Another irritating feature of the UT decision is the finding that the appellant, a man who has never left the country, is somehow not integrated into society. Unless he lived as a hermit (which would have been a pretty strong defence to the charge of Possession With Intent To Supply), it is difficult to see how Mr. Akinyemi could not have been integrated in the society in which he lived. The Court of Appeal deal with this shortly:
I am not sure whether [the provisions regarding integration] are in truth directed to a situation of the present kind, where the person in question has lived in the UK since birth and is one sense fully integrated into society, however anti-social their behaviour.
While the Court of Appeal were happy to remit the case back to the Upper Tribunal for a further hearing on the basis of the legal error, they were less interested in contesting the proportionality assessment of UTJ Kekic, having not themselves heard the evidence.
‘There is no world without Verona walls’
Exile is an old punishment. It appears in the legal codes of both the Greeks and the Romans, who used it as an alternative sentence to death in cases of homicide. In this country, the Anglo-Saxons referred to it as outlawry, and it continued well into the Victorian era, the last of the transportations to the penal colony in Australia taking place in the 1860s.
Sedley LJ referred to ‘exile’ in B v SSHD  EWCA Civ 158. That deportation case involved a 45 year old man who had arrived in the UK at the age of 7 and, unlike Mr. Akinyemi, had visited the country of his birth and spoke its language.
That the UT found Mr. Akinyemi’s birth and 33-year unbroken presence in the UK insufficient to demonstrate the ‘very compelling circumstances’ required to avoid deportation shows just how far the currency of Article 8 has depreciated in recent years. It is very unlikely that an appellant armed with these facts would have struggled to prevail in such an appeal even 5 years ago.
If deportation is effected, which is still a very real possibility, it will be the first time Mr. Akinyemi has left these shores. That is a sobering thought.
For more information on registering children who are potentially entitled to British citizenship, see the excellent Project for the Registration of Children as British Citizens.