Who is a Persistent Offender?

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice. 2 March 2020

We have represented the unmarried partner of a settled person in an appeal which was heard in early 2020.   The issue before the Judge was regarding suitability only, whether the Appellant was still a persistent offender, who showed a particular disregard for the law.  The matter was to be pursued by way of submissions only and the Judge pronounced the decision at the end of the hearing and allowed the appeal on the spot!

The relevant requirements of the Immigration Rules were set in Appendix FM, section EC-P Entry Clearance as a partner, and section S-EC Suitability for Entry Clearance.

The Respondent refused the application for entry clearance stating that the Appellant did not satisfy the suitability requirement in Appendix FM, referring to three convictions, and therefore he was considered to be a persistent offender who showed a particular disregard for the law and did not satisfy the relevant requirement of Appendix FM.  Our barrister, Ms Brown, provided a lengthy and helpful skeleton argument to the extent that is was not considered necessary to hear oral submissions from her.

In considering the meaning of “persistent offender”, the Judge considered and took into account, the guidance issued by the Tribunal in their decision in the case of Chege [2016].  The question of who is a persistent offender is a question of mixed fact and law, and falls to be determined by the Tribunal as at the date of the hearing before it.  A persistent offender is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision of that the continuity of the offending cannot be broken.  A persistent offender is not a permanent status that can ever be lost once it is acquired, but a person can be considered a persistent offender for the purpose of the Rules, even though he may not have offended for some time.

The guidance given by the Tribunal in the case of Chege was approved by the Court of Appeal in SC (Zimbabwe) v SSHD [2018]. Determining whether the offending is persistent is not just a mathematical exercise.  How long a period, and how many offences would be enough will depend very much on the facts of the particular case, and the nature and circumstances of the offending.

The criminal offences need not be the same or even of the same character as each other.  The issue before the Judge was whether, on the date of the Respondent decision, the Appellant was still a persistent offender or had lost that status. He has taken into account the various factors relating to the Appellant, his offending and his personal family circumstances, and concluded that there was no evidence that the Appellant had committed offences since the commencement of his relationship with the Sponsor and that the relationship with the sponsor had a positive influence on him in encouraging him to move away from criminal behaviour.  He did not commit any offences during the relationship with the sponsor and therefore found that the relationship was clearly a positive influence.