AA (Nigeria) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Baker,Lord Justice Popplewell,Lord Justice Moylan
Judgment Date09 October 2020
Neutral Citation[2020] EWCA Civ 1296
Docket NumberCase No: C5/2019/1558

[2020] EWCA Civ 1296

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

LORD BECKETT (sitting as an Upper Tribunal Judge) and

UPPER TRIBUNAL JUDGE SMITH

HU/07428/2017

Royal Courts of Justice,

Strand, London, WC2A 2LL

Before:

Lord Justice Moylan

Lord Justice Baker

and

Lord Justice Popplewell

Case No: C5/2019/1558

Between:
AA (Nigeria)
Appellant
and
Secretary of State for the Home Department
Respondent

David Lemer (instructed by Duncan Lewis Solicitors) for the Appellant

Zane Malik (instructed by Government Legal Department) for the Respondent

Hearing dates: 21 July 2020

Further written submissions: 23 and 24 September 2020

Approved Judgment

Lord Justice Popplewell

Introduction

1

The appellant is a 32 year old citizen of Nigeria with no right to remain in this country. On 29 November 2013 he was convicted of supplying Class A drugs and sentenced to 4 1/2 years imprisonment. Following his release the respondent made a deportation order and rejected his human rights claim. He appealed to the First-tier Tribunal (“FTT”). In a decision dated 15 October 2018 (“the FTT decision”), FTT Judge Swaney allowed his appeal on the grounds that his deportation would disproportionately interfere with the rights of his partner and two children under article 8 of the European Convention on Human Rights (“ECHR”). On an appeal to the Upper Tribunal by the respondent, Lord Beckett and UT Judge Smith determined that the FTT decision involved an error of law, in a decision dated 12 February 2019 (“the UT Error of Law decision”). The Upper Tribunal gave directions for a further hearing for the purposes of the decision being remade by UT Judge Smith. Following a further hearing, she dismissed the appellant's appeal against his deportation order in a decision dated 17 May 2019 (“the UT Remade decision”). The appellant now appeals to this court, with leave, against the UT Error of Law decision and the UT Remade decision.

Chronology

2

The appellant was born in Nigeria on 2 January 1988. He came to this country with his mother when he was 11. It is not clear whether or not they initially had a temporary right to remain but the FTT Judge held that if so, it would have been for no more than 6 months, after which they overstayed. His mother abandoned him and he went to live with his aunt. In April 2006 his daughter K was born. She is now 14. She is a British citizen by virtue of the British citizenship of her mother, the appellant's partner at the time. They separated and in May 2009 the appellant married a Portuguese national, as a result of which on 7 July 2009 he was granted a residence card valid for 5 years. The marriage broke down and he had no contact with his wife after about 2011. On 16 August 2011 he was convicted of driving whilst disqualified and without insurance and given a community sentence with a 180 hour work requirement. On 29 November 2013 he was convicted, following a trial, of conspiracy to supply heroin and cocaine and sentenced to 4 1/2 years imprisonment. The sentencing remarks, which were before UT Judge Smith when coming to her UT Remade decision, but not before FTT Judge Swaney at the first hearing, revealed that he had been a willing drug runner for “MO” assisting him for financial gain in what he knew to be a substantial business, although it was in fact more substantial than he appreciated.

3

By the time of his sentence he had met his current partner C. Their son, A, was born in February 2014 whilst the appellant was in prison. A is now 6. He too is a British citizen by virtue of C's British citizenship.

4

The appellant made an application for a permanent residence card on the basis of retained rights of residence, which was refused. An appeal was allowed in part, but the respondent refused to implement it because the person purporting to be the appellant at the hearing must have been an imposter, the appellant still being in prison at the time. FTT Judge Swaney found that the appellant had not known of, or been complicit in, this deception and it does not affect the issues which arise on the appeal.

5

The appellant was released from prison in August 2015. He continued to live with C and their son A. His daughter K lived with her mother, but would spend time with the appellant and C and A, resulting in a bond between the two half siblings. On 21 April 2017 the appellant was served with notice of the respondent's deportation order. The grounds of deportation were that he was a foreign criminal by virtue of the trigger conviction for the supply of drugs. He made a human rights claim to the respondent relying both on his own Article 8 right to private life and on the rights to family life of his partner C and two children, K and A. It was rejected by the respondent on 16 June 2017.

The legal framework

6

The relevant statutory framework is well known to Judges in the Immigration and Asylum Chamber tribunals and to practitioners in this area. Section 32 of the UK Borders Act 2007 (“the 2007 Act”) provides in relevant respects that the respondent must make an order deporting a foreign criminal, that is to say a non UK citizen sentenced to a period of imprisonment of at least 12 months, unless it would breach a person's ECHR rights. When considering whether deportation is justified as an interference with a person's right to respect for private and family life under article 8(2) of the Convention, section 117A(2) of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) requires judicial decision makers to have regard in all cases to the considerations listed in section 117B, and in cases concerning the deportation of foreign criminals to the considerations listed in section 117C. Those sections were introduced by the Immigration Act 2014.

7

Section 117C of the 2002 Act, so far as relevant, provides:

“(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

…”

8

Paragraphs 398 and 399 of the Immigration Rules faithfully replicate the primary legislation.

9

There has been a proliferation of case law on the application of the “unduly harsh” test in section 117C(5) of the 2002 Act, and the “very compelling circumstances” test in section 117C(6). That is the result of the many different factual circumstances in which they regularly have to be applied by first instance judges of the Immigration and Asylum Chamber. That does not mean, however, that there is a need to refer extensively to authority for the meaning or application of these two statutory tests. It should usually be unnecessary to refer to anything outside the four authorities identified below, namely KO (Nigeria) v Secretary of State for the Home Department [2018] 1 WLR 5273; R (on the application of Byndloss) v Secretary of State for the Home Department [2017] 1 WLR 2380; NA (Pakistan) v Secretary of State for the Home Department [2017] 1 WLR 207; HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 117. It will usually be unhelpful to refer first instance judges to other examples of their application to the particular facts of other cases and seek to draw factual comparisons by way of similarities or differences. Decisions in this area will involve an examination of the many circumstances making up private or family life, which are infinitely variable, and will require a close focus on the particular individual private and family lives in question, judged cumulatively on their own terms. Nor will it be necessary for first instance judges to cite extensively from these or other authorities, provided that they identify that they are seeking to apply the relevant principles. I would associate myself with what Coulson LJ said at paragraph [37] of UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095, that it is an impediment to the efficient working of the tribunal system in this area for judges to have numerous cases cited to them or to feel the need to set out extensive quotation from them, rather than focussing primarily on their application to the factual circumstances of the particular case before them. Judges who are experienced in these specialised courts should be assumed by any appellate court or tribunal to be well familiar with the principles, and to be applying them, without the need for extensive citation, unless it is clear from what they say that they have not done so.

10

In relation to what is meant by “unduly harsh” in section 117C(5), the authoritative guidance is now that given by Lord Carnwath JSC in KO (Nigeria) and by this court in HA (Iraq). The former addressed this issue notwithstanding that the main question in that case was not the meaning of “unduly harsh” but...

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