AK (Sierra Leone) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Jackson,Black LJJ |
| Judgment Date | 21 June 2016 |
| Neutral Citation | [2016] EWCA Civ 999 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 June 2016 |
[2016] EWCA Civ 999
COURT OF APPEAL
Jackson and Black LJJ
Ms G Kiai instructed by Southwark Law Centre, for the Claimant;
Mr R Fortt instructed by the Government Legal Department, for the Secretary of State.
CD (Jamaica) v Secretary of State for the Home Department [2010] EWCA Civ 768
Carcabuk and Bla v Secretary of State for the Home Department 18 May 2000 (00/TH/01426) (unreported) Devaseelan (Second Appeals — ECHR — Extra-Territorial Effect) Sri Lanka * [2002] UKIAT 702; [2003] Imm AR 1
Koori and Others v Secretary of State for the Home Department [2016] EWCA Civ 552
MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544; [2014] 2 All ER 543; [2014] Imm AR 211; [2014] INLR 18
NR (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 856; [2010] INLR 169
Secretary of State for the Home Department v Davoodipanah [2004] EWCA Civ 106; [2004] INLR 341
European Convention on Human Rights, Article 8
Immigration Rules HC 395 (as amended), paragraphs 276ADE & 398 – 399A
Nationality, Immigration and Asylum Act 2002, sections 94 & 117A – D
Procedure and process — deportation — foreign criminal — Home Office concession that Claimant satisfied ‘exception 1’ in section 117C(4) of the Nationality, Immigration and Asylum Act 2002 — determinative of appeal — unjust to withdraw concession
The Claimant, a citizen of Sierra Leone, arrived in the United Kingdom as a child to join his mother. He was granted indefinite leave to remain in 1996. He began committing criminal offences in his teenage years and was sentenced to 30 months' imprisonment in 2005 for a drugs related offence. The Secretary of State for the Home Department notified the Claimant of her intention to deport him to Sierra Leone in 2006. Section 117C(3) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) provided that deportation of a foreign criminal who had not been sentenced to a period of imprisonment of four years or more was in the public interest unless ‘exception 1’ or ‘exception 2’ applied. In order to qualify for ‘exception 1’, the Claimant had to satisfy three limbs under section 117C(4). The first was that he had been lawfully resident in the United Kingdom for most of his life, the second that he was socially and culturally integrated in the United Kingdom and the third that there would be very significant obstacles to his integration into the country to which he was proposed to be deported.
The Secretary of State made a deportation order against the Claimant in 2006. Although the Claimant exhausted his rights of appeal against that order, the Secretary of State did not proceed to effect deportation. In 2012 the Secretary of State refused the Claimant's application to revoke the deportation order. Following unsuccessful appeals to the First-tier Tribunal (“FtT”) and the Upper Tribunal (“UT”), the Claimant submitted a fresh application for revocation. The Secretary of State further refused that application and certified the claim as clearly unfounded under section 94(2) of the 2002 Act. Accordingly, the Claimant was deported to Sierra Leone in 2014 and he commenced an out-of-country appeal against the Secretary of State's refusal to revoke the order.
During the course of the Claimant's appeal before the FtT, the Home Office Presenting Officer conceded that the Claimant satisfied ‘exception 1’ and as such the public interest did not require his deportation. The FtT allowed the Claimant's appeal on that basis. On appeal, the UT held that the Secretary of State was entitled to withdraw the concession and that the FtT had failed to give proper reasons for holding that the Claimant fell within ‘exception 1’. The UT set aside the decision of the FtT and proceeded to re-make the decision. The UT allowed the Secretary of State's appeal on the basis that there would not be very significant obstacles to the Claimant's reintegration into Sierra Leone and so the third limb of ‘exception 1’ had not been satisfied.
Before the Court of Appeal, the Secretary of State conceded that the UT had erred in its approach to the third limb of ‘exception 1’ as there had been no analysis of the circumstances of the case, no consideration of the prejudice caused to the Claimant as a result of the withdrawal of the concession, and no consideration of the interests of justice. She argued that the proper course in the circumstances was to remit the case to the UT so that it could rehear the Secretary of State's appeal. The Claimant submitted that the Home Office could have withdrawn the concession at any time during the hearing with leave and that it was not appropriate to do so many months later. Further, the Claimant argued that the Home Office had effectively conceded the whole appeal in accepting that all three limbs of ‘exception 1’ were satisfied and so the whole case had been concluded before the FtT, there was no error of law and, therefore, the UT had no jurisdiction to hear any appeal.
Held, allowing the appeal:
(1) It was clear that at the hearing before the FtT, the Home Office Presenting Officer had conceded that all three limbs of ‘exception 1’ were satisfied. There was no obligation on the FtT to query that concession. The concession was a carefully considered decision made after the hearing of evidence. The provisions of paragraphs 398 to 399A of the Immigration Rules HC 395 (as amended) and of section 117A to D of the 2002 Act together formed a complete code as to how Article 8 claims put forward by foreign criminals should be dealt with: MF (Nigeria) v Secretary of State for the Home Department[2013] EWCA Civ 1192 applied. The correct approach for any decision-maker applying section 117C and paragraphs 398 to 399A was well-established. The task was not to carry out a freestanding analysis of the Article 8 factors. The Secretary of State had already carried out that exercise in drafting paragraphs 398 to 399A. Those rules formed a complete code explaining how Article 8 of the ECHR operated in cases where a foreign criminal was resisting deportation. The decision-maker had to take account of the proposed deportee's Convention rights through the lens of the Immigration Rules (paras 21 and 43 – 46).
(2) If the Claimant fell within ‘exception 1’, that was an end of the matter and he was entitled to revocation of the deportation order. Equally, if the Claimant did not fall within any of the saving provisions in sections 117A to D of the 2002 Act and in paragraphs 398 to 399A of the Rules, then he could not rely on Article 8 of the ECHR or resist deportation. It followed that the concession made by the Home Office Presenting Officer was such as to determine the entire appeal. The FtT had been entitled to accept those concessions and that was the end of the case. It would be unjust if the Secretary of State, having conceded on all points, was entitled to resurrect her case and withdraw the concessions which she had made. The UT had given no good reason for allowing the Secretary of State to take that course. Against that background and some two years and eight months after the concessions had been made, it would be unjust to remit the instant case to the UT so that the Secretary of State could embark on another attempt to withdraw her concessions. Accordingly, the instant appeal would be allowed and the decision of the FtT would be reinstated (paras 47 – 50).
Lord Justice Jackson:
[1] This judgment is in four parts, namely, Part 1, Introduction; Part 2, The facts; Part 3, The present proceedings; Part 4, The appeal to the Court of Appeal.
[2] This is an appeal by a foreign criminal against an Upper Tribunal decision upholding the Secretary of State's refusal to revoke a deportation order. The central issues in this appeal are the effect of concessions made by the Secretary of State before the First-tier Tribunal and whether the foreign criminal can resist deportation in reliance upon the long...
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...appeal and remitted the case to the IAT to consider whether it would allow the concession to be withdrawn. 43 In AK (Sierra Leone) v. Secretary of State for the Home Department [2016] EWCA Civ 999, concessions were made on behalf of the Secretary of State before a First-tier Tribunal that A......
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