AM (Somalia) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Dame Elizabeth Gloster,Lord Justice Males,Lord Justice Hamblen |
| Judgment Date | 07 May 2019 |
| Neutral Citation | [2019] EWCA Civ 774 |
| Docket Number | Case No: C5/2017/1989 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 2019 |
[2019] EWCA Civ 774
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hamblen
Lord Justice Males
and
Dame Elizabeth Gloster DBE
Case No: C5/2017/1989
Manjit Gill QC and Anas Khan (instructed by Thompson & Co) for the Appellant
Claire van Overdijk (instructed by Government Legal Department) for the Respondent
Hearing date: 17 January 2019
Approved Judgment
Introduction
This is an appeal by the appellant (“AM” or “the appellant”) from the decision of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) dated 12 July 2016, by which the UT dismissed AM's appeal against the decision of the First Tier Tribunal (“FTT”) dated 29 January 2016. Both the UT and the FTT upheld the decision of the respondent Secretary of State (“the respondent”): (i) to revoke AM's status as a refugee and (ii) to make an order for his deportation. That decision was made following a series of criminal convictions on the part of AM, the most recent of which resulted in a sentence of imprisonment of two years.
The present appeal concerns, first, whether the decision of the FTT to refuse an application by AM for an adjournment pending service by the respondent of an Offender Assessment System (“OASys”) report was unfair and thus unlawful; and, second, whether the FTT was entitled to find that AM was not socially and culturally integrated in the UK for the purposes of considering, and rejecting, AM's attempt to resist deportation on the basis of his rights under Article 8 of the ECHR.
Legal framework
The legal framework in relation to deportation comprises three levels:
i) international conventions: namely the Refugee Convention 1951 (“the Refugee Convention”) and the European Convention on Human Rights (“ECHR”);
ii) national legislation: namely the Immigration Act 1971 (“ IA 1971”); the Human Rights Act 1998 (“ HRA 1998”); the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”); and the UK Borders Act 2007 (“BA 2007”); and
iii) the Immigration Rules.
The Refugee Convention
Article 32(1) of the Refugee Convention provides that contracting states may not expel a refugee lawfully in their territory save on grounds of national security or public order, and then only in pursuance of a decision reached “in accordance with due process of law” (Article 32(2)).
Pursuant to Article 33(1), contracting states may not return a refugee to
“territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
But
“[t]he benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country” (Article 33(2)).”
Moreover, Article 2 of the Refugee Convention provides:
“ General obligations Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.”
National legislation — relevant statutory provisions
Articles 32 and 33 of the Refugee Convention are implemented in the provisions dealing with the deportation of foreign criminals in the IA 1971, NIAA 2002, and BA 2007.
Section 72 of the NIAA 2002 applies “for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection)”; see section 72(1). Thus section 72(2) of NIAA 2002 provides that:
“A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is (a) convicted in the United Kingdom of an offence, and (b) sentenced to a period of imprisonment of at least two years”.
Section 72(6) provides that that presumption is rebuttable:
“A presumption under subsection (2), ( 3) or (4) that a person constitutes a danger to the community is rebuttable by that person.”
Section 3(5)(a) of the IA 1971 provides that:
“A person who is not a British citizen is liable to deportation from the United Kingdom if—
(a) the Secretary of State deems his deportation to be conducive to the public good”.
Section 32(4) of the BA 2007 explains that:
“For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.”;
and, so far as material, sections 32(1) and (2) define a “foreign criminal” for the purposes of the section as meaning a person who is not a British citizen, who is convicted in the United Kingdom of an offence, and is sentenced to a period of imprisonment of at least 12 months.
Section 32(5) of the BA 2007 (“automatic deportation”) imposes on the Secretary of State a duty, subject to the exceptions in section 33, to make a deportation order in respect of a “foreign criminal” as defined. Thus the relevant sub-sections provide:
“32 ……
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—
(a) he thinks that an exception under section 33 applies,
(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or
(c) section 34(4) applies.
(7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.”
Section 33 of the BA 2007 sets out several exceptions to the automatic deportation duty under Section 32(5). So far as is material for present purposes, it provides:
“Exceptions
(1) Section 32(4) and (5)—
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
(b) ……..
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person's Convention [i.e. ECHR] rights, or
(b) the United Kingdom's obligations under the Refugee Convention.
(3) ……
(4) ……
(5) ……
(6) …… (6A) ……
(7) The application of an exception—
(a) does not prevent the making of a deportation order;
(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;
but section 32(4) applies despite the application of Exception 1 or 4.”
Part 5A of the NIAA 2002 (as inserted by section 19 of the Immigration Act 2014) informs the decision making in relation to the application of the section 33 exceptions. Section 117A in Part 5A provides that, when a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life under Article 8, and, as a result, would be unlawful under section 6 of the HRA 1998, the court, in considering the public interest question, must “(in particular)” have regard to the considerations listed in section 117B and, additionally, in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
So far as is material to the present case: i) Section 117A provides as follows:
“Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
ii) Section 117B provides that:
“ Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) ……
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society
……. .”
Section 117C provides that:
“ Article 8: additional considerations in cases involving foreign criminals
(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.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(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...
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