Arjan Gosturani v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lady Justice Elisabeth Laing,Lord Justice Baker |
| Judgment Date | 09 June 2022 |
| Neutral Citation | [2022] EWCA Civ 779 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2021-000109 |
[2022] EWCA Civ 779
Lord Justice Baker
Lord Justice Lewis
and
Lady Justice Elisabeth Laing
Case No: CA-2021-000109
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE SHERIDAN
Appeal No. RP/00001/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Barnabas Lams (instructed by Oak Solicitors) for the Appellant
Colin Thomann (instructed by the Government Legal Department) for the Respondent
Hearing date: 12 May 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on 9 June 2022.
INTRODUCTION
This appeal concerns the proper approach to determining whether the deportation of a person who has been convicted of crimes outside the United Kingdom would involve a disproportionate interference with the right to respect for family and private life guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
In brief, the appellant, Arjan Gosturani, came to the United Kingdom in 1997. He used a false name and claimed to be a national of Kosovo when he was in fact an Albanian national. He applied for and was granted asylum on that false basis. He maintained that deception for the next 20 years. In addition, he was convicted of a serious criminal offence in Italy for which he was sentenced to six years and six months' imprisonment. The respondent decided that his deportation would be conducive to the public good. An appeal against that decision was dismissed by the Upper Tribunal.
The appellant contends that the Upper Tribunal erred because it considered that the public interest in deporting foreign nationals who had been convicted of criminal offences abroad was the same as the public interest in deporting foreign nationals who had been convicted of offences in the United Kingdom. He contends that the statutory regime enacted by Parliament gives added weight to the public interest in deporting foreign nationals who have been convicted of offences in the United Kingdom. On that basis, he contends that the Upper Tribunal erred by giving the same weight to the public interest in deportation in his case as it would if he had been convicted of an offence in the United Kingdom.
The respondent contends that the Upper Tribunal rightly considered the factors favouring deportation, including the fact that the appellant had lied to obtain refugee status and had committed a serious offence abroad. The Upper Tribunal was entitled to consider that there was a public interest in not allowing persons who have committed serious offences abroad to remain in the United Kingdom. That had to be weighed against other factors, including the effect on the appellant and his family members' rights under Article 8 of the Convention and the best interests of the child. That is what the Upper Tribunal did in this case.
THE LEGAL FRAMEWORK
Section 3(5) of the Immigration Act 1971 (“the 1971 Act”) provides that:
“(5) 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 or
(b) another person to whose family he belongs is or has been ordered to be deported.”
Section 5 of the 1971 Act provides that the Secretary of State may make a deportation order in respect of a person who is liable to deportation under section 3(5) of the 1971 Act.
Section 32 of the UK Borders Act 2007 (“the 2007 Act”) makes specific provision in respect of persons who are foreign criminals as defined in that section, that is they are not British citizens and they have been convicted in the United Kingdom of an offence and sentenced to a period of at least 12 months' imprisonment (or have committed a specified offence and been sentenced to imprisonment). In such cases, the Secretary of State must make a deportation order unless certain exceptions apply including where deportation would breach a person's Convention rights. The appellant is not a foreign criminal within the meaning of that section. While he is not a British citizen, he has not been convicted in the United Kingdom of an offence for which he was sentenced to a period of at least 12 months' imprisonment. Rather, he was convicted in Italy of an offence committed in that country. The Secretary of State was therefore not required by section 32 to deport him but could choose to do so if she considered his deportation would be conducive to the public good.
There may be questions as to whether a person's deportation is compatible with Article 8 of the Convention. Article 8(1) provides that everyone has the right to respect for his private and family life. Article 8(2) provides that an interference with that right may be justified if it is in accordance with law and is necessary in the interests of “national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
Part 5A of the Nationality, Immigration and Asylum Act (“the 2002 Act”) makes provision about claims that deportation would be a breach of Article 8 of the Convention. Section 117A provides that:
“(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).
Section 117B deals with persons who are liable to deportation and persons who are to be removed from the United Kingdom for other immigration reasons. It provides as follows:
“ 117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) 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 able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(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.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
Section 117C of the 2002 Act sets out additional considerations to which a court or tribunal must have regard when considering cases involving foreign criminals. “Foreign criminals” is given a broader meaning than that given in section 32 of the 2007 Act. It means a person who is not a British citizen and who has been convicted in the United Kingdom of an offence and (a) he has been sentenced to period of at least 12 months' imprisonment or (b) the offence has caused serious harm or (3) he is a persistent offender: see section 117D(2) of the 2002 Act. Section 117C provides that:
“117C 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 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.
(7) The considerations in subsections (1) to...
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