Binaku (S.11 TCEA; S.117C NIAA; Para 399D)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Norton-Taylor UTJ |
| Judgment Date | 27 January 2021 |
| Neutral Citation | [2021] UKUT 34 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 34 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Norton-Taylor UTJ
Mr Z Malik instructed by SMA Solicitors, for the Claimant;
Mr I Jarvis, Senior Home Office Presenting Officer, for the Secretary of State.
Anwar v Secretary of State for the Home Department [2017] EWCA Civ 2134: [2018] 1 WLR 2591; [2018] Imm AR 660; [2018] INLR 127
CI (Nigeria) v Secretary of State for the Home Department [2019] EWCA Civ 2027: [2020] Imm AR 503; [2020] INLR 191
IT (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 932; [2017] 1 WLR 240; [2017] Imm AR 414
KO (Nigeria) v Secretary of State for the Home Department; IT (Jamaica) v Secretary of State for the Home Department; NS (Sri Lanka and Others) v Secretary of State for the Home Department; Pereira v Secretary of State for the Home Department[2018] UKSC 53; [2018] 1 WLR 5273; [2019] 1 All ER 675: [2019] Imm AR 400; [2019] INLR 41
Katsonga (“Slip Rule”; FtT's general powers) [2016] UKUT 228 (IAC)
MH (review; slip rule; church witnesses) Iran [2020] UKUT 125 (IAC); [2020] Imm AR 983
NE-A (Nigeria) v Secretary: of State for the Home Department; Secretary of State for the Home Department v HM (Uganda)[2017] EWCA Civ 239; [2017] Imm AR 1077; [2018] INLR 88
OH (Algeria) v Secretair of State for the Home Department [2019] EWCA Civ 1763; [2020] Imm AR 350
R (on the application of Mansoor) v Secretary of State for the Home Department (Balajigari — effect of judge's decision) [2020] UKUT 126 (IAC); [2020] Imm AR 956
Rexha (S.117C – earlier offences) [2016] UKUT 335 (IAC); [2016] Imm AR 1426; [2017] INLR 412
Secretary of State for the Home Department v Devani [2020] EWCA Civ 612; [2020] 1 WLR 2613; [2020] Imm AR 1183
Secretary of State for the Home Department v SU [2017] EWCA Civ 1069; [2017] 4 WLR 175
Smith (appealable decisions; PTA requirements; anonymity) [2019] UKUT 216 (IAC); [2019] Imm AR 1325; [2019] INLR 788
Williams (scope of “liable to deportation”) [2018] UKUT 116 (IAC); [2018] INLR 668
European Convention on Human Rights, Articles 3 & 8
Human Rights Act 1998, section 6
Immigration Rules HC 395 (as amended), paragraphs 322(3) & 399D,
Nationality, Immigration and Asylum Act 2002, sections 82(1), 84 & 117A–D
Tribunals, Courts and Enforeement Act 2007, section 11 & 13
Procedure and process — deportation — foreign criminal — section 117C of the 2002 Act determinative of appeal — re-entry in breach of deportation order — paragraph 399D of the Rules not relevant to statutory criteria — rights of appeal — section 11 of the TCEA — no right of appeal where exact outcome achieved
The Claimant, a citizen of Kosovo, entered the United Kingdom in June 1998 and applied for asylum. The application was refused and his appeal against that decision was dismissed in April 2009. In the interim, the Claimant had been convicted in November 2008 of theft and possession of a weapon and was sentenced to 12 months' imprisonment. As a result, the Secretary of State for the Home Department made a deportation order in September 2009. The Claimant married his wife, a naturalised British citizen, in June 2010. In October 2011 he accrued further convictions, this time for supplying Class A drugs, and was sentenced to three years' imprisonment. His appeal against a decision to deport him was dismissed in April 2012. He was deported to Kosovo in July 2012. The Claimant re-entered the United Kingdom in 2014 in breach of the deportation order. His presence in the country was only detected when he was arrested in June 2018. He then requested that the deportation order be revoked based on his family life with this wife and the couple's two children, born in November 2014 and July 2017. both of whom were British citizens. He asserted that he and his wife suffered from significant mental health problems and that the family unit could neither relocate to Kosovo, nor be split up. The Secretary of State reconsidered the Claimant's case but refused his human rights claim in June 2019. The Claimant appealed.
The First-tier Tribunal (“FtT”) Judge concluded that it would be unduly harsh on the children to have to live in Kosovo or to be separated from their father. The effect of that conclusion was that the Claimant had satisfied the family life exception under section 117C(5) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). As the Claimant had re-entered the United Kingdom in breach of a deportation order, the Judge also directed herself to paragraph 399D of the Immigration Rules HC 395 (as amended), noting that the threshold in that provision was an “extremely demanding one”. The Judge regarded her conclusion that relocation or separation was unduly harsh as “one factor in the 399D balancing exercise” and ultimately concluded that the very high threshold established by paragraph 399D had not been met and thus the Claimant's appeal fell to be dismissed.
On appeal, the Upper Tribunal considered two issues, one procedural in nature, and the other substantive. The procedural issue was whether a party who had succeeded on all available grounds in an appeal before the FtT, and who might therefore be described as “the winner”, could then appeal to the Upper Tribunal on a point of law. The Claimant argued that the winning party could appeal and therefore must comply with the applicable procedural steps. The Secretary of State submitted that the only appropriate vehicle for that party to raise such a ground was by way of a response under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (a “rule 24 response”) when the losing party had applied for. and been granted, permission to appeal. The answer to the procedural question was entirely academic in the instant case and the observations made on the issue did not form part of the ratio of the decision. The substantive issue was whether the satisfaction by an individual of the relevant criteria under section 117C(4), (5). and (6) of the 2002 Act was determinative of an appeal, notwithstanding the provisions of the Immigration Rules. The parties agreed that the ability to meet either of the two exceptions or to show very compelling circumstances over and above those described in the exceptions would be determinative of an appeal. Although the Secretary of State initially challenged the FtT Judge's findings on the undue harshness issue under section 117C(5) of the 2002 Act in her rule 24 response, she later withdrew reliance on the rule 24 response. That had the effect of leaving the Judge's findings on the undue harshness issue unchallenged.
Held, allowing the Claimant's appeal:
(1) The appellate regime established by the 2002 Act, as amended, was concerned with outcomes comprising the determination of available grounds of appeal. A party who had achieved the exact outcome(s) sought by way of an appeal to the FtT being allowed on all available grounds relied on (in respect of an individual) or because it had been dismissed on all grounds (in respect of the Secretary of State) could not appeal to the Upper Tribunal under section 11(2) of the Tribunals, Courts and Enforcement Act 2007 against particular findings and/or reasons stated by the judge. In order to ensure that the outcome(s) could be clearly identified, and in turn the extent to which one party or the other was “the winner”. judges should set out fully the precise basis, or bases, of their decision, whether favourable to the appellant or otherwise. It followed that an appellant who was able to, and did, rely on a number of grounds would have a right of appeal in respect of those upon which they were unsuccessful. Secretary of State for the Home Department v Devani[2020] EWCA Civ 612 represented binding authority from the Court of Appeal to that effect: Anwar v Secretary of State for the Home Department[2017] EWCA Civ 2134 distinguished. Parties were not encouraged to instigate appeals against decisions of the FtT in circumstances where they had succeeded in respect of certain grounds and as a result achieved in substance what they might have sought all along, namely a grant of leave flowing from the favourable outcome (paras 20 – 64).
(2) The substantive issue concerned the relationship between Part 5A of the 2002 Act and the Immigration Rules. By virtue of section 117A(1) of the 2002 Act, a tribunal was bound to apply the provisions of primary legislation, as set out in sections 117B and 117C, when determining an appeal concerning Article 8. In cases concerning the deportation of foreign criminals, as defined, it was clear from section 117A(2)(b) that the core legislative provisions were those set out in section 117C. It was now well-established that those provisions provided a structured approach to the application of Article 8 which would produce in all cases a final result compatible with protected rights. It was the structured approach set out in section 117C which governed the task to be undertaken by the Tribunal, not the provisions of the Rules. A foreign criminal who had re-entered the United Kingdom in breach of an extant deportation order was subject to the same deportation regime as those who had yet to be removed or who had been removed and were seeking a revocation of a deportation order from abroad. The phrases “cases concerning the deportation of foreign criminals” in section 117A(2) and “a decision to deport a foreign criminal” in section 117C(7) were to be interpreted accordingly. Paragraph 399D of the Rules had no relevance to the application of the statutory criteria set out in section 117C(4). (5) and (6). It followed that the structured approach to be undertaken by a Tribunal considering an Article 8 appeal in the context of deportation began and ended with Part 5A of the 2002 Act (...
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Upper Tribunal (Immigration and asylum chamber), 2021-01-27, [2021] UKUT 34 (IAC) (Binaku (s. 11 TCEA; s. 117C NIAA; para 399D))
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