Deissy Liliana Velasquez Taylor v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice McCombe,Lord Justice Vos |
| Judgment Date | 31 July 2015 |
| Neutral Citation | [2015] EWCA Civ 845 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2014/1098 |
| Date | 31 July 2015 |
[2015] EWCA Civ 845
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER
Upper Tribunal Judge Kekic
Upper Tribunal Judge Reeds
DA/01351/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Vice-President of the Court of Appeal, Civil Division
Lord Justice McCombe
and
Lord Justice Vos
Case No: C5/2014/1098
Mr. Raza Husain Q.C. and Miss Catherine Meredith (instructed by Wilson Solicitors LLP) for the appellant
Miss Julie Anderson (instructed by the Government Legal Department) for the respondent
Hearing date : 9 th July 2015
This is an appeal against the decision of the Upper Tribunal dated 7 th February 2014 dismissing the appellant's appeal against a deportation order made against her by the Secretary of State.
The appellant, Mrs. Taylor, is a national of Colombia who first entered the United Kingdom on a false passport in 2006 in order to find employment that would enable her to provide for her four children and her mother, all of whom remained in Colombia. While in this country she met a British national, Mr. Ronald Taylor, and returned to Colombia in September 2008 in order to get married to him. On 27 th November 2008 she returned to the United Kingdom with him, having been granted 2 years' leave to enter as his spouse. Together with a Colombian friend, Mauro, whom she had met in this country they set up a small business importing flowers and foodstuffs from Colombia. The day to day management of the business was left in the hands of Mauro. In due course the appellant and her husband became aware that the business was being used as a cover for importing cocaine. When they challenged Mauro he threatened reprisals against the appellant's mother and children in Colombia.
Eventually the police intercepted a parcel of 20 kg of cocaine of 60% purity in the course of importation under cover of the appellant's business. She and her husband were arrested and in due course they both pleaded guilty to being knowingly involved in the evasion of the prohibition on the import of a Class A drug. The appellant was sentenced to 8 years' imprisonment and her husband to 9 years' imprisonment. As a result, the appellant became liable to deportation as a foreign criminal under section 32 of the UK Borders Act 2007, the material parts of which provide as follows:
"(4) 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.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33)."
Section 33 provides as follows:
"33 Exceptions
(1) Section 32(4) and (5)—
(a) do not apply where an exception in this section applies …
(b) …
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach —
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention."
Paragraphs 398 to 399A of the Immigration Rules are directed to those cases in which foreign criminals who are liable to deportation claim that removal would involve an unlawful infringement of their rights under Article 8 of the European Convention on Human Rights ("the Convention"). Paragraph 398 in the form in force at the relevant time provided, so far as material, as follows:
"398.Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) …
(c) …
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors."
Paragraph 399 is concerned with two instances in which exceptional circumstances are established. The first concerns the existence of a parental relationship between the person liable to deportation and a child living in this country; the second concerns the existence of a subsisting relationship between the person liable to deportation and a partner who is settled in this country. In the latter case the partner has to have lived in this country for at least 15 years and there must have been "insurmountable obstacles" to family life with that partner continuing outside the UK. Paragraph 399A is directed to the case where the person liable to deportation has lived continuously in the UK for at least 20 years and has no ties with the country to which he would have to go if required to leave the UK or is aged under 25 years, has spent at least half of his life living continuously in the UK and has no ties to that country.
Since paragraph 398(a) applies in this case, neither of those provisions is directly relevant, but I have drawn attention to them because they serve to emphasise the rigorous requirements which foreign criminals face for obtaining leave to remain when sentenced to between 12 months' and 4 years' imprisonment. One might therefore reasonably expect that the requirements of the rules would be no less rigorous for those who have been sentenced to more than 4 years' imprisonment and that the expression "exceptional circumstances" in paragraph 398 would be interpreted with that in mind. It is not surprising, therefore, that in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 W.L.R. 998 this court should have described the position as follows:
43. The word "exceptional" is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the "exceptional circumstances" [sc. to which paragraph 398 refers].
44. We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence."
It follows that only very compelling reasons will be sufficient to outweigh the strong public interest in the deportation of a foreign criminal.
The Secretary of State made a deportation order against the appellant pursuant to section 32(5) of the 2007 Act. The appellant lodged an appeal with the First-tier Tribunal on the grounds that to deport her would unlawfully interfere with her rights under Article 8 of the Convention. She relied on the fact that she had behaved very well in custody and had since demonstrated positive good character by caring for her elderly parents-in-law, with whom she had a close relationship and who had come to rely heavily on the support they received from her. She had done all that could reasonably be expected of her by way of rehabilitation and was unlikely to re-offend.
The tribunal noted the observation of this court in Richards v Secretary of State for the Home Department [2012] EWCA Civ 244 that "the strong public interest in deporting foreign criminals is now not merely the policy of the Secretary of State but the judgment of Parliament", (a point emphasised in the subsequent case of SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 256; [2014] 1 W.L.R. 998). It also recognised that...
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