DM (Zimbabwe) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lady Justice King,Ms Justice Russell |
| Judgment Date | 11 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1288 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 December 2015 |
| Docket Number | Case No: C5/2013/1668 |
[2015] EWCA Civ 1288
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER
IA/36294/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lady Justice King
and
Ms Justice Russell
Case No: C5/2013/1668
Ms Shivani Jegarajah (instructed by Duncan Lewis Solicitors) for the Appellant
Mr Rory Dunlop (instructed by The Government Legal Department) for the Respondent
Hearing date: 1 st December 2015
This judgment is in five parts, namely:
| Part 1. Introduction | Paragraphs 2 to 6 |
| Part 2. The facts | Paragraphs 7 to 13 |
| Part 3. The appeal to the Court of Appeal | Paragraphs 14 to 19 |
| Part 4. The Law | Paragraphs 20 to 36 |
| Part 5. Decision | Paragraphs 37 to 42 |
This is an appeal by a foreign criminal against a deportation decision. The main issue in this appeal is whether certain statements of principle by the European Court of Human Rights in Maslov v Austria (Application no. 1638/03, 23 rd June 2008) are applicable to foreign criminals who are unlawfully present in the host country.
The provisions of the UK Borders Act 2007, which was the governing statute at the relevant time, are well known and do not need to be set out.
The provisions of the Immigration Rules are less well known, because they are constantly changing. At the time of the Secretary of State's deportation decision paragraph 364 of the Immigration Rules provided as follows:
"364. Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. In the cases detailed in paragraph 363A deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority."
I shall refer to the European Convention on Human Rights as "ECHR". Article 8 of the ECHR provides:
"Article 8 — Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society 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."
After these introductory remarks, I must now turn to the facts.
The appellant is a national of Zimbabwe born on 14 th September 1990. He came to the United Kingdom with his sister on 12 th April 2000. He was then aged 9 years and 7 months. The Secretary of State granted him leave to enter as a visitor for 6 months. He was subsequently granted leave to remain as a student until 30 th April 2002. The appellant did not return to Zimbabwe by that date, but remained living in the UK with his parents and sister.
In August 2002 the appellant's father made a claim for asylum, naming the appellant as one of his dependants. The Secretary of State rejected that claim. The father unsuccessfully appealed against the refusal of his claim. The appellant subsequently made an asylum and human rights claim in his own right in 2008, in response to a liability to removal notice from the Secretary of State. The Secretary of State rejected that claim. The appellant's appeal to the First-tier Tribunal against that decision failed on 24 May 2011.
While the appellant and his sister were living in this country, they enjoyed the benefits of a UK education up to the age of 18. The sister put that education to good use. She completed an IT apprenticeship and embarked upon paid employment. The appellant followed a different path. He embarked upon a career of crime.
Between 2007 and 2011 the appellant committed numerous criminal offences. These included attempted robbery, robbery, possessing an intimation firearm, theft, possession of Class B and Class C drugs, breaches of anti-social behaviour order, threatening behaviour with intent to cause fear of violence, possessing articles for use in fraud, breach of bail and many similar offences. The appellant received a variety of custodial and non-custodial sentences. The custodial sentences ranged between three months and eight months in length. Shortly stated, the appellant was a menace to the community. He caused distress to a large number of victims. He put others to considerable expense and made repeated demands upon the criminal justice system.
Unsurprisingly the Secretary of State concluded that the deportation of the appellant to Zimbabwe would be conducive to the public good. On 10 th November 2011 she served a deportation notice on the appellant.
The appellant appealed to the First-tier Tribunal against the Secretary of State's decision to make a deportation order on the grounds that deportation would be a breach of his rights under ECHR article 8. The First-tier Tribunal dismissed the appellant's appeal. The appellant appealed from there to the Upper Tribunal on essentially the same grounds. By a determination promulgated on the 29 th April 2013 the Upper Tribunal dismissed the appellant's further appeal.
The appellant was aggrieved by the Upper Tribunal's decision. Accordingly he appealed to the Court of Appeal.
By a notice of appeal filed on 19 th June 2013 the appellant applied for permission to appeal on the ground that the deportation decision was in breach of his rights under ECHR article 8. Laws LJ refused permission on the papers, stating:
"On the merits, this applicant has been unlawfully here at least since 28 th February 2003. He is a persistent and prolific criminal. His record includes violence and dishonesty. His deportation is manifestly in the public interest and the argument that his length of stay in the UK since the age of 9 might justify his being allowed to remain is fanciful."
The appellant orally renewed his application for permission to appeal. The hearing of that application was deferred pending the Court of Appeal's decision in Akpinar v Upper Tribunal (Immigration and Asylum Chamber) [2014] EWCA Civ 937. The court handed down that decision on 8 th July 2014.
At an oral hearing on 16 th July 2014 Maurice Kay LJ granted permission to appeal with some reluctance. At paragraphs 11–13 he said:
"11. As I say, I have come very close to concluding that ultimately his case would be bound to fail and that he ought not be granted permission.
12. However, the fact is that he was a juvenile when this offending began, he was 20 when it came to an end, and has been in this country since he was aged nine or thereabouts.
13. In these circumstances, I think it can just about be said that he should be granted permission to appeal so that it can be considered whether his case, notwithstanding its unattractive features, should ultimately be reconsidered by the Upper Tribunal, having regard to the Maslov criteria or their equivalent in relation to a person whose presence is unlawful."
In these somewhat inauspicious circumstances the appeal came on for hearing before us on 1 st December 2014. Although the grounds of appeal and supporting skeleton argument are wide ranging, Ms Jegarajah for the appellant has helpfully focused her oral submissions on the real issues in this appeal.
Ms Jegarajah advances two arguments. First, she says that the tribunals did not correctly apply the legal principles established by the Strasbourg Court in Üner v The Netherlands (Application 46410/99, 18 th October 2006) and Maslov v Austria (Application 1638/03, 23 rd June 2008). Secondly, Ms Jegarajah submits that the proper remedy is remittal to the Upper Tribunal. If the case is remitted, there is a good prospect that the Upper Tribunal will allow the appellant's appeal.
Before addressing these arguments. I must first review the law.
Despite the strong pointers towards deportation in paragraph 364 of the Immigration Rules, the fact remains that the Secretary of State cannot make a deportation order against a foreign criminal if that would breach his rights under ECHR article 8. It is therefore necessary to consider both the Strasbourg decisions and the English authorities on the operation of article 8 in the context of deportation.
In Üner v The Netherlands (Application 46410/99, 18 th October 2006) U, a Turkish national, went with his mother and brothers to live in The Netherlands when he was aged 12. He obtained a residence permit. He committed offences of violence. When he was aged 29 the Dutch authorities deported him to Turkey. The Grand Chamber of the European Court of Human Rights held that this was a breach of U's rights under article 8 of ECHR.
In paragraph 57 of its judgment the Grand Chamber listed the factors...
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