Engin Yalcin v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,King LJ,Warby LJ |
| Judgment Date | 06 February 2024 |
| Neutral Citation | [2024] EWCA Civ 74 |
| Year | 2024 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000606 |
[2024] EWCA Civ 74
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lady Justice King
and
Lord Justice Warby
Case No: CA-2023-000606
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Stephen Smith
UI-2022-000281
Royal Courts of Justice
Strand, London, WC2A 2LL
Zane Malik KC and Arif Rehman (instructed by Acharyas Solicitors) for the Appellant
Amy Mannion (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 21 November 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 6 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
The Appellant is a Turkish national, of Kurdish ethnicity, born on 15 January 1988. He first came to the UK in 2003 as an asylum seeker but his claim was refused and he was eventually removed in 2010. Later in 2010 he married a British national in Turkey, and in 2011 he returned to the UK on a spouse visa. He was granted indefinite leave to remain in 2013 and has two sons – K, born in February 2013, and D, born in February 2014: both are British citizens.
On 4 March 2016 the Appellant pleaded guilty to possessing a prohibited weapon, namely a Glock 17 semi-automatic pistol, and possessing that firearm without a certificate. He was sentenced to a total of five years and four months in prison.
On the basis of that conviction and sentence, on 19 December 2016 the Secretary of State notified the Appellant of her intention to deport him pursuant to section 32 of the UK Borders Act 2007. He made a human rights claim resisting deportation, which was refused by a decision dated 9 August 2017. He appealed to the First-tier Tribunal (“the FTT”). That appeal was not heard until March 2021. The reason for the delay is not clear, but it may be that it was thought necessary to await the result of a further asylum claim which the Appellant made in June 2018 and which was refused only in January 2021.
The Appellant's appeal, together with an appeal against the refusal of his asylum claim, was heard by First-tier Tribunal Judge Cohen on 17 March 2021. By a decision promulgated on 19 October 2021 he dismissed the appeal as regards the asylum claim but allowed it as regards the human rights claim. It is surprising that seven months elapsed between the hearing and the decision, but counsel were not aware of any explanation for the delay and no point was taken about it.
The Secretary of State appealed against the decision of the FTT. On 23 August 2022 Upper Tribunal Judge Stephen Smith held that the decision should be set aside for error of law. He directed that it be re-made at a further hearing of the Upper Tribunal (“the UT”), with no retained findings of fact. That hearing took place on 2 November 2022. By a decision promulgated on 1 February 2023 the Secretary of State's appeal was allowed.
The Appellant sought permission to appeal against both the original decision of the UT setting aside the decision of the FTT and, if that appeal were unsuccessful, its decision to re-make the decision rather than remit to the FTT. (There was no challenge to the UT's substantive decision if those challenges were unsuccessful.) Andrews LJ gave permission only as regards the first challenge. That means that the only issue for us is whether the FTT did indeed err in law in the respects found by the UT.
The Appellant has been represented before us by Mr Zane Malik KC leading Mr Arif Rehman, and the Secretary of State by Ms Amy Mannion, none of whom appeared below. The case was very well argued on both sides.
THE BACKGROUND LAW
Section 32 (4) of the 2007 Act provides that “the deportation of a foreign criminal is conducive to the public good”. Subsection (5) requires the Secretary of State to make a deportation order in respect of a “foreign criminal”, defined (so far as relevant for our purposes) as a person who is not a British citizen and who is convicted in the UK of a criminal offence for which they are sentenced to a period of imprisonment of at least twelve months. That obligation is subject to various exceptions set out in section 33. We are concerned only with the exception in section 33 (2) (a), which applies “where removal of the foreign criminal in pursuance of the deportation order would breach … a person's Convention rights”. The Convention rights in question are of course rights under the European Convention on Human Rights (“the ECHR”): the relevant right in most cases is the right to respect for private and family life accorded by article 8.
In a case where the removal of a person from the UK, including by way of deportation, would interfere with their article 8 rights, article 8 (2) requires the Secretary of State to show that that interference is justified. That entails a proportionality assessment in which the effect of the interference is weighed against the public interest in removal. There is a good deal of Strasbourg case-law about the proper approach to such an assessment, which is authoritatively reviewed in the judgment of Lord Reed in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799, at paras 24–35.
Part 5A of the Nationality, Immigration and Asylum Act 2002 was introduced by the Immigration Act 2014. It is headed “Article 8 of the ECHR: public interest considerations”. Its purpose, in general terms, is “to promote consistency, predictability and transparency in decision making and to reflect … Parliament's view of how as a matter of public policy, [the proportionality balance] should be struck”, and more particularly “to produce a straightforward set of rules, and in particular to narrow rather than widen the residual area of discretionary judgment for the court to take account of public interest or other factors not directly reflected in the wording of the statute”: see the judgment of Lord Carnwath in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, [2018] 1 WLR 5273, at paras. 12 and 15. Unfortunately, Part 5A is not very well drafted, and its provisions have required a good deal of judicial exposition.
Part 5A comprises four sections, 117A–117D. I need only set out sections 117A and 117C.
Section 117A provides, so far as material for our purposes, that in considering whether the interference with a potential deportee's right to respect for their private and family life is justified (defined as “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.”
Section 117C reads, so far as material:
“(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 term “qualifying child” is defined in section 117D (1) in terms that include a child who is a British citizen.
At the risk of spelling out the obvious, the effect of section 117C is to prescribe different approaches to the public interest question by reference to the length of the sentence imposed. Specifically:
(1) In the case of those sentenced to imprisonment for at least twelve months but less than four years (described in the case-law as “medium offenders”), the effect of subsection (3) is that deportation will not be justified if either of the two Exceptions identified in subsections (4) and (5) applies – Exception 1 being concerned with private life and Exception 2 with family life with a partner and/or with children.
(2) Where the potential deportee, to whom I will refer as “the claimant”, has been sentenced to more than four years' imprisonment (a “serious offender”), those Exceptions are not available and subsection (6) provides that in considering the public interest question deportation will be justified unless there are “very compelling circumstances, over and above those described in Exceptions 1 and 2”. The italicised words (“the over-and-above requirement”) are central to the main issue on this appeal: I will come back to them later.
(There is a rather fuller summary at para. 53 below.) I will sometimes for convenience refer to the proportionality assessment in cases where the Exceptions do not apply as being “required by”, or “under”, subsection (6), although that is not strictly accurate since the assessment is required by article 8 itself.
It should be noted that, although the circumstances described in...
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