FH v Secretary of State for the Home Department

Hearing date: 22 April 2020

Approved Judgment

Upper Tribunal JudgeMarkusQC:

The Claimant is a national of Iran. He was born on 16 ^th February 1955. He entered the UK as a visitor on 2 ^nd January 1979 and was given leave to remain until 30 ^th July 1980. At some point he went to France where he married a British citizen. On 27 ^th January 1981 he re-entered the UK with his wife and was granted leave to enter as a spouse until 27 ^th August 1981. On 30 ^th June 2005 the Claimant was convicted of making a threat to kill and of assault occasioning actual bodily harm, and received consecutive sentences of imprisonment totalling four years. On 1 ^st December 2005 the Claimant was convicted of thirteen counts of perverting the course of justice and two counts of obtaining property by deception and was sentenced to 30 months' imprisonment concurrent to the four year sentence.

The Claimant was served with notice of liability to deportation on 5 ^th May 2006. On 9th May 2006 he made asylum and. human rights representations that he should not be returned to Iran. The Defendant refused the claims and on 12 ^th November 2007 the Claimant was served with a notice pursuant to section 72 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) inviting him to make representations rebutting the presumption contained within section 72 that anybody sentenced to more than 2 years' imprisonment was deemed to have committed a particularly serious crime and to constitute a danger to the community. The Claimant's representations were refused, he appealed and his appeal rights were exhausted on 20 ^th January 2009. A deportation order was signed on 24 ^th February 2009.

In June 2012 the Claimant made submissions against his deportation, relying on Article 8 of the European Convention on Human Rights. On 1 ^st February 2016 the Defendant refused to accept the further submissions as a fresh claim pursuant to paragraph 353 of the Immigration Rules. On 15 ^th July 2019 the Claimant was detained and served with removal directions. On 22 ^nd July 2019 the Claimant made further submissions against deportation. On 24 ^th July the Defendant refused to accept the submissions as a fresh claim and refused to revoke the deportation order. On 24 ^th and 25 ^th July the Claimant's then solicitor made further submissions. By two decisions on 25 ^th July, the Defendant refused to accept these as a fresh claim and refused to revoke the deportation order. On 1 ^st August 2019 the Claimant was removed to Iran.

In this application for judicial review the Claimant contends that the decisions of 24 ^th and 25 ^th July 2019 were unlawful and that, consequently, his detention and removal to Iran were unlawful. He seeks orders quashing the two decisions, a mandatory order compelling the Defendant to use her best endeavours to return the Claimant to the UK, and damages. It was common ground that the claim for unlawful detention and removal cannot succeed unless the decisions were unlawful.

Legal framework

Deportation

The Defendant has the power to revoke a deportation order pursuant to section 5(2) of the Immigration Act 1971. The factors to be considered when deciding to revoke a deportation order are set out in paragraphs 390 and 390A of the Rules:

“390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:

(i) the grounds on which the order was made;

(ii) any representations made in support of revocation;

(iii) the interests of the community, including the maintenance of effective immigration control;

(iv) the interests of the applicant, including any compassionate circumstances.

390A Where paragraph 398 applies the Secretary of State 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 maintaining the deportation order will be outweighed by other factors.”

Paragraphs A398, 398, 399 and 399A provide for circumstances where deportation would be contrary to an individual's Article 8ECHR rights.

“A398. These rules apply where:

(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention;

(b) a foreign criminal applies for a deportation order made against him to be revoked.

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 and in the public interest 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) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

399. This paragraph applies where paragraph 398(b) or (c) applies if—

(a) the person has a genuine and subsisting parental relationshjp with a child under the age of 18 years who is in the UK and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; on

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or

(c) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.

399A. This paragraph applies where paragraph 398(b) or (c) applies if –

(a) the person has been lawfully resident in the UK for most of his life; and

(b) he is socially and culturally integrated in the UK; and

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”

Paragraphs 398, 399 and 399A reflect the provisions of section 117C of the 2002 Act.Section 117C provides that the deportation of foreign criminals is in the public interest, and that the public interest requires deportation of offenders whose period of imprisonment was more than twelve months but less than four years unless Exception 1 (lawful long-term residence, integration in the United Kingdom and significant obstacles to integration into the country of deportation) or Exception 2 (there was a genuine and subsisting relationship with a qualifying partner or child and the effect on them of deportation would be unduly harsh) applies.Section 117C(6) provides that, in respect of those 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 in Exceptions 1 and 2.

In NA (Pakistan) v. SSHD[2016] EWCA Civ 662 the Court of Appeal held that individuals who had been sentenced to terms of imprisonment of less than four years but more than twelve months could also rely on very compelling circumstances over and above the circumstances in exceptions l and 2. This is given effect by the current version of paragraph 398.

Paragraph 391 of the Immigration Rules provides for the continuation of a deportation order where a person has been deported:

“391. In the case of a person who has been deported following conviction for a criminal offence, the continuation of a deportation order against that person will be the proper course:

(a) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order when, if an application for revocation is received, consideration will be given on a case by case basis to whether the deportation order should be maintained, or

(b) in the case of a conviction for an offence for which the person was sentenced to a period...