HA (Iraq) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lady Justice Black,Lord Justice Richards |
| Judgment Date | 22 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1304 |
| Docket Number | C5/2013/1093 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 2014 |
[2014] EWCA Civ 1304
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Sullivan
Lady Justice Black
Lord Justice Richards
C5/2013/1093
Mr D Seddon (instructed by Wilsons Solicitors LLP) appeared on behalf of the Appellant
Mr N Sheldon (instructed by Treasury Solicitors) appeared on behalf of the Respondent
This is an appeal by the Secretary of State against the determination dated 5 February 2013 of the Upper Tribunal (Immigration and Asylum Chamber) allowing HA's appeal against the determination dated 9 February 2011 of the First Tier Tribunal which had dismissed his appeal against the Secretary of State's decision dated 6 October 2010 to make an automatic deportation order against him under section 32(5) of the UK Borders Act 2007.
The Upper Tribunal allowed HA's appeal on Article 8 grounds only. It rejected his appeal on asylum and humanitarian protection grounds and there is no challenge by HA to those aspects of the Upper Tribunal's determination. Before the Upper Tribunal, the Secretary of State had conceded that the First Tier Tribunal had made a material error of law such that its determination had to be set aside and a fresh decision made by the Upper Tribunal.
Background
The factual background is set out in some detail in the Upper Tribunal's determination. In brief, HA, who is an Iraqi national born on 1 July 1976, claimed to have arrived in the United Kingdom some time in 2000. He made an asylum claim in 2002 which was rejected and the appeal was dismissed. However, he remained in the United Kingdom without leave and was fined for possessing Class A and C drugs in 2005. On 4 December 2006, he was convicted on two counts of possessing Class A drugs with intent to supply and sentenced to four years' imprisonment. His appeal against conviction was dismissed.
HA's Article 8 appeal was based in large measure on his long standing relationship with his fiancé, CH, who is a British citizen. She gave evidence before the Upper Tribunal. The Upper Tribunal concluded that she was "a very impressive witness", that their relationship was a genuine one and that it would not be reasonable to expect her to remove to Iraq: See paragraphs 88 and 94 of the determination. The Upper Tribunal said in paragraph 89 that, "This case is really about the operation of Article 8 of the European Convention on Human Rights."
The Upper Tribunal's reasoning
In paragraph 95 the Upper Tribunal said:
"I have to decide if the interference in the private and family life consequent on removal is proportionate for the proper purpose of deporting foreign criminals for the purposes of the prevention of disorder and crime. I have to do that knowing that it is unlikely that this Appellant will commit further offences. The point is the deterrent effect or general expression of society's disapproval of foreign criminals rather than preventing further trouble from this particular man. That is important in this case."
The Upper Tribunal then said in paragraph 96:
"Clearly there is an interest in his being removed. Parliament says so in section 32(5) of the UK Borders Act 2007. I recognise that and, as I must, I respect that."
The Upper Tribunal then considered various matters, including the fact that removing HA would break the relationship between him and CH and that HA had not been in trouble for not far short of seven years. Then in paragraph 100, the Upper Tribunal said:
"As [counsel then appearing for HA] properly reminds me, amongst the things I have to consider in a case such as this are the Appellant's social, cultural and family ties both with the United Kingdom and the country of destination. ( Maslov v Austria, application number 1638/03). The Appellant has built up significant ties in the 12 years or so that he has been in the United Kingdom. He does not have strong links with Iraq. I accept the evidence he has no family there and he has not lived there very much since he was a boy of 12. Whilst I am satisfied on the evidence that he is a national of Iraq, he would not be returned to a country where he would seamlessly be reestablished with the help of family or where he has lived as an adult. This is not determinative, but it is a factor against removal."
In paragraph 101, the Upper Tribunal said that CH was not involved in any way with HA's criminal behaviour. Their relationship had been established before he got into trouble. The Upper Tribunal added:
"She has clearly allowed herself to become more committed to a man who has committed very serious criminal offences, but he is also a man who has made determined efforts to put aside his criminal offending."
The core of the Upper Tribunal's reasoning on the proportionality issue is contained in paragraph 102 of the determination:
"Whilst I do find the Appellant's length of stay in the United Kingdom and his positive attitude to future behaviour significant factors to weigh in the balance against the imperative of removal, it is the combination of these things with the considerable effect that removal would have on Miss H and indeed the Appellant that I find compelling. Destroying an important relationship in the light of a reformed criminal who was last in trouble over six years ago is, I find, just too much and I am satisfied that an exception is made out."
Importantly, the Upper Tribunal added this in paragraph 103 of the determination:
"I do not arrive at this conclusion by considering the Rules in their amended form which purports to introduce aspects of Article 8 expressly into the Rules. They do not assist me with a proper application of the Appellant's human rights. My decision is in accordance with binding jurisprudence and I allow the appeal on human rights grounds only."
The Secretary of State's grounds of appeal
On behalf of the Secretary of State, Mr Sheldon appeals against the Upper Tribunal's determination on four grounds.
They are, in summary; one, the Upper Tribunal expressly failed to have any regard to the new Immigration Rules 398, 399 and 399A which deal with the deportation of foreign criminals and Article 8. The new Rules reflected the view of Parliament as to the weight to be attached to the public interest in deportation and were at the very least highly material to any Article 8 proportionality assessment.
Two, the Upper Tribunal failed to recognise the importance of the public interest in deporting foreign criminals and/or failed to give that interest special weight as required in its proportionality assessment.
Three, the Upper Tribunal had failed properly to apply the criteria set out in Uner v The Netherlands [2007] 45 EHRR 14. While the Upper Tribunal's reference to Maslov was inapt because HA had not arrived in the United Kingdom until he was an adult, that would not have been a material error if the Tribunal had properly applied the Uner criteria. In his skeleton argument, Mr Sheldon submits that the Upper Tribunal had erroneously treated the fact that HA was in a long term relationship with CH as a "trump card" which overrode all of the other considerations that are listed in Uner.
Four, the Upper Tribunal's determination is perverse and no reasonable Upper Tribunal could have concluded that the fact that HA had a long term girlfriend and kept out of trouble since leaving prison amounted to very compelling reasons which outweighed the strong public interest in deporting foreign criminals.
In support of his submissions, Mr Sheldon referred us to a number of authorities. At this stage of the judgment, it is helpful to refer to just two of them: MF (Nigeria) v Secretary of State for the Home Department [2013] EWHC Civ 1192 and SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; [2014] 1 WLR 998. Both of these authorities postdated the Upper Tribunal's determination in the present case.
In MF (Nigeria) this court dealt with a number of questions that have been raised as to the proper interpretation of the new Rules. The Master of the Rolls, giving the judgment of the court, said this in paragraphs 40 to 43:
"40. Does it follow that the new rules have effected no change other than to spell out the circumstances in which a foreign criminal's claim that deportation would breach his article 8 rights will succeed? At this point, it is necessary to focus on the statement that it will only be "in exceptional circumstances that the public interest in deportation will be outweighed by other factors". Ms Giovannetti [who appeared for the Secretary of State in that case] submits that the reference to exceptional circumstances serves the purpose of emphasising that, in the balancing exercise, great...
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