IT (Jamaica) v Secretary of State for the Home Department
Jurisdiction | England & Wales |
Judge | Lady Justice Arden,Lord Justice Jackson,Lady Justice Gloster |
Judgment Date | 02 September 2016 |
Neutral Citation | [2016] EWCA Civ 932 |
Docket Number | Case No: C5/2015/0942 |
Court | Court of Appeal (Civil Division) |
Date | 02 September 2016 |
[2016] EWCA Civ 932
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Upper Tribunal
(Immigration and Asylum Chamber)
Judge Poole
DA/01038/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Jackson
and
Lady Justice Gloster
Case No: C5/2015/0942
Sarabjit Singh (instructed by Government Legal Department) for the Appellant
Christian Howells (instructed by NLS Solicitors) for the Respondent
Hearing date: 7 July 2016
Approved Judgment
ISSUE: WEIGHT TO BE GIVEN TO THE PUBLIC INTEREST IN AN APPEAL AGAINST A REFUSAL TO REVOKE A DEPORTATION ORDER AGAINST A FOREIGN CRIMINAL
This appeal from the Upper Tribunal's determination dated 12 January 2015, dismissing an appeal from the determination of the First-tier Tribunal ("FTT") dated 5 September 2014, raises the question of the weight to be given to the public interest when a deportee applies for revocation of a deportation order made against him. On it depends the further question of what the deportee must show to displace that public interest and in turn what he must demonstrate to a tribunal to succeed on any appeal from the Secretary of State's refusal to revoke that order.
In this case, the appellant, A, was deported under section 32 of the UK Borders Act 2007 ("the Borders Act") in 2010 following his conviction for a serious criminal offence for which he was sentenced to 42 months' imprisonment. The Secretary of State has refused to revoke that order so that he can return to the UK to live with his wife and son. The FTT allowed A's appeal and the Upper Tribunal dismissed a further appeal. It is effectively common ground that, under section 117C of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), the deportation order may only be revoked if its retention is determined to be "unduly harsh", but there is a dispute between the parties as to the weight to be given in that determination to the public interest in deporting foreign criminals who have committed serious offences and to whether the tribunals followed the right approach in this case.
For the reasons given below, in my judgment, the undue harshness standard in section 117C of the 2002 Act means that the deportee must demonstrate that there are very compelling reasons for revoking the deportation order before it has run its course. Section 117C is to be read in the context of the Immigration Rules which make that clear. The tribunals in this case recognised the role of the public interest but fell into error because they did not direct themselves as to the weight to be given to it in balancing it against the interests of the applicant and others.
I start by considering the circumstances leading to A's application for revocation of the deportation order made against him, the relevant legislative framework and then the determinations of the FTT and the Upper Tribunal. After that I will consider the submissions and state my detailed reasons.
RELEVANT LEGISLATIVE FRAMEWORK
Under section 32 of the Borders Act the Secretary of State is obliged to order a person convicted of a specified offence and sentenced to more than 12 months' imprisonment to be deported from the UK on completion of his sentence, unless (among other matters) his Convention rights would be violated (Borders Act, section 33).
The Secretary of State may not revoke a deportation order save in certain cases: see section 32(6) of the Borders Act, which provides:
(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless–
(a) he thinks that an exception under section 33 applies,
(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or
(c) section 34(4) applies.
The Immigration Rules deal with applications for revocation of a deportation order. In so doing they make provision for the application of Article 8 of the European Convention on Human Rights ("the Convention"). This will arise if a foreign criminal contends that the maintenance of the deportation order will constitute a disproportionate interference with his right to respect for his family or private life.
The relevant Immigration Rules, in force at the date that the FTT promulgated its decision on 9 September 2014, provided (in so far as is relevant):
Revocation of deportation order
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 an 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.
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, or
(b) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of at least 4 years, at any time,
Unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors.
391A. In other cases, revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.
…
Deportation and Article 8
A398. These rules apply where:
…
(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
…
(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…
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 relationship 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; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) 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."
Section 117C of the 2002 Act, which applied to Tribunal decisions as of the 28 July 2014, states:
117C Article 8: additional considerations in cases involving foreign criminals
(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.
… [exception 1, not relevant]
(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…."
'Qualifying child' is defined in section 117D(1) as including a British citizen under the age of 18.
A'S CONVICTION, DEPORTATION AND APPLICATION FOR REVOCATION
A is a Jamaican national. He was born on 28 February 1966. He entered the UK in 1998 and resided here until his...
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