Kennedy Mwesezi v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd,Lord Justice Sales,Lord Justice McFarlane |
| Judgment Date | 15 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1104 |
| Date | 15 May 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/0132 |
[2018] EWCA Civ 1104
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM)
DA017432014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lord Justice Floyd
and
Lord Justice Sales
Case No: C5/2016/0132
Duran Seddon and Ali Bandegani (instructed by Wilson Solicitors LLP) for the Appellant
Lisa Giovannetti QC and Neil Sheldon (instructed by the Government Legal Department) for the Respondent
Hearing date: 2 May 2018
This appeal relates to the deportation of an individual who is a foreign criminal for the purposes of the United Kingdom's immigration regime. The appellant came to the United Kingdom as a child of two. His father, brother and half-sister are here. He committed serious offences when aged 23, for which the Secretary of State wishes to deport him. The critical question in this case is whether there are “very compelling circumstances” such as to prevent the deportation of the appellant by reason of his rights under Article 8 of the European Convention on Human Rights (respect for family and private life): see section 117C(6) of the Nationality, Immigration and Asylum Act 2002. This is a second appeal which has been outstanding for some time. In the meantime, the relevant principles of law have been clarified in other cases. The court is now required to apply the principles laid down in those cases.
Part 5A of the 2002 Act was inserted by amendment in July 2014, at the same time as corresponding new Immigration Rules were promulgated, including at paras. 398 to 399A so far as relevant to foreign criminals. Part 5A and the new Rules are designed to structure consideration by the Secretary of State, tribunals and courts of claims based on Article 8 in cases concerning entry into or removal from the United Kingdom. Part 5A provides in relevant part as follows:
“ PART 5A
ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS
117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering 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.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
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.
(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 considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
117D Interpretation of this Part
(1) In this Part—
“Article 8” means Article 8 of the European Convention on Human Rights;
“qualifying child” means a person who is under the age of 18 and who—
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;
“qualifying partner” means a partner who—
(a) is a British citizen, or
(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33(2A) of that Act).
(2) In this Part, “foreign criminal” means a person—
(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(c) who—
(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.
…”
Factual background and the tribunal decisions
The appellant is a national of Uganda, born on 9 November 1987. His father came to this country from Uganda and was granted exceptional leave to remain and subsequently granted indefinite leave to remain here. The appellant followed here with his mother and a brother, when the appellant was aged two. His mother was granted exceptional leave to enter. The appellant's parents later separated. His mother had a daughter, who is the appellant's half-sister. His mother died in 1994 and the children were then brought up by their grandmother, who was also from Uganda. The appellant was granted indefinite leave to remain in 2001. The appellant's father, brother and half-sister are now all British citizens.
In the period 2003 to 2011, the appellant committed nine offences, including driving offences, failure to surrender to bail and making a false statement to obtain insurance. His sentences did not involve imprisonment.
In September 2011 the appellant was charged with possession of a prohibited weapon (a disguised firearm) and live ammunition held without a certificate. While held on remand he was diagnosed as suffering from bi-polar affective disorder and was put on a course of medication which he continues to take. On 9 February 2012, after a trial, the appellant was convicted of the offences charged and was sentenced to imprisonment for six years on the first offence and for a concurrent period of two years on the second. Plainly this was very serious offending. Mr Seddon, for the appellant, accepted that the judge in the First-tier Tribunal (“FTT”) was right to characterise this offending as “of extreme seriousness”.
By a decision dated 5 September 2014 the Secretary of State indicated that she proposed to make a deportation order in respect of the appellant by virtue of section 32(5) of the UK Borders Act 2007. In the Secretary of State's view, there was no impediment to the deportation of the appellant to Uganda by reason of his Convention rights under the Human Rights Act 1998. Although he had spent almost all his life in the United Kingdom, spoke only English and had only been to Uganda a couple of times on family holidays, he had been brought up in a Ugandan household and hence had absorbed some understanding of Ugandan culture. He was a fit young man with a university education who could be expected to make a new life for himself in Uganda. He would go on receiving appropriate medical treatment in Uganda for his bi-polar disorder. The appellant had not shown that there were very compelling circumstances within section 117C(6) to prevent his removal.
The appellant appealed to the FTT. The FTT heard evidence from him and his relations. It made careful and even-handed findings of fact. It found that the appellant does not have any significant family relationships in Uganda. It accepted that he suffers from bi-polar affective disorder. The FTT found that, despite the appellant's protestations to the contrary, he did not truly or genuinely feel remorse for his firearm and ammunition offences. It also found that he lied about his motivation for the...
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