KM v Secretary of State for the Home Department

Hearing date: 21 April 2021

Judgment Approved by the court for handing down

This case raises issues regarding the application of sections 117A, B and C of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) in relation to serious foreign criminals.

The Appellant challenged a deportation order by the Respondent (“Secretary of State”) before the First-Tier Tribunal (“FTT”) and the Upper Tribunal (“UT”). The Appellant appeals two decisions by the UT:

(1) Firstly, a decision promulgated on 12 ^th July 2019, whereby the UT found that the FTT had erred in law, set aside the FTT decision and ordered a re-hearing of certain issues by the Upper Tribunal (“Error of law Judgment”).

(2) Secondly, a decision promulgated on 18 ^th December 2019, whereby the UT conducted a re-hearing and dismissed the Appellant's appeal from the Secretary of State's decision to refuse the Appellant's human rights claim and deport him from the UK (“Substantive Judgment”).

The Facts

The Appellant was born on 13 ^th September 1991 and is a Zimbabwean national. He arrived in the UK with his family on 16 ^th September 2002, aged 11. The Appellant was treated as a dependent of his parents. The Appellant was given leave to enter until 28 ^th August 2003. His parents were granted three years' discretionary leave to remain on 15 ^th August 2003. The Appellant and his family members' discretionary leave was subsequently extended until 2013.

The Appellant met E in 2008. In 2011, the Appellant and E started co-habiting. The Appellant worked as a decorator, while E studied for a degree in social work. E now works as a social worker. In June 2012, the couple had a son, Y, who is now around 8 years old.

The Appellant's criminal activities started in 2005, aged 14. On 12 ^th October 2005, he was cautioned for assault occasioning actual bodily harm. On 12 ^th April 2007, he was convicted for robbery. In July 2008, he was convicted of failure to surrender to custody and in October 2008 for theft of a vehicle. In 2011, he was convicted of various driving offences and possession of Class A drugs. In 2012, he was again convicted of various driving offences, possession of Class B drugs and failing to comply with a community order. These offences resulted in noncustodial sentences.

The Appellant's parents and siblings were granted indefinite leave to remain (“ILR”) in January and March 2013. However, due to his criminal offending, the Appellant was only granted discretionary leave to remain until 2 ^nd January 2016.

On 7 ^th October 2013, the Appellant, aged 21, was convicted after a trial for an aggravated burglary committed with others. The victims were at home and violence was used. They were severely traumatised by the offending. There was a significant degree of planning. He was equipped with a knife, blindfolds and cable ties. The sentencing judge found the offence was within the highest category of the sentencing guidelines and imposed a sentence of ten years imprisonment. The Appellant appealed his sentence but the sentence was upheld by the Court of Appeal Criminal Division.

Whilst in prison, the Appellant married E in 2015. On 30 ^th December 2015, the Appellant submitted an application for ILR based on his ten years' lawful residence in the UK. This application was subsequently refused by the Secretary of State in a Deportation Notice (see further below).

On the 17 ^th August 2018, the Appellant was released from prison. He was initially required to reside in a bail hostel on release, but on 17 ^th November 2018 was allowed by the Probation Service to return to the family home. He remains on licence and has been fully compliant.

On 30 ^th September 2016, the Secretary of State issued a notice to the Appellant as to his liability for deportation (“Deportation Notice”). As a foreign criminal as defined by s. 32(1) of the UK Borders Act 2007, the Appellant faced deportation under s. 32(5) of the 2007 Act unless one of the exceptions in s. 33 applied (see below).

In submissions dated 28 ^th December 2016, the Appellant claimed that deportation would constitute a disproportionate interference with the right to respect for his private and family life under Article 8 of the ECHR.

On 24 ^th April 2017, the Secretary of State refused the Appellant's human rights claim and informed him of her decision to proceed with his deportation (“Refusal Decision”).

The Appellant subsequently appealed the Refusal Decision to the FTT. The appeal was heard on the 9 ^th and 10 ^th October 2018 before First-Tier Tribunal Judge Neville. The FTT dismissed the Appellant's appeal in a judgment promulgated on 27 ^th February 2019 (“FTT Judgment”).

The Appellant then appealed the FTT decision to the UT. The hearing was held on the 10 ^th June 2019 before Upper-Tribunal Judge Reeds and Upper-Tribunal Judge Plimmer. The UT decision, promulgated on 12 ^th July 2019, found that the FTT had erred in law and set aside the FTT Judgment and ordered a re-hearing (“Error of law Judgment”).

The re-hearing took place on the 4 ^th December 2019 before Upper-Tribunal Judge O'Connor and Upper-Tribunal Judge Plimmer. By a decision dated the 18 ^th December 2019, the UT dismissed the Appellant's appeal (“Substantive Judgment”).

The UT refused permission to appeal to the Court of Appeal on 16 ^th March 2020. Permission to appeal was subsequently granted by the single judge on 30 ^th November 2020.

It is necessary to set out the three judgments in some detail (see further below). I turn first to set out the relevant statutory provisions.

The Law

The Statutory Provisions

Section 32 of the UK Borders Act 2007 (“the 2007 Act”) concerns automatic deportation of certain foreign criminals and, so far as relevant, provides:

“(1) In this section ‘foreign criminal’ means a person –

(a) who is not a British Citizen,

(b) who is convicted in the United Kingdom of an offence, and

(c) to whom Condition 1 or 2 applies.

(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

…

(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.

(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to s.33).”

Section 33 of the 2007 Act concerns exceptions to automatic deportation and, so far as relevant, provides:

“(1) Sections 32(4) and (5) –

(a) do not apply where an exception in this section applies (subject to subsection (7) below), and

(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).

(2) Exception 1 is where removal of a foreign criminal in pursuance of the deportation order would breach –

(a) a person's Convention rights, or

(b) the United Kingdom's obligations under the Refugee Convention.

…

(7) The application of an exception—

(a) does not prevent the making of a deportation order;

(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;

but section 32(4) applies despite the application of Exception 1 or 4.”

Sections 117A-D of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) fall under Part 5A of the Act entitled “ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS” and provide for a series of statutory considerations when considering deportation action.

Section 117A of the 2002 Act provides:

“ 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)”

Section 117B of the 2002 Act, so far as relevant, provides:

“ 117B Article 8: public interest considerations applicable in all cases

(1) The maintenance of effective immigration controls is in the public interest.

…

(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. …”

Section 117C of the 2002 Act, so far as relevant, provides:

“ 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...