LC (China) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick:,Lord Justice Ryder:,Mr. Justice David Richards |
| Judgment Date | 09 October 2014 |
| Neutral Citation | [2014] EWCA Civ 1310 |
| Docket Number | Case No: C5/2013/3584 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 October 2014 |
[2014] EWCA Civ 1310
Lord Justice Moore-Bick
Lord Justice Ryder
and
Mr Justice David Richards
Case No: C5/2013/3584
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge McGeachy
DA/01047/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Alexis Slatter (instructed by Maxwell Alves Solicitors) for the appellant
Mr. Neil Sheldon (instructed by the Treasury Solicitor) for the respondent
Hearing date: 24 th July 2014
This is an appeal against the decision of the Upper Tribunal dated 30 th September 2013 allowing the Secretary of State's appeal against the decision of the First-tier Tribunal, which had itself allowed the appellant's appeal against the decision of the Secretary of State to make a deportation order against him pursuant to section 32 of the UK Borders Act 2007.
The appellant is a national of the People's Republic of China who entered this country in February 2002. He formed a relationship with his current partner and their first child, a son, was born in January 2008. In July 2008 the appellant was granted indefinite leave to remain and his son was granted British citizenship in November that year.
On 15 th June 2010 the appellant was convicted on his own plea of two offences of robbery, for which he was sentenced on 30 th July 2010 to two terms of 5 years' imprisonment to be served concurrently. The robberies were of a serious nature. During the night the appellant entered a ground floor flat shared by two young women while they were asleep. Having woken them, he tied them both up, took their bank cards and frightened them into giving him the PIN numbers. One managed to wriggle free and was able to telephone the police, but when the appellant realised that she was free he tied her up again. He said that if she had called the police, he would kill her. She had in fact managed to call the police, who arrived to find the appellant still in the flat and in possession of the bank cards. The sentence reflected the fact that neither of the young women had been physically injured and that the appellant had pleaded guilty at the first opportunity.
On 3 rd February 2011, while the appellant was in prison, his partner gave birth to their second child, a daughter. His partner was granted indefinite leave to remain in October 2011 and at some stage their daughter was granted British citizenship.
On 6 th November 2012 the Secretary of State informed the appellant that she was obliged to make a deportation order against him under section 32(5) of the UK Borders Act 2007 unless he fell within any of the prescribed exceptions, which she did not consider to be the case. However, the appellant had a right to appeal against that decision, which he duly exercised and the matter came before the First-tier Tribunal for hearing in February 2013. Having considered the nature of the offence, the motivation for it, the likelihood of the appellant's re-offending, the circumstances likely to be faced by the family if they were to be removed to China and the best interests of the appellant's children, the tribunal concluded that removing him would amount to a disproportionate interference with their right to respect for family life and therefore allowed the appeal.
The Secretary of State appealed to the Upper Tribunal, which held that the First-tier Tribunal had made errors of law. The Upper Tribunal considered that the assessment of the competing factors made by the First-tier Tribunal had been too superficial and that as a result it had erred in three respects: in assessing the best interests of the children, in failing to approach correctly the weight to be attached to the appellant's offending, and in assessing the risk of his re-offending. The Upper Tribunal therefore decided to set aside the decision and re-make it and for that purpose it heard evidence from both the appellant and his partner before reaching its conclusion. On 30 th September 2013 it published its decision allowing the Secretary of State's appeal.
The grounds of appeal against the decision of the Upper Tribunal are that it was wrong to hold that the First-tier Tribunal had erred in law, alternatively, that it had itself made an error of law in failing to give sufficient weight to what was in the best interests of the appellant's children as well as to other factors, including the age at which the appellant had entered the United Kingdom, the date of the offences, his behaviour since committing the offences and his immigration history and that of his partner. Mr. Slatter, who appeared on the appellant's behalf, also submitted that the Upper Tribunal had no jurisdiction to consider any possible error on the part of the First-tier Tribunal other than its approach to assessing the children's best interests because that was the only point put forward by the Secretary of State in her reasons for seeking permission to appeal from its decision.
A Was the Upper Tribunal wrong to hold that the First-tier Tribunal had erred in law?
(i) Jurisdiction
It is convenient to dispose of the question of jurisdiction first. I am prepared to assume for the purposes of argument that Mr. Slatter was right in saying that the Upper Tribunal's jurisdiction is circumscribed by the reasons that the appellant relies on for challenging the decision of the First-tier Tribunal. Even so, I am unable to accept the next step in his argument for a number of reasons. The first is that the reasons given by the Secretary of State for appealing against the decision of the First-tier Tribunal were framed in terms broad enough to cover all the matters which she wished to, and did, pursue before the Upper Tribunal and which the tribunal dealt with in its decision. In particular, the contention that the First-tier Tribunal had failed to give proper consideration to the particular weight to be given to the appellant's offending was covered by paragraphs 2 and 3 of the reasons, which between them identified the argument that the tribunal had failed correctly to apply paragraphs 398–399A of the Immigration Rules. The tribunal's assessment of the risk of the appellant's re-offending, although not specifically mentioned, was part and parcel of that exercise. The tribunal's assessment of the best interests of the appellant's children was squarely challenged in paragraph 4. Accordingly, there is no substance in the suggestion that the errors of law found by the Upper Tribunal had not been fairly raised.
Quite apart from that, however, it is apparent from the terms of the Upper Tribunal's decision that it was never suggested in argument that its jurisdiction was limited to considering the First-tier Tribunal's assessment of the children's best interests. There was a hearing before the Upper Tribunal on 23 rd July 2013 to consider whether the decision of the First-tier Tribunal contained material errors of law, at which the appellant was represented by solicitors and counsel. At the end of the hearing the tribunal informed the parties that it had found errors of law in the decision of the First-tier Tribunal and I find it impossible to believe that those errors had not been fully canvassed in argument. There was no suggestion that the tribunal might be about to exceed its jurisdiction, which reflects the fact that the reasons for appealing were framed in terms that were broad enough to cover all the matters which the Secretary of State wished to pursue. No doubt for the same reason, the argument that the Upper Tribunal had exceeded its jurisdiction did not form any part of the grounds of appeal to this court. For all these reasons I am satisfied that there is nothing in this point.
(ii) The application of the Immigration Rules
It is convenient to consider this ground first. Paragraphs 398 and 399 of the Immigration Rules provide as follows:
"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 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 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 Secretary of State in assessing that claim 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 deportation will be outweighed by other factors.
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) …
and in either case
(a) it would not be reasonable to expect the child to leave the UK; and
(b) there is no other family member who is able to care for the child in the UK; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, [or is] settled in the UK …"
Paragraph 399A is concerned with long residence and is not relevant to this case.
Having referred to paragraphs 398–399A of the Immigration Rules, the First-tier Tribunal correctly noted that paragraphs 399 and 399A did not apply...
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