Logan Reid v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Edis,Lord Justice Newey,Lord Justice Bean |
| Judgment Date | 26 July 2021 |
| Neutral Citation | [2021] EWCA Civ 1158 |
| Docket Number | Case No: C5/2020/2035 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1158
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Lane
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Lord Justice Newey
and
Lord Justice Edis
Case No: C5/2020/2035
Jonathan Holt (instructed by TMC Solicitors) for the Appellant
Jack Anderson (instructed by Government Legal Department) for the Respondent
Hearing date: 30 June 2021
Approved Judgment
This is an appeal by Logan Reid from a decision of the Upper Tribunal (Immigration and Asylum Chamber), “ the UT”. Mr. Reid was referred to by his initials only further to anonymity orders made in the Tribunals below, but Mr. Jonathan Holt, who appeared for him on this appeal, accepted that there was no good reason for this to continue and those orders are discharged.
The Secretary of State for the Home Department, “ the Home Secretary”, decided on 20 February 2017 to deport Mr. Reid to Jamaica. On 12 October 2017 she refused his human rights claim. The First-tier Tribunal (Immigration and Asylum Chamber), “ FTT”, allowed his appeal against that second decision of the Home Secretary. The UT allowed the Home Secretary's appeal, set aside the FTT's decision and remade the decision and dismissed Mr. Reid's appeal from the refusal of his human rights claim. The result was that the deportation decision stood. The FTT's decision was promulgated on 30 April 2018, and the UT's decision was promulgated on 18 September 2019.
The decision to deport was made pursuant to section 3(5)(a) of the Immigration Act 1971 on the ground that Mr. Reid's deportation was conducive to the public good because he was convicted on 5 January 2005 of seven offences including possession of a firearm and ammunition and was sentenced to 2 1/2 years' imprisonment. He had applied on 27 October 2015 to remain in the United Kingdom on the basis of his family life and responded to the deportation decision by relying on that claim. He said that it would breach his right under Article 8 of the European Convention on Human Rights to respect for his family and private life to deport him and it is the refusal of that claim which is the subject of these proceedings. His right of appeal arises under section 82(1) of the Nationality, Immigration and Asylum Act 2002. Judicial Review proceedings had been necessary to produce a decision from the Home Secretary which carried this right of appeal. It is unnecessary to set out the procedural history with any greater detail.
The Facts
Mr. Reid is a national of Jamaica, born on 2 January 1970. He claims to have entered the UK illegally in October 1994. He used a false British passport in the name of Clefton George Morrison. He was detained in March 1996, and removed from the UK on 5 April 1996. At that time, he was calling himself Derek Elvin Mogg. He re-entered the UK in May 1996, again using the Morrison passport. He was arrested in August 1997 and convicted on 2 February 1998 of two offences of possessing a controlled drug. A deportation order was made on 14 April 1998, but he left the UK voluntarily in June 1998, only to return, again using a false passport, later that month. He was deported again in October 1998, returning again in September 1999. After the 2005 conviction, he was apprehended in July 2010. From 2010 he was required to report but absconded and failed to report from November 2016. The 1998 deportation order has never been withdrawn.
The human rights claim was based on his established family life in the UK. There has never been any challenge to the proposition that he has such an established family life here. He has two sons, one born in September 1999 and one in October 2001. He has been separated from their mother since 2006. She had another child born in August 2009 with whom Mr. Reid has a close relationship. All three children are British citizens. The FTT heard evidence from members of this family, orally and in writing. There was also an Independent Social Worker Report from Stephanie Prempeh dated 1 August 2017.
The relevant Statutes, Rules and Convention
It is necessary to set out these materials in full, except that I shall not set out section 55 of the Borders, Citizenship and Immigration Act 2009. This requires the Home Secretary to carry out certain functions having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. It means that the best interests of a qualifying child are a primary consideration in carrying out those functions. The provisions in play in this appeal are designed to provide a framework to ensure that decisions are taken having regard to that fact. They are complex, and the relationship between the statutes and the Immigration Rules (“ the Rules”) (made by the Home Secretary under the Immigration Act 1971) can only be appreciated by having the text of all provisions in mind. Their effect is to enshrine in law the importance in the public interest of the deportation of foreign criminals, and to require the FTT to uphold deportation orders except in defined classes of case. The definition of those classes has been problematic, but the statutory purpose and the Home Secretary's purpose in making the relevant parts of the Rules is clear. In setting the provisions out, I have underlined the critical provisions which apply in this case. Mr. Reid is a foreign criminal, and it is not necessary to emphasise the definition provisions which give rise to that finding, which is not disputed. At the material time, the date of the FTT decision, he had a genuine and subsisting parental relationship with one qualifying child which was the basis of his human rights claim. This also is not disputed. He does not claim that he has ever spent any time in the UK lawfully.
Section 32 of the United Kingdom Borders Act 2007 ( “the 2007 Act”) provides as follows:
(1) In this section “foreign criminal” means a person–
(a) who is not a British citizen or an Irish 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 .
(3) Condition 2 is that–
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(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 section 33) .
(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.
(7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.
Section 33 of the 2007 Act provides, in relevant part, as follows:
(1) Section 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 the 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.
Part 5A of the Nationality, Immigration and Asylum Act 2002 (the “ 2002 Act”) informs the approach to be taken when the question is whether Exception 1 under s. 33 of the 2007 Act applies, and, in particular, to the question whether a decision made under the Immigration Acts (such as a decision to deport a foreign criminal) breaches or would breach an individual's rights under Article 8 of the European Convention on Human Rights ( “ECHR”). Sections 117A-117D, which make up Part 5A, provide as follows:
Section 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 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...
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