MA (Pakistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Lord Justice Lindblom |
| Judgment Date | 18 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1252 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2017/3163 |
| Date | 18 July 2019 |
[2019] EWCA Civ 1252
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Upper Tribunal Judge Kebede
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon
and
Lord Justice Lindblom
Case No: C5/2017/3163
Mr Ramby de Mello (instructed by Fountain Solicitors) for the Appellant
Mr Marcus Pilgerstorfer (instructed by Government Legal Department) for the Respondent
Hearing date: 16 May 2019
Approved Judgment
Introduction
This is an appeal from the decision of the Upper Tribunal (Asylum and Immigration Chamber), promulgated on 4 September 2017, in which UT Judge Kebede dismissed the appellant's appeal against a decision of the First Tier Tribunal (Judge Gribble), dated 29 May 2017. The FtT had dismissed the appellant's challenge to a decision of the respondent contained in a letter dated 9 August 2016, refusing the appellant's human rights claim and maintaining a decision to deport him.
History
In order to understand the issues that arise on the appeal, it is necessary to summarise some of the background to the appellant's immigration history.
He married SB, a British citizen, in October 1996. In February 1998, he came to this country on a spousal visa. He has remained here since then. The couple have six children, the youngest of whom was born in November 2016.
In December 2005, the appellant's application for naturalisation was refused. This was because he had failed to inform the Home Office that he had become involved in a police enquiry into a fatal assault. In April 2006, he was convicted at Birmingham Crown Court of the manslaughter of Qamar Zaman. For this offence he was sentenced to a term of 4 years imprisonment. The two men had been involved in an altercation in a public park, both had left after being separated and had then returned. The appellant had armed himself with a screw-driver. While holding his victim in a head-lock, the appellant struck him in the eye with the screwdriver causing his death. The sentencing judge approached the sentence on the basis that the appellant did not intend either to kill or cause really serious harm, since the jury had acquitted him of murder, and on the basis that he had not intended to stab his victim in the eye. ‘It was a misfortune that when [the appellant] struck out with the screwdriver it went into that particularly sensitive part of the [victim's] face.’
In October 2007, the respondent served the appellant with a notice of intention to deport him. In February 2008, the appellant's appeal against the deportation on asylum and human rights grounds was dismissed. His subsequent challenges on legacy and compassionate grounds were also dismissed.
He then appealed against the respondent's refusal to revoke the deportation order on human rights grounds. In December 2011, the FtT allowed his appeal; and in June 2012, the Upper Tribunal dismissed the respondent's appeal.
On 27 October 2012 the respondent wrote to the appellant in the following terms:
I am writing to inform you that the Secretary of State has taken note of your conviction on 10 April 2006 at … for Manslaughter. The Secretary of State takes a serious view of your conduct and, in the light of your conviction, she has given careful consideration to your immigration status and the question of your liability to deportation.
In all the circumstances, however, the Secretary of State has decided not to take any deportation action against you on this occasion, but you should clearly understand that the provisions of the Immigration Act 1971 as amended by the Immigration and Asylum Act 1999 relating to deportation continue to apply to you. Under these provisions a person who does not have the right of abode is liable to deportation if the Secretary of State deems his deportation to be conducive to the public good or if he is convicted of an offence and is recommended for deportation by a court.
I should warn you therefore that if you should come to adverse notice in the future, the Secretary of State will be obliged to give further consideration to the question of whether you should be deported. If you commit a further offence, and are over 18 years of age, the Secretary of State would also need to consider the automatic deportation provisions of the UK Borders Act 2007. You should be aware that under such circumstances, the Secretary of State may be legally obliged to make a deportation order against you.
It will be necessary to consider later in this judgment the legal effect of this letter.
The appellant was given six months' discretionary leave to remain, which was subsequently extended. However, in March 2015, he was notified that the respondent was considering issuing him with a deportation order and was invited to make representations in response.
Having considered those representations, the respondent wrote on 9 August 2016 refusing the appellant's application for further leave to remain and his human rights claim, and maintained the decision to deport him.
The appellant appealed, as he was entitled, against the human rights decision under s.82(1) of the Nationality Immigration and Asylum Act 2002 (the ‘NIAA 2002’).
The hearing before the FtT
The hearing took place in Birmingham before Judge Gribble (‘the Judge’). Her decision is clear and comprehensive. She set out the background and the material filed by each side (§§1–16), as well as the reasons underlying the 9 August 2016 decision letter. She set out the law that applied (§§24–33), and summarised the evidence of the appellant, his wife and children, as well as the submissions made on his behalf (§§34–50).
Before the FtT, a number of arguments had been raised in support of the appeal of which it is only necessary to mention the six which formed the basis of the grounds of appeal before us. For convenience the relevant statutory provisions and Immigration Rules are set out in an appendix to this judgment.
Ground 1 was founded on a contention that the deportation order was unlawful since it was in respect of a conviction that pre-dated the coming into force of ss.116–117C of the NIAA 2002. It was argued that in circumstances where following adverse decisions in the FtT and UT the respondent decided not to deport the appellant, a subsequent decision to rely on his deportation as being conductive to the public good, see s.3(5)(a) of the Immigration Act 1971, was perverse and unlawful.
Ground 2 was an argument that the letter of 22 October 2012 raised a legitimate expectation that, unless he committed a further offence, the appellant would be allowed to remain in this country. He had not committed any further offences and it followed that he should be allowed to remain.
Ground 3 relied on paragraph 399C of the Immigration Rules, which provides:
Where a foreign criminal who has previously been granted a period of limited leave under this Part applies for further limited leave or indefinite leave to remain his deportation remains conducive to the public good and in the public interest notwithstanding the previous grant of leave.
The argument was that this is a free-standing provision; and the respondent had failed to show that the appellant's deportation was in the public interest in the light of the previous grants of leave to remain.
Ground 4 (ground 6 in the FtT and UT) was based on section 117C of the NIAA 2002, which provides:
(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.
The argument was that appellant's circumstances were such that there were very compelling circumstances over and above those described in exceptions 1 and 2.
Ground 5 (ground 7 before the FtT and UT) was that the respondent had failed properly to consider the best interests of the appellant's children, and in particular his youngest child, as required by s.55 of the Borders, Citizenship and Immigration Act 2009.
Ground 6 (ground 8 in the tribunals) was an argument that the respondent had failed to apply the law as set out in Ali (Hesham) v. Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799 and particularly the judgment of Lord Reed at [50].
The FtT findings
The Judge made the following material findings.
The appellant had rightly accepted that he was a ‘foreign criminal’ to whom s.117C of the NIAA 2002 applied. Paragraph 399C of the Immigration Rules was not a freestanding provision but had to be read with the other Rules introduced in 2014. It was clear from their context that they had to be read together, and the appellant had not identified any authority to the contrary.
The only legitimate expectation the appellant had was that he would be granted further periods of leave to remain in the UK in accordance with the law as it stood at any particular time. The respondent's letter of 27 October 2012 was clear in its terms: the appellant's deportation remained conducive to the public good and any grant of leave would be reviewed every six months.
The respondent's August 2016 decision was not a second punishment such as to engage the ne bis in idem principle. It was a decision based on a change in the law, in respect of which the position had been reserved in the 27 October 2012 letter.
The Judge considered the factors set out at s.117B Article 8: public considerations applicable in all cases, and subsection (1) which provides that the maintenance of effective immigration control is in the public interest. She then considered s.117C and the additional considerations which apply in...
To continue reading
Request your trial
-
OH (Algeria) v The Secretary of State for the Home Department
...“very compelling circumstances” test was inapplicable, it might properly be argued that deportation was “unduly harsh” by reference to MA (Pakistan) [2018] 1 WLR 5273 1. Since the latter ground is contingent on the former, it is helpful to begin with Ground 3, the approach in Johnson. Grou......
-
Upper Tribunal (Immigration and asylum chamber), 2019-12-02, PA/07974/2018
...the matter was set down before myself. Furthermore, there was also a relevant decision of the Court of Appeal in MA (Pakistan) v SSHD [2019] EWCA Civ 1252 handed down on 18 July At that hearing the respondent was represented by Ms Petterson and not the previous presenting officer. That did ......
-
The Queen (on the Application of Peters Bimbola Abidoye) v The Secretary of State for the Home Department
...a fresh decision to deport him on essentially the same facts. 4 The appellant faces the major obstacle that in MA (Pakistan) v Secretary of State for the Home Department [2019] EWCA Civ 1252, (“ MA (Pakistan)”) on facts which are accepted to be indistinguishable in all material respects, a......
-
Upper Tribunal (Immigration and asylum chamber), 2021-05-10, HU/21496/2018
...harsh for the Appellant’s partner to remain in the UK without the Appellant. Mr Plowright accepted that, following MA (Pakistan) [2019] EWCA Civ 1252, the decision to refuse the Appellant’s human rights claim and deport him to Jamaica [‘the 2018 refusal letter’] was not unlawful and there w......
-
Deporting EU national offenders from the UK after Brexit: Moving from a system that recognises individuals, to one that sees only offenders
...(footnotes omitted).104. P.I . Case C-348/09 (n15) [34].105. ibid [31].106. MA (Pakistan) v Secretary of State for the Home Department [2019] EWCA Civ 1252.107. Nick Nason, ‘Win a Deportation Appeal? YouCan Still Be Deported, Court of Appeal Holds’(Free Movement, 24 July2019) https://www.fr......