MF (Nigeria) v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls |
| Judgment Date | 08 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1192 |
| Docket Number | Case No: C5/2013/0398 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 October 2013 |
[2013] EWCA Civ 1192
The Master of the Rolls
Lord Justice Davis
and
Lady Justice Gloster
Case No: C5/2013/0398
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER
UPPER TRIBUNAL JUDGE STOREY &
UPPER TRIBUNAL JUDGE COKER
DA009162010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lisa Giovannetti QC and Neil Sheldon (instructed by Treasury Solicitor) for the Appellant
Raza Husain QC, Duran Seddon and Navtej Singh Ahluwalia (instructed by Wilson Solicitors LLP) for the Respondent
Hearing dates: 16 & 17 July 2013
Approved Judgment
Introduction
This is the judgment of the court.
In what circumstances is the deportation of a foreign national criminal contrary to article 8 of the European Convention on Human Rights ("the Convention")? This question has been the subject of much public debate and many judicial decisions in recent years. Until rules 398, 399 and 399A ("the new rules") were introduced into the Immigration Rules HC 395 in 2012, the question was governed entirely by case law. The new rules introduced for the first time a set of criteria by reference to which the impact of article 8 in criminal deportation cases was to be assessed. This appeal raises important questions as to the proper interpretation of the new rules.
Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is "liable to deportation from the United Kingdom if (a) the Secretary of State deems his deportation to be conducive to the public good". Section 32(4) and (5) of the UK Borders Act 2007 ("the 2007 Act") provides that, subject to section 33, the Secretary of State must make a deportation order in respect of a "foreign criminal". A foreign criminal is a person who is not a British citizen, is convicted in the United Kingdom of an offence and is sentenced to a period of imprisonment of at least 12 months. Section 33 provides that section 32(4) and (5) do not apply where the removal of the foreign criminal in pursuance of the deportation order would breach his Convention rights.
The previous law was stated in a number of decisions of the ECtHR including Boultif v Switzerland [2003] 33 EHRR 1179, Uner v Netherlands [2006] 3 FCR 229 and Maslov v Austria [2008] GC ECHR 1638/03. The essence of the approach required by that law was summarised by the House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167. Giving the opinion of the appellate committee, Lord Bingham said at para 16:
"The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on."
At para 18, he said:
"The reported cases are of value in showing where, in many different factual situations, the Strasbourg court, as the ultimate guardian of Convention rights, has drawn the line, thus guiding national authorities in making their own decisions. But the main importance of the case law is in illuminating the core value which article 8 exists to protect. This is not, perhaps, hard to recognise. Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant. The Strasbourg court has repeatedly recognised the general right of states to control the entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases where the applicants complain of a violation of their article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved. Proportionality is a subject of such importance as to require separate treatment."
He then discussed proportionality concluding at para 20:
"In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test."
It is not in dispute that the case law provides that an appeal in a removal or deportation case involves two stages. The first is to assess whether the decision appealed against is in accordance with the immigration rules; and the second is to determine whether the decision is contrary to the appellant's article 8 rights. As the House of Lords made clear at para 17 of Huang, the rules in force at that time were not required to guarantee compliance with article 8 and did not strike the balance: "it is a premise of the statutory scheme enacted by Parliament that an applicant may fail to qualify under the rules and yet may have a valid claim by virtue of article 8". It is against this background that the new rules must be considered.
The new rules
The new rules provide as follows:
" Deportation and Article 8
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 deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,
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) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; 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, settled in the UK, or in the UK with refugee leave or humanitarian protection, and
(i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and
(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK.
399A. This paragraph applies where paragraph 398(b) or (c) applies if —
(a) the...
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