MM (Jamaica) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Lord Justice Kitchin,Lady Justice Gloster |
| Judgment Date | 23 July 2015 |
| Neutral Citation | [2015] EWCA Civ 1239 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 July 2015 |
| Docket Number | C5/2014/1798 |
[2015] EWCA Civ 1239
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Aikens
Lord Justice Kitchin
Lady Justice Gloster
C5/2014/1798
Mr A Payne (instructed by GLD) appeared on behalf of the Appellant
Mr H Southey QC (instructed by BJD) appeared on behalf of the Respondent
This is an appeal by the Secretary of State for the Home Department ("SSHD") with the permission of Arden LJ, from a decision of the Upper Tribunal (Immigration and Asylum Chamber), which was promulgated on 6th February 2014. The hearing had taken place on 4th December 2013 before the President, McCloskey J and Upper Tribunal Judge Eshum. It appears that the President gave an ex tempore judgment immediately after submissions.
The SSHD had appealed a decision of the First-tier Tribunal (Immigration and Asylum Chamber)(FTT) promulgated on 13th August 2013. That decision had allowed the appeal of Mark Wayne Miller, the current respondent (which is how I will refer to him in this judgment) from the decision of the SSHD, dated 24th January 2013, to deport him as a "foreign criminal" pursuant to section 32(5) of the UK Borders Act 2007.
It is sensible to set out the relevant provisions of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) ("the 1971 Act") and the UK Borders Act 2007 ("the 2007 Act") at this juncture. Section 3(5)(a) of the 1971 Act provides:
"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 5(1) of the 1971 Act provides that:
"Where a person is under section 3(5) (or section 3 subsection (6)) liable to deportation then the Secretary of State for the Home Department may make a deportation order against him subject to the further provisions of that section."
The 2007 Act came into force on 8th August 2008. Sections 32(1) and subsection (2) of the 2007 Act defined who is for the purposes of the Act a "foreign criminal". For present purposes it is someone who is not a British citizen, who has been convicted in the UK of an offence and who has been sentenced to a period of imprisonment of at least 12 months. Section 32(4) declares for the purpose of section 3(5)(a) of the 1971 Act that:
"The deportation of a foreign criminal is conducive to the public good."
Section 32(5) of the 2007 Act stipulates that the Secretary of State must make a deportation order in respect of a foreign criminal, but this is subject to section 33 of that Act. Section 33(1) provides that section 32(5) will not apply if one or more of various exceptions set out in section 33 applies. The first of these exceptions is where removal of the "foreign criminal" in pursuance of a deportation order would breach a person's Convention rights: section 33(2)(a). These Convention rights obviously include a person's right to respect for private and family life under Article 8 of the ECHR.
Section 33(7) states that the application of an exception within section 33 does not prevent the making of a deportation order and "results in it being assumed neither that deportation of a person concerned is conducive to the public good nor that it is not conducive to the public good". The effect of this somewhat convoluted provision is that the fact that a person comes within the exceptions has no effect in itself either way on the declaration of the section 34(4) of the 2007 Act, viz deportation of a foreign criminal is conducive to the public good —see SS (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 998, at paragraph 54.
It is also sensible to record, at this stage, the relevant immigration rules that were in force at the time that the SSHD made her decision to deport the respondent. The same rules were enforced at the time of the decisions of the FTT and the UT in this case. With effect from the 12th July 2012 the relevant rules were those contained in the statement of Immigration Rules HC194. I will call these "the 2012 rules". The relevant rules are A362, 363, 364, 397, 398, 399 and 399A. These are all set out in the FTT's decision at paragraph 14, save for rule 364:
"A362. Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 28 July 2014 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.
…
363. The circumstances in which a person is liable to deportation include:
(i) where the Secretary of State deems the person's deportation to be conducive to the public good;
(ii) where the person is the spouse or civil partner or child under 18 of a person ordered to be deported; and
(iii) where a court recommends deportation in the case of a person over the age of 17 who has been convicted of an offence punishable with imprisonment.
364. Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. In the cases detailed in paragraph 363A deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority.
397. A deportation order will not be made if the person's removal pursuant to the order would be contrary to the UK's obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.
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
7(a) the deportation of the person from the UK is conducive to the public good and in the public interest 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 and in the public interest 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 and in the public interest 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, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
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 be unduly harsh for the child to live in the country to which the person is to be deported; and (b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
399A. This paragraph applies where paragraph 398(b) or (c) applies if —
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and 8
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported."
It should be noted that the immigration regime has changed yet again as a result of the Immigration Act 2014 ("the 2014"). The relevant parts of that Act came into force on 28th July 2014. Section 19 of the 2014 Act introduced a new part 5A into the Nationality Immigration and Asylum Act 2002, which new part contained sections 117A to 117D. That part is headed "Article 8 of the ECHR:...
To continue reading
Request your trial
-
Secretary of State for the Home Department v Thierno Barry
...of the public policy of removing foreign criminals. In that context she relies on the judgment of this Court in MM (Jamaica) v Secretary of State for the Home Department [2015] EWCA Civ 1239, at para. 39, where it was said that the FTT in that case had erred because it had “… started its c......