MM (Uganda) and Another v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Laws,Lord Justice Vos,Lord Justice Hamblen
Judgment Date20 April 2016
Neutral Citation[2016] EWCA Civ 617
Date20 April 2016
Docket NumberCase No: C5/2015/0412(A); C5/2015/0412

[2016] EWCA Civ 617

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Royal Courts of Justice

Strand

London, WC2A 2LL

Before:

Lord Justice Laws

Lord Justice Vos

Lord Justice Hamblen

Case No: C5/2015/0412(A); C5/2015/0412

MM (Uganda) & Anr
Appellants
and
Secretary of State for the Home Department
Respondent

Mr Ian MacDonald QC (instructed by Ansah Solicitors) appeared on behalf of KO

Irving & Co Solicitors represented MM

Lord Keen of Elie QC and Mr Marcus Pilgerstorfer (instructed by the Government Legal Department) appeared on behalf of the Secretary of State

Lord Justice Laws
1

These are two appeals which Underhill LJ has directed to be heard together. Their principal focus is the meaning of the term "unduly harsh" in paragraph 399 of the Immigration Rules and section 117C(5) of the Nationality, Immigration and Asylum Act 2002.

2

The context is the statutory regime for the removal of foreign criminals from the United Kingdom pursuant to section 32 of the UK Borders Act 2007. A foreign criminal as defined by section 32(1) is liable to automatic deportation by the Secretary of State under section 32(5) but he may avoid deportation if in reliance on Article 8 of the Human Rights Convention he can show that the effect on a qualifying child or partner would be "unduly harsh". I will set out the statutory provisions below. There are conflicting decisions of the Upper Tribunal on the meaning of the term "unduly harsh". A number of prospective appeals in this court await our judgment in these two cases. MM is the Secretary of State's appeal with permission granted by Sir Maurice Kay on 24 April 2015. In KO the foreign criminal is the appellant with permission granted by the Upper Tribunal on 29 October 2015.

3

I turn to the relevant legislation. I need not recite the provisions of the 2007 Act relating to foreign criminals. MM and KO are both foreign criminals within the meaning of the Act. By section 33(2) a foreign criminal is not to be deported if that would breach his Convention rights. Article 8 is most often in play in such cases. Legislation which governs the administration of Article 8 in foreign criminal cases has been amended. With effect from 28 July 2014 a new Part 5A was added to the Nationality, Immigration and Asylum Act of 2002. It applies where a court or tribunal is required to determine whether a decision made under the immigration acts breaches a person's rights under Article 8 (see section 117A(1)) as well as the considerations set out in section 117B. In cases concerning the deportation of foreign criminals the court or tribunal must have regard to the considerations set out in section 117C. That section provides:

"(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal ('C') who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where—

(a) C has been lawfully resident in the United Kingdom for most of C's life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(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.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted."

4

At the same time as those provisions entered into force amendments were made to the applicable immigration rules. They built on previous amendments made in 2012. Those had sought to emphasise the strength of the public interest regarding the desirability of deportation of foreign criminals and also to secure a consistency of approach.

5

Rules 398, 399 and 399A in their amended form provide as follows:

"398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 … and

(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

(b) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(c) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or

(d) 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

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported."

6

MM is a national of Uganda born on 15 February 1983. He arrived in the United Kingdom on 19 September 1990. He and his brother were taken out of the UK in 1997 to Kenya and Uganda but returned here on 6 June 1999. At length, after an initial refusal followed by tribunal proceedings, MM was granted indefinite leave to remain on 21 January 2003. On 7 September 2012 he was convicted at the Taunton Crown Court on four counts of supplying class A drugs and sentenced to concurrent terms of 22 months' imprisonment. A notice of intention to deport was served on him on 14 October 2013.

7

He appealed to the First-tier Tribunal ("the FTT"). He has a daughter born on 17 December 2004 who is a British citizen. The FTT considered what they thought were the applicable immigration rules and concluded (paragraph 51) that paragraph 399 (in the form they were considering it) did not apply and the only question was whether there were any "exceptional circumstances that would make the public interest in deportation outweighed by other factors". At paragraph 59 the FTT placed great weight on MM's relationship with his daughter and the latter's best interests, noting the view of social services that MM's deportation would have a "devastating impact on his daughter's emotional development".

8

At paragraph 60 they state that the case is finely balanced and conclude:

"Taking into account the significant period the appellant has spent in this country, his relationship with his daughter, the best interests of his daughter and the fact that the appellant has been drug-free since going to prison, we find that it is appropriate in this case to find that the balance of proportionality weighs in favour of the appellant and that it would be a breach of his private life and his family life with his daughter to be deported from the United Kingdom."

9

I must make some further short references to the FTT determination a little later.

10

The Secretary of State appealed this decision. The Upper Tribunal found that the FTT had applied the wrong immigration rules. They had had regard to the rules as they were before 28 July 2014. On that date, as I have said, the amended rules and the new Part 5A of the 2002 Act came into force. The judgments of the FTT and the...

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