MM (Uganda) and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Laws,Vos,Hamblen LJJ |
| Judgment Date | 20 April 2016 |
| Neutral Citation | [2016] EWCA Civ 450 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 April 2016 |
[2016] EWCA Civ 450
COURT OF APPEAL
Laws, Vos and Hamblen LJJ
Mr I MacDonald QC instructed by Ansah Solicitors, for the Claimants;
Lord Keen of Elie QC and Mr M Pilgerstorfer instructed by the Government Legal Department, for the Secretary of State.
Januzi v Secretary of State for the Home Department; Hamid v Secretary of State for the Home Department; Gaafar v Secretary of State for the Home Department; Mohammed v Secretary of State for the Home DepartmentUNK[2006] UKHL 5; [2006] 2 AC 426; [2006] 3 All ER 305; [2006] Imm AR 252; [2006] INLR 118
KMO (section 117-unduly harsh) Nigeria [2015] UKUT 543 (I AC)
LC (China) v Secretary of State for the Home DepartmentUNK [2014] EWCA Civ 1310; [2015] Imm AR 227; [2015] INLR 302
MAB (para 399; ‘unduly harsh’) USA [2015] UKUT 435 (IAC)
MF (Nigeria) v Secretary of State for the Home DepartmentUNK [2013] EWCA Civ 1192; [2014] 1 WLR 544; [2014] 2 All ER 543; [2014] Imm AR 211; [2014] INLR 18
Secretary of State for the Home Department v AJ (Angola)UNK [2014] EWCA Civ 1636
Secretary of State for the Home Department v MA (Somalia)UNK [2015] EWCA Civ 48
VIA Rail Canada v National Transportation Agency 2000 CanLII 16275 (FCA); (2000) 193 DLR (4th) 357 (Fed CA)
YM (Uganda) v Secretary of State for the Home DepartmentUNK [2014] EWCA Civ 1292; [2015] INLR 405
European Convention on Human Rights, Article 8
Immigration Rules HC 395 (as amended), paragraphs 398, 399 & 399A
Nationality, Immigration and Asylum Act 2002, sections 117A, 117B, 117C & 117D
UK Borders Act 2007, sections 32 & 33
Human rights — Article 8 of the ECHR — family life — paragraph 399 of the Immigration Rules — section 117C(5) of the 2002 Act — procedure and process — deportation —‘unduly harsh’— meaning coloured by context — need to consider all circumstances — MAB (para 399; ‘unduly harsh’) USA [2015] UKUT 435 (IAC) wrongly decided
The Claimants were foreign criminals within the meaning of section 32 of the UK Borders Act 2007. They each challenged deportation on the ground that it would breach Article 8 of the ECHR. Their appeals were conjoined because they concerned the meaning of the term “unduly harsh” in paragraph 399 of the Immigration Rules HC 395 (as amended) and section 117C(5) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’). A foreign criminal could avoid deportation under those provisions if he could show that the effect on a qualifying child or partner would be “unduly harsh”.
MM, a citizen of Uganda, entered the United Kingdom as a child and received indefinite leave to remain in 2003. In 2012 he was sentenced to 22 months' imprisonment for supplying class A drugs. The First-tier Tribunal (‘FtT’) allowed MM's appeal against deportation. It placed great weight on his relationship with his daughter and noted the view of social services that deportation would have a “devastating impact” on the child's emotional development. The Upper Tribunal (‘UT’) held that the FtT had erred in law by applying the wrong version of the Immigration Rules. Specifically, it failed to apply paragraphs 398, 399 and 399A as amended in July 2014. Those amendments corresponded to the introduction of sections 117A-D of the 2002 Act. In cases concerning the deportation of foreign criminals, regard to the considerations set out in section 117C was required. The UT concluded however that the FtT's failure to consider the amended rules was not material and upheld its decision. It further found that “Exception 1” in section 117C(4) prevented MM's deportation, because he had been lawfully resident in the United Kingdom for most of his life, he was socially and culturally integrated in the United Kingdom and the FtT had in substance applied the third condition, namely that there would be very significant obstacles to his integration in Uganda. The Secretary of State for the Home Department appealed against the UT's decision.
KO, a citizen of Nigeria, arrived in the United Kingdom illegally in 1986. In 2011 he was convicted of conspiracy to make false representations and sentenced to 20 months' imprisonment. KO and his wife had four children together. His wife also had a daughter from a previous relationship who regarded KO as her father. On appeal against deportation, the FtT found that it would be unduly harsh to require the eldest child to live in Nigeria and it would be disproportionate to interfere with the stability of the close family unit. The UT allowed the Secretary of State's appeal, finding that the Claimant had not established that the impact of deportation on the children would be unduly harsh and so paragraph 399 of the Immigration Rules did not apply. In making its decision the UT did not adopt the approach in MAB (para 399; ‘unduly harsh’) USA[2015] UKUT 435 (IAC), which held that the assessment as to whether the impact upon a qualifying child would be unduly harsh should altogether leave out of account the gravity of the foreign criminal's offence. KO appealed against the UT's decision.
Held, allowing the appeal of the Secretary of State and dismissing the appeal of KO:
(1) It was well settled that the Immigration Rules constituted a complete code for the assessment of claims under Article 8 of the ECHR by foreign criminals faced with deportation. In the case of foreign criminals such as MM and KO, who had been sentenced to terms of imprisonment between twelve months and four years, paragraphs 399 and 399A of the Immigration Rules were applicable. If the facts did not fit so that neither rule applied, the foreign criminal was required to be deported unless there were very compelling circumstances over and above those described in paragraphs 399 and 399A (paras 16 – 18).
(2) The phrase “unduly harsh” plainly meant the same in section 117C(5) of the 2002 Act as it did in paragraph 399 of the Immigration Rules. It was an ordinary English expression but its meaning was coloured by its context. The context invited emphasis on two factors: first, the public interest in the removal of foreign criminals and, secondly, the need for a proportionate assessment of any interference with Article 8 rights. The UT's approach in MAB ignored that combination of factors. The public interest factor was expressly vouched by Parliament in section 117C(1). Section a117C(2) provided that the more serious the offence committed, the greater the public interest in deportation. That steered the Tribunals and the Court towards a proportionate assessment of the criminal's deportation in any given case. Accordingly, the more pressing the public interest in his removal, the harder it would be to show that the effect on his child or partner would be unduly harsh. Any other approach would dislocate the “unduly harsh” provisions from their context such that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation. In such a case “unduly” would be mistaken for “excessive”, which imported a different idea. What was due or undue depended on all the circumstances, not merely the impact on the child or partner in the given case. The issue was not advanced by the Secretary of State's guidance in the Immigration Directorate Instructions (‘IDIs’) or the learning on the use of the term “unduly harsh” in the context of internal relocation issues arising in refugee law. The IDIs were not a source of law and the asylum context of internal relocation was far removed from that of paragraphs 398–399 of the Immigration Rules. The expression “unduly harsh” in section 117C(5) and paragraph 399(a) and (b) required consideration of all the circumstances, including the criminal's immigration and criminal history. MAB was wrongly decided (paras 22 – 26).
(3) In MM's case, the FtT considered that the only question it had to decide was whether the case involved exceptional circumstances. There was no focus whatsoever on Exception 1 in the amended 2002 Act, since the FtT did not regard that as part of the legal frame with which it was concerned. Whilst reference was made to an earlier immigration decision in MM's case from 2002, the findings in that decision simply did not ask or answer the question posed by the...
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