NA (Pakistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson |
| Judgment Date | 29 June 2016 |
| Neutral Citation | [2016] EWCA Civ 662 |
| Docket Number | Case Nos: C5/2015/0317, C5/2015/2012, C5/2014/3750, C5/2014/3754 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 June 2016 |
[2016] EWCA Civ 662
Lord Justice Jackson
Lady Justice Sharp
and
Lord Justice Sales
Case Nos: C5/2015/0317, C5/2015/2012, C5/2014/3750, C5/2014/3754
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
Nazir Ahmed (instructed by Genesis Law Associates Solicitors) for the Appellant in NA (Pakistan)
Robin Tam QC & Sarabjit Singh (instructed by Government Legal Department) for the Secretary of State for the Home Department
and
Hugh Southey QC and Glen Hodgetts (instructed by Legal Rights Partnership) for the Respondent in KJ (Angola)
Hugh Southey QC and Roxanne Frantzis (instructed by Howells LLP) for the Respondent in WM (Afghanistan)
Zia Nasim (instructed by Crown and Mehria Solicitors) for the Respondent MY (Kenya)
Hearing dates: 15 th and 16 th June 2016
Lord Justice Jackson delivered the judgment of the court.
This judgment is in 5 parts, namely:
Part 1. Introduction
Part 2. The relevant statutory provisions and Immigration Rules
Part 3. Interpretation of the legislation
Part 4. The individual cases
Part 5. Conclusion
PART 1. INTRODUCTION
This is the judgment of the court to which all members have contributed.
This is a group of four appeals, each of which raises the question whether a foreign criminal is entitled to resist deportation by reliance upon Article 8 of the European Convention on Human Rights ('ECHR'). In NA (Pakistan) and in WM (Afghanistan) it is relevant to examine that question under the legislative regime applicable up to 27 July 2014. In NA (Pakistan) it is also relevant to examine that question under the new legislative regime which came into effect on 28 July 2014. In KJ (Angola) and MY (Kenya) it is the new legislative regime which is relevant.
In this judgment we shall refer to individuals resisting deportation as 'claimants.'
PART 2. THE RELEVANT STATUTORY PROVISIONS AND IMMIGRATION RULES
Section 32 of the UK Border Act 2007 ("the 2007 Act") provides, so far as material:
" Automatic deportation
(1) In this section "foreign criminal" means a person—
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that—
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c.41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—
(a) he thinks that an exception under section 33 applies,
(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or
(c) section 34(4) applies."
Section 33 of the 2007 Act provides, so far as material:
" Exceptions
(1) Section 32(4) and (5)—
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
(b) are subject to subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention.
(3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.
(4) Exception 3 is where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the Community treaties."
The Immigration Rules set out how the Secretary of State and her officials will exercise the powers conferred by the 2007 Act. Between 9 July 2012 and 27 July 2014 the Immigration Rules provided:
" 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 person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or
(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.
399B. Where paragraph 399 or 399A applies limited leave may be granted for periods not exceeding 30 months. Such leave shall be given subject to such conditions as the Secretary of State deems appropriate. Where a person who has previously been granted a period of leave under paragraph 399B would not fall for refusal under paragraph 322(1C), indefinite leave to remain may be granted."
On 28 July 2014 the Immigration Act 2014 ("the 2014 Act") came into force. That Act applies to all decisions taken by the Secretary of State or a tribunal on or after that date: see YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 at [12]. The 2014 Act provided that a new Part 5A should be inserted into the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). That Part provides, so far as material:
"PART 5A
ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS
117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight...
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