NE-A (Nigeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Richards,Lord Justice Flaux,Lord Justice McFarlane |
| Judgment Date | 11 April 2017 |
| Neutral Citation | [2017] EWCA Civ 239 |
| Docket Number | Case Nos: C5/2015/1714 and C5/2015/3194 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 April 2017 |
[2017] EWCA Civ 239
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
Lord Justice McFarlane
Lord Justice Flaux
and
Sir Stephen Richards
Case Nos: C5/2015/1714 and C5/2015/3194
Tim Buley and Zane Malik (instructed by Duncan Lewis Solicitors) for NE-A
Fiona Beach and Cecilia Hulse (instructed by Virgo Solicitors) for HM
David Mitchell (instructed by the Government Legal Department) for the Secretary of State in both appeals
Hearing date: 23 March 2017
Approved Judgment
These two appeals are from decisions by the Upper Tribunal ("the UT") in respect of claims by foreign criminals that their deportation from the United Kingdom would be in breach of Article 8 of the European Convention of Human Rights. In NE-A (Nigeria) the tribunal dismissed the claim, in HM (Uganda) it allowed the claim. The appeals are brought by NE-A and the Secretary of State respectively. The issues concern the construction or application of section 117C(6) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), which provides that 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 the exceptions contained in section 117C(4)-(5).
The legal framework
By section 32 of the UK Borders Act 2007 the Secretary of State must make a deportation order in respect of a foreign criminal (as defined in section 32(1)) unless one of the exceptions in section 33 applies. One exception is that removal of the foreign criminal would be in breach of Convention rights.
Part 13 of the Immigration Rules ("the Rules") relates to deportation. In particular, paragraphs 398–399A apply where a person claims that their deportation would be contrary to Article 8. The version of paragraph 398 in force between July 2012 and 27 July 2014 provided that in the case of persons convicted of an offence for which they had been sentenced to a period of imprisonment of at least four years, the Secretary of State in assessing a claim under Article 8 would consider whether paragraph 399 or 399A applied and, if it did not, "it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors".
With effect from 28 July 2014, paragraph 398 provided:
"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 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 …
the Secretary of State in assessing the 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."
Paragraph 399 applies where the person has a relationship with a child under the age of 18 who is in the UK, or with a partner who is in the UK and is a British citizen or settled in the UK, and other conditions are met. Paragraph 399A applies where the person has been lawfully resident in the UK for most of their life and other conditions are met.
Part 5A of the 2002 Act, introduced by the Immigration Act 2014 with effect from 28 July 2014, applies inter alia to appeals to a tribunal from a deportation decision by the Secretary of State which is alleged to be in breach of Article 8. It provides, in material part:
" 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).
…
117C. Additional considerations in cases involving foreign criminals
(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."
The correct approach towards section 117C(6)
In Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, [2016] 1 WLR 4204 the court examined the interaction between section 117A(2) (the requirement to "have regard to" the considerations in sections 117B and 117C) and the various provisions of sections 117B and 117C themselves. In a judgment with which the other members of the court agreed, Sales LJ first recorded the agreed starting point as follows:
"45. It is common ground that the starting point for consideration of the proper construction of Part 5A of the 2002 Act is that sections 117A-117D, taken together, are intended to provide for a structured approach to the application of Article 8 which produces in all cases a final result which is compatible with, and not in violation of, Article 8. In that regard, both sides affirmed the approach to interpretation of Part 5A to ensure compliance with Article 8 as explained by this court in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, in particular at [26] and [31]."
He went on to explain that in order to understand the effect of the formula "the court or tribunal must … have regard … to" in section 117A(2), it is necessary to ask, with clarity and precision, to what does the subsection require regard to be had? He continued:
"49. … Section 117A(2) does not have the effect that, for example, a court or tribunal has a discretion to say that the maintenance of effective immigration control is not in the public interest, in direct contradiction of the statement of public policy by Parliament in section 117B(1). Where Parliament has itself declared that something is in the public interest – see sections 117B(1), (2), (3) and section 117C(1) – that is definitive as to that aspect of the public interest. But it should be noted that having regard to such considerations does not mandate any particular outcome in an article 8 balancing exercise: a court or tribunal has to take these considerations into account and give them considerable weight, as is appropriate for a definitive statement by Parliament about a particular aspect of the public interest, but they are in principle capable of being outweighed by other relevant considerations which may make it disproportionate under article 8 for an individual to be removed from the UK.
50. Another type of consideration identified in Part 5A to which regard must be had under section 117A(2) is the statement in section 117C(6) that 'the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2' (my emphasis). There is a similar requirement in section 117C(3), on its proper construction: see NA (Pakistan) v Secretary of State for the Home Department at [23]–[27]. In these provisions, Parliament has actually specified what the outcome should be of a structured consideration of Article 8 in relation to foreign criminals as set out in section 117C, namely that under the conditions identified there the public interest requires deportation. The 'very compelling circumstances' test in section 117C(3) and (6) provides a safety valve, with an appropriately high threshold of application, for those exceptional cases involving foreign criminals in which the private and family life considerations are so strong that it would be disproportionate and in violation of Article 8 to remove them. If, after working through the...
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