Paulo Antonio v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice William Davis,Lord Justice Warby,Lord Justice Moylan |
| Judgment Date | 16 June 2022 |
| Neutral Citation | [2022] EWCA Civ 809 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2021-001949 |
[2022] EWCA Civ 809
Lord Justice Moylan
Lord Justice Warby
and
Lord Justice William Davis
Case No: CA-2021-001949
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
Upper Tribunal Judge Rintoul
DA/01472/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Alex Goodman (instructed by Duncan Lewis Solicitors) for the Appellant
Julie Anderson (instructed by Government Legal Department) for the Respondent
Hearing date: 11 May 2022
This judgment will be handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10.30am on 16 June 2022.
Introduction
The appellant appeals against the decision of Judge Rintoul of the Upper Tribunal (Immigration and Asylum Chamber) (the “UT”) promulgated on 20 May 2021. Judge Rintoul dismissed the appellant's appeal from the determination of the First-tier Tribunal (Judge McCarthy). Judge McCarthy had dismissed an appeal against the decision of the Secretary of State for the Home Department (the “SSHD”) made on 9 July 2013 whereby the SSHD had determined that the appellant was a person to whom Section 32(5) of the UK Borders Act 2007 applied.
Factual and procedural background
The appellant claims that he entered the UK in 1992 when he was 14 or 15. There is no record of any lawful entry by him. There are records which tend to show that he was in this country by 1993. Information about his activity between then and 2003 is sketchy. HM Revenue and Customs hold no record in relation to him though in 2002 he applied for a job at a company in Telford. There is no suggestion that he has family in this country.
In 2003 the appellant committed a robbery and an attempted robbery two days apart at small corner shops. He was armed with an imitation firearm. He had an accomplice who was armed with a knife. In 2005 the appellant was convicted after a trial of the robbery offences. He was sentenced to nine years' imprisonment.
On 27 June 2006 the SSHD served a notice of deportation on the appellant on the basis that his presence in the UK was not conducive to the public good. The appellant responded two days later claiming that he had been born in Portugal. In 2008 the SSHD made a deportation order based on the appellant's claimed Portuguese nationality. The appellant waived his appeal rights. When the custodial part of his sentence expired in 2010, he was deported to Portugal. However, the Portuguese authorities did not accept that the appellant was a national of their country. He was returned to the UK.
On 18 October 2010 the SSHD revoked the deportation order because she was not satisfied that the appellant was a Portuguese national. The appellant, who thereafter was detained in immigration detention, nonetheless continued to maintain that he was Portuguese. For a period of around 3 years the SSHD made a variety of enquiries into the appellant's nationality. These concentrated on whether he had Jamaican nationality. The appellant had said that his late mother had been a Jamaican national. In June 2013 the SSHD in a detention review concluded that “the possibility that Mr Antonio is a Jamaican national is far greater than of his being of any other nationality”. This conclusion was not supported by anything emanating from the Jamaican authorities; rather the reverse.
On 9 July 2013 the SSHD made a decision that Section 32(5) of the UK Borders Act 2007 applied to the appellant. Accordingly she decided to make a deportation order. The notice of the decision ran to 12 pages. Attached to it was the deportation order. The order simply stated that the SSHD was obliged to make a deportation order in respect of the appellant as a foreign criminal, namely pursuant to Section 32(5) of the 2007 Act, and that the appellant was required to leave the UK and was prohibited from entering the UK. The decision letter said that, if the appellant did not leave the UK as required, it was proposed that he would be removed to Jamaica. The letter dealt in some detail with the provision that could be made for the appellant in Jamaica.
The appellant appealed against the decision of the SSHD to the First-tier Tribunal i.e. the decision that Section 32(5) of the 2007 Act applied to him. That appeal was stayed pending the outcome of an application for permission to apply for judicial review of the decision to make a deportation order. The appellant's case on that application was that the making of the order was unlawful because some change of circumstances was required to make a second or fresh deportation order. He succeeded at first instance and the deportation order was quashed. The SSHD appealed against the quashing order. That appeal was successful: see R(Antonio) v SSHD [2017] 1 WLR 3431.
The appeal before the First-tier Tribunal then proceeded, the stay being lifted. The appeal was dismissed on 11 October 2018. There followed the appeal before Judge Rintoul in the UT with which we are concerned.
The decision of Judge Rintoul
For reasons with which I am not concerned, the decision of the First-tier Tribunal was set aside. The appeal before Judge Rintoul was a de novo re-hearing. He heard evidence, in particular from the appellant. Judge Rintoul subjected the appellant's evidence to close analysis. Judge Rintoul's conclusion of fact was that the appellant's “evidence is not something on which I can safely rely upon unless confirmed by other independent material”. He said that “I am not…satisfied that he has given all the information available to him”. Judge Rintoul concluded that it was improbable that all of the enquiries made by the SSHD, including those to the Jamaican authorities, would have led to dead ends if the information given by the appellant had been accurate.
Before the First-tier Tribunal the SSHD had conceded that “the appellant is neither Portuguese nor Jamaican and cannot be deported to either country”. Judge Rintoul determined that the SSHD was bound by that concession notwithstanding the fact that he was hearing the appeal de novo. Having made that determination, he said he took “into account the concession….but that is hardly a ringing endorsement that what [the appellant] has said is true; on the contrary”. He said that there was no concession that the appellant had been truthful or had complied fully in providing all the information available to him. Judge Rintoul said that the consequence of the concession was that he was bound to accept that there was “no realistic prospect” that he could leave the UK or that the deportation could be enforced “during a reasonable period of time to Jamaica or any other country”.
Specifically in relation to deportation of the appellant to Jamaica, Judge Rintoul said this: “…on the basis of the evidence and concession, and in the absence of any foreseeable change in the circumstances, there is no prospect of effecting deportation; any removal is likely to result in him being returned to the United Kingdom”.
Judge Rintoul recorded the submissions made on behalf of the appellant and the SSHD. It was argued on behalf of the appellant that, notwithstanding the inconsistencies and discrepancies in the appellant's evidence, his account had “core veracity”. The appeal was put in two ways. First, it was said that removal of the appellant from the UK in consequence of the SSHD's decision would be incompatible with the appellant's Convention rights. The submission was that the judge had to proceed on the hypothetical assumption that removal would be effected. On that assumption, removal to Jamaica would breach the appellant's Convention rights. Second, it was argued that the effect of the decision was to criminalise the presence of the appellant in the UK when it was impossible for him to leave whether voluntarily or by removal. That was clearly incompatible with his Convention rights. Further, to make a deportation order in those circumstances was not in accordance with the law.
The submission on behalf of the SSHD was that the appellant's evidence was not credible. That fact undermined the entirety of the appellant's case. Were he to be removed to Jamaica, there would be no compelling circumstances indicating that his Convention rights would be breached. The reality was that the apparent inability to remove the appellant was because he was not giving accurate information.
Judge Rintoul rehearsed the relevant statutory provisions (to which I shall refer in due course) and cited paragraphs [62] to [72] of RA (Iraq) v SSHD [2019] 4 WLR 132. In RA (Iraq) Lord Justice Haddon-Cave reviewed in considerable detail the authorities in relation to what he termed “limbo” cases. I shall consider the effect and relevance of RA (Iraq) in relation to the appellant hereafter.
Judge Rintoul considered the hypothetical scenario of removal to Jamaica. He found that there was insufficient material to demonstrate that the appellant would face a breach of Article 3 of the Convention in the event of such a return. He further concluded that there were no “very compelling circumstances” applicable to the appellant. This conclusion referred to the statutory term to be applied when assessing interference with the Article 8 rights of a foreign criminal.
The judge moved on to consider the proposition that the decision was not in accordance with the law because the appellant could not be removed and that the making of a deportation order in those circumstances could not be justified. He said this: “…I do not accept that maintaining a deportation order that cannot be carried out is an improper purpose; they are imposed and endure for many reasons, not just to require departure from and prohibit return to the United...
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R (on the application of AM (Belarus)) v Secretary of State for the Home Department
...was still possible “and accordingly any state of limbo that they find themselves in is self-induced”. 91 In Antonio v Secretary of State for the Home Department [2022] EWCA Civ 809; [2022] INLR 531, the appellant was a foreign criminal in respect of whom a deportation order was made. He fai......