R (on the application of Akpinar) v Upper Tribunal (Immigration and Asylum Chamber); Secretary of State for the Home Department v AV (Democratic Republic of the Congo)

JurisdictionEngland & Wales
JudgeLord Justice Maurice Kay,Sir Stanley Burnton
Judgment Date08 July 2014
Neutral Citation[2014] EWCA Civ 937
Docket NumberCase Nos: C4/2014/0825 and C5/2013/2859
CourtCourt of Appeal (Civil Division)
Date08 July 2014

The Queen on the application of

Between:
Irfan Akpinar
Appellant
and
The Upper Tribunal (Immigration and Asylum Chamber)
Respondent
and between
The Secretary of State for the Home Department
Appellant
and
AV (Democratic Republic of the Congo)
Respondent

[2014] EWCA Civ 937

Before:

Lord Justice Maurice Kay

Lord Justice McFarlane

and

Sir Stanley Burnton

Case Nos: C4/2014/0825 and C5/2013/2859

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

MR JUSTICE NICOL

AND IN THE COURT OF APPEAL (CIVIL DIVISION

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGES PERKINS AND McKEE

Royal Courts of Justice

Strand, London, WC2A 2LL

Stephen Knafler QC and Gordon Lee (instructed by Duncan Lewis) for Irfan Akpinar

Mikhil Karnik (instructed by Fadiga & Co) for AV

Rory Dunlop (instructed by the Treasury Solicitor) for the Upper Tribunal (Immigration and Asylum Chamber) and for the Secretary of State for the Home Department

Hearing date: 16 June 2014

Sir Stanley Burnton

Introduction

1

We have before us two appeals. The first, by Irfan Akpinar, is against the refusal of Nicol J to grant him permission to apply for judicial review of the refusal of the Upper Tribunal (Immigration and Asylum Chamber) to grant him permission to appeal against the decision of the First-tier Tribunal dismissing his appeal against the deportation order dated 23 January 2013 made by the Secretary of State. He contends, and contended, that his deportation would infringe his rights under Article 8 of the European Convention on Human Rights. The second is by the Secretary of State, against the decision of the Upper Tribunal (Immigration and Asylum Chamber). The First-tier Tribunal had dismissed the appeal of AV against the deportation order she had made. The Upper Tribunal allowed his appeal against the Secretary of State's decision, on the ground that his deportation would infringe his rights under Article 8.

2

Both appeals were heard together because they raise similar issues as to the effect and application of the judgment of the European Court of Human Rights in Maslov v Austria [2008] EHRR 546, [2009] INLR 47.

The legislative framework and applicable Immigration Rules

3

Sections 32 and 33 of the UK Borders Act 2007 provide, so far as material:

"32. 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.

(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). …'

33. 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 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."

4

The relevant provisions of the Immigration Rules are, so far as relevant, as follows:

"A362. Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 9 July 2012 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.'

397. A deportation order will not be made if the person's removal pursuant to the order would be contrary to the UK's obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.

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

(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;

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'

399A. This paragraph applies where paragraph 398(b) or (c) applies if

(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."

The facts

Mr Akpinar

5

Mr Akpinar is a national of Turkey, born on the 1st January 1994, who entered the UK legally on the 15th August 2003, aged 9, with valid entry clearance to join his father. He was granted Indefinite Leave to Remain ('ILR') on arrival. His father had been granted ILR as a refugee on the 25th September 2002.

6

His convictions were set out by the First-tier Tribunal in its determination:

"26 March 2009 – affray – sentenced to a referral order for 12 months and ordered to pay compensation of £50.00.

19 August 2009 – burglary and theft at a dwelling – sentenced to a young offenders supervision order for 12 months and a curfew order for 3 months with electronic tagging. Also ordered to pay compensation of £150.00 and costs of £100.00.

10 February 2010 – failing to comply with a curfew order – sentenced to continue with the curfew order for 3 months and the electronic tagging order revoked (this was varied on 2 June 2010).

31 March 2010 – failing to comply with a curfew order – sentenced to continue and ordered to pay a fine of £15.00 and costs of £120.00.

2 June 2010 – breach of curfew order and resulting from the original conviction of 10 February 2012 – sentenced to 6 months detention and training order.

21 January 2011 – possession of a controlled drug class B cannabis/cannabis resin – sentenced on 2 February 2011 to a conditional discharge for 6 months and ordered to pay costs of £30.00 and forfeiture and destruction.

26 May 2011 – breach of anti-social behaviour order – fined £20.00.

Breach of conditional discharge sentence was continuous from the original conviction of 2 February 2011 and no action on breach.

23 June 2011 – breach of interim anti social behaviour order – fined £35.00 and a victim surcharge of £15.00.

12 July 2011 – breach of interim anti social behaviour order – ordered to pay a victim surcharge of £15.00, a fine of £85.00 and costs of £35.00.

November 2011 – possession of a controlled drug class B cannabis/cannabis resin – ordered to pay a fine of £65.00, a victim surcharge of £15.00 and forfeiture and destruction.

16 December 2011 – handling stolen goods (receiving) – sentenced to a detention and training order for 4 months.

16 March 2012 at Blackfriars Crown Court – convicted of violent disorder and on 16 April 2012 he was sentenced to twelve months' imprisonment in a young offenders institution".

7

In her decision letter, the Secretary of State considered that section 32(5) of the 2007 Act required her to make a deportation order in respect of Mr Akpinar unless he fell within one of the exceptions in section 33. Neither paragraph 399 nor 399A of the Immigration Rules applied to him. The only possibly relevant paragraph was paragraph 399A(b), but it did not apply to him since he had not spent half of his life in this country, since he had been here for only 8 years and 7 months immediately preceding the date of her decision. It followed that his deportation was to be considered in the public interest unless there were exceptional circumstances that warranted departing from the decision to deport him, and there were no such circumstances.

8

The First-tier Tribunal considered the pre-sentence report that had been prepared for the purposes of Mr Akpinar's sentence for violent disorder. The probation officer stated that he had told him that he had been wrongly convicted. The officer said:

"The current offence suggests that Mr Akpinar has substantive cognitive deficits in terms of his decision making and he has been unwilling to take full responsibility for his actions. His previous response to supervision is not encouraging and I am uncertain about his level of motivation to address his offending behaviour.

Based on OASys Mr Akpinar is assessed as posing a high risk of reconviction and as posing a medium risk of harm to the public."

9

The First-tier Tribunal cited the sentencing remarks of the Crown Court Judge:

"Mr Akpinar, again, I am afraid there is no mitigation in this case, bearing in mind your plea, and I have...

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