R (on the application of Yasir Mahmood) v Upper Tribunal (Immigration and Asylum Chamber)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon |
| Judgment Date | 05 June 2020 |
| Neutral Citation | [2020] EWCA Civ 717 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2019/2259; C5/2019/1960; C5/2019/2202 |
| Date | 05 June 2020 |
[2020] EWCA Civ 717
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The High Court of Justice
Queen's Bench Division (Administrative Court)
and
The Upper Tribunal (Immigration and Asylum Chamber)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon
Lord Justice Coulson
and
Lord Justice Males
Case No: C4/2019/2259; C5/2019/1960; C5/2019/2202
and
Michael Biggs and Nazir Ahmed (instructed by Knightsbridge Solicitors) for Mahmood
Alexis Slatter (instructed by KTS Legal) for Estnerie
Michael Biggs and Arif Rahman (instructed by My Legal Ltd) for Kadir
Marcus Pilgerstorfer QC (instructed by Government Legal Department) for the Respondents
Virtual hearing date: 12 May 2020
Approved Judgment
This is the judgment of the Court.
Introduction
These appeals raise a short initial issue: whether the appellants committed ‘an offence that has caused serious harm’, within the meaning of section 117D(2)(c)(ii) of the Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’).
It is convenient to summarise the relevant statutory scheme, before turning to the facts of each case and its procedural history.
Sections 117A-D of the NIAA 2002 form part of Part 5A, which was inserted with effect from 28 July 2014 by s.19 of the Immigration Act 2014.
The definition of a ‘foreign criminal’ is set out in s.117D, which provides:
(2) In this Part, ‘foreign criminal’ means a person –
(a) who is not a British citizen
(b) who has been convicted in the United Kingdom of an offence, and
(c) who –
(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.
In the case of a person who falls within this definition, s.117C provides:
Article 8: 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.
The later provisions of s.117C provide criteria for an assessment of the foreign criminal's article 8 rights.
As noted by Leggatt LJ in CI (Nigeria) v. Secretary of State for the Home Department [2019] EWCA Civ 2027 at [20], the purpose of Part 5A of the 2002 Act was to introduce a structured approach to the application of article 8(2) of the European Convention on Human Rights in the cases of foreign criminal offenders which produces in all cases a final result compatible with those rights; see also Lord Carnwath in KO (Nigeria) v. Secretary of State for the Home Department [2018] UKSC 53 at [12]–[15].
In the present cases there has been such an assessment that has resulted in conclusions that were adverse to these appellants. The main issue on this appeal is the logically prior question: whether they fell within the definition of ‘foreign criminal’.
There are two other provisions which can be touched on shortly.
First, the Immigration Rules. Part 13 of the Rules, concerning deportation, refers to the terms ‘foreign criminal’ and ‘serious harm’.
A398. These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked.
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 …
…
(c) the deportation of the person from the UK is conducive to the public good and in the public interest 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, 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.
The words of paragraph 398(c) are similar to the words in s.117D(2)(c)(ii) and (iii) and have been subject to consideration by this Court.
Second, sections 3(5)-(6) and 5(1) of the Immigration Act 1971 (‘ IA 1971’) provide the respondent with the power to order deportation. Section 3(5) provides:
A person who is not a British citizen is liable to deportation from the United Kingdom if –
(a) the Secretary of State deems his deportation to be conducive to the public good;
…
Section 5 sets out ‘the procedure for, and further provisions as to, deportation’:
(1) Where a person is under section 3( 5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him …
As a preliminary to considering why each offender contends that he does not fall within the definition of a foreign criminal for the purposes of ss.117C and D, it is necessary to set out the facts which led the First-tier Tribunal (‘FtT’) to conclude that each of them did.
Mahmood
The offending
Yasir Mahmood is a Pakistani National, who was born in January 1991. He arrived in the United Kingdom in September 2008; and was granted indefinite leave to remain in March 2011. He is married to, and lives with, a Pakistani national who also has leave to remain.
In July 2016 (when he was 23), he was convicted of ‘causing/inciting prostitution of/pornography involving a child between 13 and 17’, contrary to s.48 Sexual Offences Act 2003. In summary, he had sent a picture of his penis to a girl aged 14/15 and had caused her to take an intimate picture of herself and send it to him.
In August 2016, he was sentenced to a 3-year non-custodial sentence, comprising of supervision and 100 hours of unpaid work. He was also made the subject of a 5-year Sexual Offenders Notice requirement, and a 5-year Sexual Harm Prevention Order (‘SHPO’) with a programme requirement of 110 days. An adverse costs order of £450 was also made.
Two years later, on 12 July 2018, he was convicted of failing to comply with the Notice requirement and a breach of the SHPO. He was sentenced in November 2018 to a term of 6 months' imprisonment on each count, to run concurrently.
The following day, on 9 November 2018, he was served with notice of a decision by the Secretary of State to deport him to Pakistan as a ‘foreign criminal’, on the basis that his sexual offence had caused serious harm; and his deportation would therefore be conducive to the public good, see s.3(5)(a) of the IA 1971.
Procedural steps
On 4 December 2018, he appealed against the Secretary of State's decision, arguing that his deportation to Pakistan would involve a breach of his rights under article 8 of the ECHR, and would therefore be a breach of s.6 Human Rights Act 1998 (‘ HRA 1998’). The Secretary of State rejected this argument in January 2019 and maintained the deportation decision. In January 2019, he appealed the refusal of his human rights claim to the FtT. Following a hearing in April 2019, his appeal was rejected by FTJ O'Brien in a decision dated 10 April 2019.
He applied for permission to appeal this decision to the Upper Tribunal (‘UT’). His first application was refused by FTJ Easterman on 24 May 2019. A second application was refused by Deputy UTJ Mailer on 4 July 2019. The July refusal formed the basis for an application for Judicial Review. The initial application was refused by the High Court in August 2019. However, permission was granted by Leggatt LJ in September 2019, with a direction that the application be retained in the Court of Appeal.
Estnerie
The offending
Muraley Estnerie is a Malaysian national, who was born in March 1969. He entered the United Kingdom; and, on 15 January 2002, claimed asylum under a false identity: that of a Sri Lankan national Murilitharan Thamotharan, born in March 1972. His application was refused. Between 2013 and 2016, he made a further five applications for leave to remain on human rights grounds, all based on the false Sri Lankan identity. These applications were all rejected.
On 14 July 2017, he pleaded guilty to six counts of being in possession of false identity documents and of seeking to obtain leave to remain by deception. On 2 August 2017, he was sentenced as follows:
Count 1, an offence of possessing or controlling identity documents with intent, contrary to s.4 of the Identity Documents Act 2010 (offence date: 23 December 2013 to 31 July 2015), 4 months' imprisonment.
Counts 2–6, offences of being a person who is not a British Citizen obtaining or seeking leave to enter or remain in the United Kingdom, contrary to s.24A(a) of the Immigration Act 1971 (offence dates: 15 January 2002, 20 May 2013, 5 May 2015, 2 October 2015 and 9 March 2016): 8 months' imprisonment, concurrent with each other, but consecutive to the 4 months' term imposed under count 1.
In passing sentence, the Judge said this:
… this is a 48 year old man who… made a completely...
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