RA (Iraq) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Haddon-Cave,Sir Jack Beatson,Lord Justice Irwin |
| Judgment Date | 17 May 2019 |
| Neutral Citation | [2019] EWCA Civ 850 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2017/0844 |
| Date | 17 May 2019 |
[2019] EWCA Civ 850
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM) CHAMBER
UPPER TRIBUNAL JUDGE ALLEN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Lord Justice Haddon-Cave
and
Sir Jack Beatson
Case No: C5/2017/0844
Mr David Chirico (instructed by Wilson Solicitors LLP) for the Appellant
Ms Claire van Overdijk (instructed by Government Legal Department) for the Respondent
Hearing date: 14 th March 2019
Judgment Approved by the court for handing down
(subject to editorial corrections)
Introduction
This case has procedural history stretching back to 2009. It has been before the Tribunals four times, in 2009 (twice), 2013 and 2016, and before the Court of Appeal twice, in 2011 and 2015. This is the third appeal to the Court of Appeal and concerns the Appellant's so-called ‘limbo’ status, that is to say a continuing stasis, whereby a person is prevented by continuing circumstance from being deported, but also prevented by lack of leave to remain from working, receiving normal State benefits, renting or buying property, or accessing the full range of NHS benefits, which together are said to constitute a disproportionate interference with family or private life under Article 8 of the Convention.
The Appellant appeals against the determination of Upper Tribunal Judge Allen dated 22 nd November 2016 in which he dismissed the Appellant's appeal against the Respondent (“SSHD”)'s decision, eight years earlier, on 9 th October 2008 to deport him.
The Facts
The Appellant (now aged 31) was born in 1987 in Kuwait but is a national of Iraq. He arrived in the UK in November 2003 with no Iraqi passport or other documentation. He was granted discretionary leave until his 18 th birthday, following refusal of his asylum claim.
On 10 th April 2007, the Appellant was sentenced to three years in a young offenders' institution for robbery. The victim was an elderly woman of 81 who was targeted because she was carrying £18,000 cash in her bag having visited a currency exchange. The Appellant used or threatened force to steal the money from the victim who fell to the ground knocking out four of her teeth. The Appellant was caught because members of the public intervened.
On 9 th October 2008, the SSHD made a decision to deport the Appellant on grounds that his continued presence was not conducive to the public good and refused his outstanding application for further leave to remain.
On 3 rd March 2009, the Appellant's appeal against deportation was dismissed by the Asylum and Immigration Tribunal (“AIT”) (Designated Immigration Judge Hanson and Mr S. S. Percy JP).
On 29 th September 2009, the Appellant's application for reconsideration of the AIT's determination of 3 rd March 2009 was heard by the AIT (before Senior Immigration Judge Waumsley and Mrs J Holt). However, regrettably it was not until ten months later, on 15 th July 2010, that the AIT published its decision dismissing the Appellant's appeal.
On 21 st March 2011, the Court of Appeal allowed an appeal against the AIT decision of 15 th July 2010 and remitted it to the UT for further consideration. It was common ground that the delay in the promulgation of the AIT's determination meant the Appellant's case would need to be reconsidered on Article 8 grounds, and that the issues relating to general risk on return to Iraq should also be considered.
On 1 st March 2013, the matter came before the Upper Tribunal (“UT”) (UT Judge Eshun). The Appellant raised three grounds. First, asylum and Article 3 ECHR. Second, Article 8 ECHR. Third, that because the Appellant was undocumented and could not be returned to Iraq, termination of his leave to remain had the effect of leaving him in a permanent state of ‘limbo’ (see above).
On 1 st May 2013, the appeal was dismissed by the UT but UT Judge Eshun made no finding on the third ground, the ‘limbo’ ground.
On or about 20 th May 2013, the Appellant filed a notice of appeal raising three grounds of appeal, the second ground of which was that UT Judge Eshun had failed to consider the ‘limbo’ ground. The Appellant submitted that, whilst s.84(1)(g) of the Nationality, Immigration and Asylum Act 2002 Act (“the 2002 Act”) required the UT to consider the effect of removal from the UK following an immigration decision, s. 84(1)(c) of the 2002 Act required the UT to consider the legality of the decision to make a deportation order.
On 13 th December 2013, UT Judge Eshun, recognising her omission to deal with the point, granted permission to appeal to the Court of Appeal on the ‘limbo’ ground. Permission on all other grounds was refused.
In 2014, the Appellant was convicted of an offence of actual bodily harm and malicious communication and received a sentence of 20 weeks' imprisonment.
On 21 st December 2015, the Court of Appeal approved a consent order remitting the matter to the UT “for determination of the appeal, limited to the ground of appeal under section 84(1)(c) of the 2000 Act, the “limbo” issue (ground 2)” on the basis that the UT failed to consider this in its 1 st May 2013 determination.
On 22 nd November 2016, the UT (UT Judge Allen) dismissed the Appellant's ‘limbo’ claim on human rights grounds. It is this decision that is appealed against.
On 3 rd February 2017, the UT (UT Judge Allen) refused the Appellant's application to appeal to the Court of Appeal.
On 27 th October 2017, the Appellant filed an application entitled “Application to revoke a deportation order/ Further protection-based submissions” following the promulgation of the Court of Appeal's judgment in AA (Iraq) v SSHD [2016] EWCA Civ 944 in which the Court amended the previous country guidance on Iraq contained in AA (Iraq) v SSHD [2015] UKUT 544 (IAC).
On 22 nd February 2018, permission to appeal was granted by the Court of Appeal.
The Appellant now has two young children born in the UK, who live with their mother but whom he sees. The genuineness and closeness of his relationship with the biological children is not disputed. He has a permanent job as a hotel manager and provides £600 per month in financial support for his children.
Decision appealed
The single ground before UT Judge Allen was the ‘limbo’ ground. This arose under s.84(1)(c) of the 2002 Act (see below). The ‘limbo’ ground was characterised by Mr Chirico in his skeleton before UT Judge Allen in his decision as an issue “…as to the effect upon the appellant's Article 8 rights and the state of limbo in which the respondent's decision would leave him, and in particular the impact of cancellation of the leave to remain which he had had for some twelve years” ([4]).
UT Judge Allen found that the Appellant had no Iraqi passport or other documentation and recorded that it was accepted by the SSHD that “it appeared to be the case that he was ‘unreturnable’ to Iraq” in line with the country guidance in AA (Iraq) v SSHD ( supra) ([5]).
UT Judge Allen noted that the Appellant did not seek to argue that the 2008 decision was not in accordance with the law and accepted that the SSHD had done what was required of her to make the deportation order (UT Decision, [14]). UT Judge Allen noted that the Appellant also accepted that questions arising in relation to the effect on him and his then family of removal from the UK were finally determined by the UT in its determination promulgated on 1 st May 2013 ([15]).
In the light of this, UT Judge Allen said (at [15]):
“[15] … It is necessary to proceed on the basis that the appellant's removal from the United Kingdom would not breach his family's protected rights. The issue is then whether the decision to make a deportation order itself breached the appellant's protected rights in the circumstances where he can neither be removed or make a lawful voluntary departure from the United Kingdom or where as Mr Chirico puts it, the only foreseeable effect of a deportation order would be to cancel his extant leave to remain.”
After considering the particular facts in this case and the authorities, including the dicta of Lady Hale in R (Khadir) v SSHD (see below), UT Judge Allen concluded as follows:
“[32] Bringing all these matters together, it is necessary to decide on the particular facts of this case, bearing in mind the best interests of the children, where the appropriate balance in the proportionality assessment lies. Given that the appellant provides £600 a month for their welfare and that they see him regularly, I accept that it is in their best interests that he remains in the United Kingdom and that is a primary but not a paramount factor. It is not reasonable to expect them to move to Iraq, and the appellant is in any event currently not removable to Iraq.
[33] In his favour also are the fact of the employment that he now has and the fact that he seems to be doing well in that steady employment and the potential impact on his mental health going back to the 2009 medical report. In addition there is the fact that he has been in this country for a long time and that were it not for the deportation order he would be entitled to stay indefinitely and thus would have had lawful leave throughout. There is also the fact that at least at present it is the case that he is not returnable to Iraq.
[34] On the other hand there is the offence that he committed in 2007 and also the more recent offence. It is not, in my view, unduly speculative to consider that there may come a time when he can be returned to Iraq. I accept that a failure to grant status may amount to an interference with private life, but in my view the circumstances in this case are not such as to show that despite the factors that...
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