Sajid Zulfiqar v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Arnold LJ,Snowden LJ |
| Judgment Date | 14 April 2022 |
| Neutral Citation | [2022] EWCA Civ 492 |
| Docket Number | Case No: C5/2021/0341 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 492
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Arnold
and
Lord Justice Snowden
Case No: C5/2021/0341
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge O'Callaghan and Upper Tribunal Judge Mandalia
Strand, London, WC2A 2LL
Richard Drabble QC, Ranjiv Khubber and Shuyeb Muquit (instructed by Turpin Miller LLP) for the Appellant
Rory Dunlop QC and Rachel Sullivan (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 1 December 2021
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to BAILII. The date and time for hand-down is deemed to be 10:30 on Thursday, 14 April 2022
INTRODUCTION
The Appellant was born in the UK in 1979. His father had both British and Pakistani nationality; his mother was a Pakistani national (though she acquired British citizenship shortly after he was born). Accordingly from birth he had both British and Pakistani nationality. He has lived in the UK all his life and has only visited Pakistan once.
In 2005 the Appellant was convicted of murder and sentenced to life imprisonment with a minimum term of fifteen years. In August 2011 he applied to renounce his British citizenship in order to qualify for consideration for a transfer to Pakistan to serve the remainder of his sentence there: his father had returned to live in Pakistan and was ill, and he wanted to be near him. That application was approved and he ceased to be a British citizen with effect from 21 October 2011. He then applied for a transfer, but the application was refused.
In 2013, while in prison, the Appellant married. His wife is a British citizen. She had two children by a previous relationship, but it is not suggested that the Appellant had a parental relationship with them.
On 12 October 2016 the Secretary of State issued the Appellant with a deportation notice in reliance on the “automatic deportation” provisions applying to foreign criminals under section 32 (5) of the UK Borders Act 2007. She subsequently withdrew that notice on the basis that he was a British citizen at the time of his conviction; but on 16 January 2018 she served a fresh notice on the basis of the general power of deportation under section 3 (5) (a) of the Immigration Act 1971. I set out the statutory provisions below.
The Appellant no longer wishes to return to Pakistan: he wished on his release to be able to continue to live in the UK with his wife. He accordingly claimed that his deportation would be incompatible with his rights under article 8 of the European Convention on Human Rights (“the ECHR”) and accordingly unlawful by virtue of section 6 of the Human Rights Act 1998. By letter dated 3 October 2018 that claim was refused. The Appellant was released from detention on 18 September 2020 and has remained on immigration bail since then.
The Appellant appealed to the First-tier Tribunal (“the FTT”). By a decision promulgated on 13 November 2019 FTT Judge Feeney dismissed his appeal. The Appellant appealed to the Upper Tribunal (“the UT”). The appeal was heard by a panel comprising Upper Tribunal Judges O'Callaghan and Mandalia. By a decision promulgated on 11 September 2020 the appeal was dismissed.
This is an appeal against the decision of the UT, with permission granted by Carr LJ. The Appellant has been represented by Mr Richard Drabble QC, leading Mr Ranjiv Khubber and Mr Shuyeb Muquit; the Secretary of State has been represented by Mr Rory Dunlop QC and Ms Rachel Sullivan. Mr Muquit appeared for the Appellant in both the FTT and the UT: the Secretary of State was represented by Presenting Officers.
The issue of general importance raised by the appeal, and which persuaded Carr LJ that the second appeals test was satisfied, is whether the Appellant's case is covered by section 117C of the Nationality, Immigration and Asylum Act 2002, which prescribes the approach to be taken in striking the article 8 balance in the case of decisions whether to deport foreign criminals. That depends on the date at which the question whether he was a British citizen has to be answered. As we have seen, the Secretary of State took the view that for the purpose of the 2007 Act the relevant date was the date of the Appellant's conviction, at which point he was still a British citizen; but it was her case, at least in the UT, that for the purpose of section 117C the relevant date is the date of the deportation decision, by which time he had renounced his citizenship. The UT upheld that contention. By his ground 1 the Appellant contends that it was wrong to do so. I will call this “the ground 1 issue”: it raises a pure question of statutory interpretation, and I will take it first. Grounds 2–6 raise various case-specific points on the reasoning of the FTT and the UT.
I should mention for completeness that it was part of the Appellant's case before the FTT that he had been led by the Home Office to believe that if he renounced his British citizenship an application to be returned to Pakistan to serve the remainder of his sentence would be granted. The FTT rejected that case as a matter of fact and it was not revived in the UT or before us.
THE GROUND 1 ISSUE
THE STATUTORY PROVISIONS
The Immigration Act 1971. The Secretary of State's power of deportation derives from section 3 (5) of the 1971 Act, which reads (so far as material):
“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; or
(b) …”
The UK Borders Act 2007. The effect of sections 32–34 of the 2007 Act is that in the case of a “foreign criminal” as defined the Secretary of State is obliged, subject to certain specified exceptions, to exercise her power of deportation under section 3 (5) of the 1971 Act. Although we are not in this appeal concerned with the substance of the provisions I will have to set out most of both sections because their structure and the tenses employed are material 1:
“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.
(3) Condition 2 is that –
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(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).”
(6)-(7) …”
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.
(3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.
(4)-(7) …
34. Timing
(1) Section 32(5) requires a deportation order to be made at a time chosen by the Secretary of State.
(2)-(4) …”
It will be seen that the phrase “automatic deportation” is not strictly accurate: the effect of sections 32–34 is to create a presumption in favour of deportation of foreign criminals as defined, rebuttable if one of the Exceptions under section 33 applies.
Part 5A of the Nationality, Immigration and Asylum Act 2002
Part 5A of the 2002 Act (introduced by the Immigration Act 2014) has the title “Article 8 of the ECHR: Public Interest Considerations”. Section 117A reads:
“(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).”
For present purposes it is unnecessary to set out section 117B, which enumerates the “public interest considerations applicable in all cases”. Section 117C is headed “Article 8: additional considerations in cases involving foreign criminals” and reads:
“(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...
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