Secretary of State for the Home Department v AJ (Zimbabwe)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Elias,Lord Justice Vos
Judgment Date20 Oct 2016
Neutral Citation[2016] EWCA Civ 1012
Docket NumberCase No: C5/2014/2079 AND C5/2015/1968

[2016] EWCA Civ 1012

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)

Upper Tribunal Judge Martin (VH)

Upper Tribunal Judge Pinkerton (AJ)

DA/00352/2014 and DA/01965/2013

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Elias

and

Lord Justice Vos

Case No: C5/2014/2079 AND C5/2015/1968

Between:
The Secretary of State for the Home Department
Appellant
and
>AJ (Zimbabwe)
Respondent
The Secretary of State for the Home Department
Appellant
and
VH (Vietnam)
Respondent

Mathew Gullick (instructed by Government Legal Department) for the Appellant in AJ (Zimbabwe)

Russell Fortt (instructed by Government Legal Department) for the Appellant in VH (Vietnam)

Harshaka Kannangara (instructed by Direct Access) for the Respondent in AJ (Zimbabwe)

Jonathan Martin (instructed by Direct Access) for the Respondent in VH (Vietnam)

Approved Judgment

Lord Justice Elias
1

These two appeals were heard together. They share the following common features: each concerned a foreign criminal sentenced to between 12 months' and four years' imprisonment for criminal offences and then made subject to a deportation order by the Secretary of State; in each case the deportee successfully appealed on article 8 ECHR grounds to the First Tier Tribunal (FTT); in each case the principal basis of the FTT decision was that deportation would be a disproportionate interference with family life because it would have a significant detrimental effect upon the children of the deported criminal which outweighed the very powerful public interest in deporting foreign criminals and constituted "exceptional circumstances" within the meaning of rule 398 of the Immigration Rules; and in each case a further appeal by the Secretary of State to the Upper Tribunal (UT) failed on the grounds that the decision reached by the FTT displayed no misdirection in law and was an assessment which it could legitimately reach on the evidence.

2

The Secretary of State appeals against both UT decisions, essentially on the same grounds in each case. She submits that the FTT erred either in failing to appreciate quite how exceptional the circumstances must be in order to overcome the great weight which must be given to the public interest in deporting foreign criminals or, if it did properly appreciate that requirement, in making a finding that the circumstances were exceptional when that was not a conclusion open to it on the evidence. She submits that in each case the UT thereafter erred in failing to identify an error of law in the FTT decision.

The legal framework

3

The Secretary of State has the power to deport a person who is not a British citizen if she "deems his deportation to be conducive to the public good": section 3(5) of the Immigration Act 1971.

4

There is specific legislation regulating the way in which that power should be exercised in the case of foreign criminals. Section 32(4) of the UK Borders Act 2007 provides that for the purposes of section 3(5) of the Immigration Act, "the deportation of a foreign criminal is conducive to the public good". Subsection 32(5) then provides that the Secretary of State must make a deportation order in respect of a foreign criminal unless one of the exceptions in section 33 applies. The exceptions include, under subsection (2), a situation where deportation would breach a person's rights under the European Convention on Human Rights or would involve a breach of the UK's obligations under the Refugee Convention.

5

The Convention right which the convicted prisoner typically relies upon, as in these two appeals, is article 8. The foreign criminal contends that deportation would be a disproportionate interference with his family life so as to render deportation unlawful.

6

The definition of a foreign criminal is found in section 32(1) to (3) of the UK Borders Act as follows:

(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.

7

The statutory provisions are supplemented by the Immigration Rules which specifically regulate the relationship between deportation and the rights under article 8. (I set out the rules in force at the material time). They have since been amended with effect from 28 July 2014 to reflect important statutory changes made by the new part 5A of the Nationality, Immigration and Asylum Act 2002.)

8

The rules distinguish between those sentenced to imprisonment for a period longer than four years, those sentenced for periods between 12 months and four years, and those sentenced to lesser periods whose offending has nonetheless caused serious harm or who are persistent offenders. These appeals concern criminals falling into the middle category. In their cases the relevant rules are as follows:

"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."

Rule 399 is as follows:

"This paragraph applies where paragraph 398 (b) or (c) applies if —

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a) it would not be reasonable to expect the child to leave the UK; and

(b) there is no other family member who is able to care for the child in the UK; or

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and

(i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and

(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK."

9

There is also an exception in rule 399A where the foreign criminal has strong links with the UK as identified in that rule. It has no application to either of these cases.

The relevant legal principles

10

As rule 398 makes clear, if the foreign criminal is unable to avoid deportation by relying upon these detailed exceptions, there will need to be "exceptional circumstances" before a court can conclude that the public interest in deportation is outweighed by other factors.

11

There has been a plethora of cases which have come to this court concerning the application of article 8 to foreign criminals and in particular seeking to clarify the scope of the residual "exceptional circumstances" concept. The principles of law are well established and not in dispute in these appeals and therefore I will do no more than summarise the effect of the leading authorities:

(1) The rules establish a set of criteria which tribunals must apply when assessing the impact of article 8 in criminal deportation cases: MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544 para.2 per Lord Dyson MR.

(2) The rules are a complete code. Accordingly, when applying the "exceptional circumstances" criteria, the court should apply the article 8 proportionality test: MF (Nigeria) para.44.

(3) Unless the specific exceptions apply, the scales are very heavily weighted in favour of deportation. In MF (Nigeria) Lord Dyson said that there must be "very compelling reasons" to outweigh the public interest in deportation. These compelling reasons constitute the "exceptional circumstances" referred to in rule 398: MF paras 42–43.

(4) The justification for the courts giving such weight to the public interest in the deportation of foreign criminals is not simply that the Immigration Rules do so, it is that Parliament itself in section 32(5) of the UK Borders Act has stipulated that deportation should be the usual consequence of criminal offending: see SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; [2014] 1 WLR 544 para.54 per Laws LJ where he said that "only a very strong claim indeed" could override the public interest.

(5) A consequence of the rules constituting a comprehensive code is that when exercising the residual article 8 assessment where exceptional circumstances are relied upon, the tribunal must carry out the assessment "through the lens of the new rules" and that requires a recognition of the very considerable weight to be given to the public interest in deportation. This distinguishes the foreign criminal cases from other article 8 cases, such as where the Secretary of State seeks to remove illegal immigrants in circumstances engaging article 8, where no single factor carries such dominant weight and a more general balancing exercise will be appropriate: Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636 per Sales LJ,...

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