Secretary of State for the Home Department v MA (Somalia)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Ryder,Sir Colin Rimer |
| Judgment Date | 05 February 2015 |
| Neutral Citation | [2015] EWCA Civ 48 |
| Docket Number | Case No: C5/2013/3472 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 2015 |
[2015] EWCA Civ 48
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Perkins
DA/00124/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Ryder
and
Sir Colin Rimer
Case No: C5/2013/3472
Kate Grange (instructed by The Treasury Solicitor) for the Appellant
Hugh Southey QC (instructed by Wilson Solicitors LLP) for the Respondent
Hearing date: 27 January 2015
This case concerns the proposed deportation of the respondent, MA, pursuant to the automatic deportation provisions of the UK Borders Act 2007 ("the 2007 Act") by reason of his conviction in 2007 for offences of rape and attempted rape, for which he was sentenced to 10 years' imprisonment. His appeal against deportation was allowed by the First-tier Tribunal ("the FTT") on Article 8 ECHR grounds. The Secretary of State's appeal to the Upper Tribunal ("the UT") against the FTT's determination was dismissed. The Secretary of State now appeals to this court, with permission granted by Patten LJ, against the UT's determination.
It is common ground in this court that the FTT erred in law by considering Article 8 outside the relevant provisions of the Immigration Rules, namely paragraphs 398–399A: it was held in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 WLR 544 that those paragraphs constitute a complete code for the application of Article 8 in this context. The issue between the parties on the Secretary of State's appeal is whether it was a material error for the tribunal to approach the matter in the way it did.
An altogether separate issue, raised by way of a respondent's notice on behalf of MA, is whether the UT lacked jurisdiction to hear the appeal from the FTT because a condition precedent to the grant of permission to appeal was not satisfied, which raises a further question as to the jurisdiction of this court to entertain the issue in the context of the present appeal. Although that is strictly a threshold point, it does not get off the ground on the facts and I will therefore defer consideration of it until I have considered the Secretary of State's appeal.
The facts
MA was born in March 1982 or March 1984 and is therefore 30 or 32 years of age. He originates from northern Somalia. In 1988 he fled with his family to Ethiopia. In 1990 his mother entered the UK with MA's younger brother. MA and two other siblings joined them in February 1993. His father arrived just over a year later. Three further children of the family were born subsequently. The entire family was granted exceptional leave to remain and then, in June 2000, indefinite leave to remain. By 2004 all the members of the family had gained British citizenship save for MA, who had not applied.
The offences that triggered the deportation order were committed by MA in 2006. He attacked a pregnant woman when she was asleep in her own bed; he held a knife to her throat, threatening to kill her, while he raped her and committed a further offence of attempted rape. He was released from custody in December 2011. The decision to deport him was served in January 2013. It is proposed to remove him to Somaliland. There is no dispute that he is liable to deportation under section 32 of the 2007 Act, as a foreign criminal who has received a sentence of imprisonment of at least 12 months, unless removal would be in breach of his Convention Rights or the UK's obligations under the Refugee Convention.
On MA's appeal against the deportation decision, the FTT first rejected an asylum claim. It then considered the case under paragraphs 398–399A of the Immigration Rules. At that time paragraph 398 provided in material part:
"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
(a) 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 at least 4 years;
…
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."
Neither paragraph 399 nor paragraph 399A applied in this case and the tribunal found that the circumstances were not "exceptional" for the purposes of paragraph 398. As appears from paragraph 16 of its determination, it approached the issue of exceptionality on the basis that exceptional cases should be numerically rare and that a case is not exceptional just because the exceptions to deportation in paragraph 399 or paragraph 399A have been missed by a small margin. "Instead, 'exceptional' means circumstances in which deportation would result in unjustifiable harsh consequences for the individual or their family such that deportation would not be proportionate. That is likely to be the case only very rarely".
Having found that the circumstances were not exceptional for the purposes of paragraph 398, the tribunal took the view that it should nevertheless go on to consider whether MA's deportation would amount to a breach of Article 8. It reminded itself that exceptionality is not the test under Article 8. It then said:
"25. In addition, we have reminded ourselves of the case of R (on the application of Razgar) v Secretary of State for the Home Department [2004] UKHL 27 and the need to consider all the separate elements of Article 8 before reaching a final decision. It was not disputed at the appeal hearing that the Appellant has lived here for more than 20 years and lives with close relatives and has very regular contact with his parents and siblings. Taking this and the totality of the evidence into account and applying a balance of probabilities we find it would be a breach of Article 8(1) of the ECHR to deport the Appellant to Somaliland. However, we have also taken into account that, for the purposes of Article 8(2), the Appellant is liable to automatic deportation under Section 33(5) of the UK Borders Act 2007. In addition, we accept that the United Kingdom is entitled to impose strict immigration controls to protect the public interest in the prevention of disorder and crime and the protection of the rights and freedoms of others."
The tribunal stated that it was for the Secretary of State to establish that MA's deportation would be proportionate. It started its consideration of the proportionality balance by considering his criminal record, referring to the index offending and stating that it did not seek to minimise its seriousness. It continued:
"27. We have also taken into account the case of Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 00046 and note that in a case of automatic deportation, full account must be taken of the strong public interest in removing foreign citizens convicted of serious offences, which lies not only in the prevention of further offences on the part of the individual concerned but in deterring others from committing them in the first place …."
The tribunal said that the starting point was the judge's sentencing remarks. It took into account the circumstances of the offence and the fact that MA did not acknowledge his guilt at trial or while serving his sentence and therefore did not show remorse for a considerable time.
In paragraphs 28–31 the tribunal found that it was shame and the fear that he would be disowned by his family that led MA to refuse to accept his guilt during that period. It observed, however, that since his release he had accepted his guilt and had been focusing on victim empathy work. His probation officer assessed him as posing a medium risk of harm with a low to medium risk of reoffending. A psychiatric report noted that he had voiced regret and remorse about the offence and there was now a low risk of him committing further serious violent or sexual offences. He had not breached the terms of his immigration bail which included an electronic tag and curfew requirement. He was now living with an uncle and family and was no longer mixing with the friends he had previously associated with. He spent much of the time permitted under the terms of the curfew caring for his mother's aunt who suffered from numerous ailments, had frequent falls and very impaired mobility. The tribunal found that it must take a considerable amount of dedication to care for her on a daily basis. Account was taken of the fact that MA had been fined for an offence of possession of cannabis committed while he was on release on licence, but the tribunal noted that he had since completed a drug awareness course and had tested negative for any further use. It evidently did not attach much weight to that offence or to a very small number of minor infringements of Prison Rules while MA was in custody. It took into account the qualifications he had obtained in prison and that he would be in a better position to obtain skilled employment in the future.
The tribunal went on at paragraphs 32–36 to consider a variety of factors that weighed in the balance in MA's favour. I should quote paragraph 33 because it featured specifically in argument before us:
"33. We also note that in Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 00046 it was found that where a settled migrant who has lawfully spent...
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