Secretary of State for the Home Department v JG (Jamaica)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lady Justice King,Lord Justice Moylan |
| Judgment Date | 12 June 2019 |
| Neutral Citation | [2019] EWCA Civ 982 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/0587 |
| Date | 12 June 2019 |
[2019] EWCA Civ 982
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Upper Tribunal (Immigration and Asylum Chamber)
McCloskey J and UTJ Lindsley
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal, Civil Division))
Lady Justice King
and
Lord Justice Moylan
Case No: C5/2016/0587
Mr Marcus Pilgerstorfer (instructed by the Treasury Solicitor) for the Appellant
Mr Manjit Gill QC (instructed by Olives Solicitors) for the Respondent
Hearing date: 5 th March 2019
Approved Judgment
INTRODUCTION
This is an appeal by the Secretary of State for the Home Department against a decision of the Upper Tribunal (Immigration and Asylum Chamber) (McCloskey J and UTJ Lindsley) dismissing an appeal against a decision of the First-tier Tribunal (FTTJ Burnett) which allowed the Respondent's appeal against a deportation order. The decision of the FTT was promulgated on 2 June 2015 and that of the UT on 16 November 2015. The Respondent's identity was anonymised in the FTT because the judgment involved sensitive evidence about one of his children, and we are prepared to take the same course. The case has had a troubled history. An initial FTT decision in the Respondent's favour was overturned by the UT, and the case was remitted to the FTT. (The Respondent was given permission to appeal to this Court against that decision, but the appeal was ultimately unsuccessful.) The listing of this appeal was delayed because it was thought that its outcome might be affected by other pending appeals.
After hearing counsel's submissions on behalf of the Secretary of State we concluded that the appeal should be dismissed and that it was unnecessary to call on counsel for the Respondent. We said that our reasons would follow. These are my reasons for coming to that conclusion.
THE BACKGROUND FACTS
The Respondent is a Jamaican national, now aged 40. He came to the UK on 7 April 2002. On 23 September 2003 he married a British citizen, to whom I will refer as NG. NG already had three children, then aged between 10 and 6, who lived with them as his step-children. She and the Respondent had no children together, though she has since had a further child by a different father, born in 2009. The relationship did not last, and at a date which does not appear from the papers the Respondent started a new relationship, with a woman to whom I will refer as CM. At the time of the hearing in the FTT she had one son by the Respondent, to whom I will refer as JG, who was then aged five: he is a British citizen. To anticipate, the principal reason why the FTT allowed the Respondent's appeal was the impact which his deportation would have on JG. I will give more details about that, and about the circumstances of the Respondent's life with CM and with NG and his step-children, in due course.
The Respondent has a bad criminal record. In February 2003 he was cautioned for possessing an offensive weapon in public. On 23 January 2004 he was sentenced to twelve months' imprisonment for possession of heroin and cocaine with intent to supply. Most relevantly for our purposes, on 23 September 2011 he was sentenced to five years' imprisonment on counts of possession of heroin and cocaine with intent to supply. He was released from custody in August 2013.
Reflecting his criminal record, the Respondent's immigration history is also complicated. He initially had leave to remain as a student, though he overstayed. Following the 2004 conviction he was the subject of a deportation order, but he appealed successfully and was later granted discretionary leave to remain until May 2011. He subsequently applied for indefinite leave to remain, but that was refused and the refusal was upheld on appeal. He has accordingly had no leave to remain since his release from custody in August 2013. The deportation order with which we are concerned was made on 17 June 2013.
THE LAW
By sections 32 and 33 of the United Kingdom Borders Act 2007 the Secretary of State is obliged to make a deportation order in the case of a foreign national who has been convicted of an offence for which he or she was sentenced to at least twelve months' imprisonment, unless their deportation would breach their rights under the European Convention on Human Rights. Typically the relevant rights are those under article 8 of the Convention – that is, the protection of private and family life. It is well established that the effect of sections 32 and 33 is that a tribunal hearing an appeal from a deportation order where deportation would engage article 8 must balance the Convention rights of the person whom it is proposed to deport against the public interest in the deportation of foreign criminals.
Prior to 28 July 2014 the Secretary of State's policy as to how that balance should be struck was set out in paragraphs 398–399A of the Immigration Rules. I need not quote them here, but I should note that paragraph 398 provided that in the case of foreign criminals sentenced to a term of imprisonment of at least four years “it [would] only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”. The effect of that language was considered by this Court in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 WLR 1192. Para. 42 of the judgment of the Court delivered by Lord Dyson MR explains that the test is not one of exceptionality as such, but rather that:
“… in approaching the question of whether removal is a proportionate interference with an individual's article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be ‘exceptional’) is required to outweigh the public interest in removal. In our view, it is no coincidence that the phrase ‘exceptional circumstances’ is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals.”
It continues, at para. 43:
“The general rule in the present context is that, in the case of a [foreign criminal sentenced to at least four years' imprisonment] very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the ‘exceptional circumstances’.”
Thus, in effect, the Court held that in a case of the kind in question the test of whether deportation would breach the article 8 rights of the foreign criminal would depend on whether there were “very compelling circumstances” in his or her case, which would of their nature be exceptional.
That approach was endorsed by the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799: see paras. 37–38 of the judgment of Lord Reed (pp. 4816–7). In para. 38 Lord Reed said that cases of the relevant kind:
“… will be dealt with on the basis that great weight should generally be given to the public interest in the deportation of such offenders, but that it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in SS (Nigeria). The countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders, as assessed by Parliament and the Secretary of State.”
There is a similar observation at the end of para. 50 (p. 4819B).
By the Immigration Act 2014, with effect from 28 July 2014 a new Part 5A was introduced into the Nationality, Immigration and Asylum Act 2002. This comprises sections 117A–117D. Section 117A (2) requires a tribunal considering the question whether an interference with article 8 rights is justified to:
“(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.”
I need not set out section 117B. Section 117C reads as follows:
“(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 1 applies where —
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”
The phrase “qualifying child” in section 117C (5) is defined in section 117D (1) as:
“a person who is under the age of 18 and who —
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven...
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