Secretary of State for the Home Department v KF (Nigeria)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Baker
Judgment Date22 Nov 2019
Neutral Citation[2019] EWCA Civ 2051
Docket NumberCase No: C5/2017/3257

[2019] EWCA Civ 2051

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Deputy Upper Tribunal Judge Juss

OA/10128/2015

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE SENIOR PRESIDENT OF TRIBUNALS

and

Lord Justice Baker

Case No: C5/2017/3257

Between:
Secretary of State for the Home Department
Appellant
and
KF (Nigeria)
Respondent

Jack Anderson (instructed by Government Legal Department) for the Appellant

Celia Record (instructed by Direct Access) for the Respondent

Hearing dates: 16 July 2019

Approved Judgment

Lord Justice Baker
1

This is an appeal by the Secretary of State against the decision of the Upper Tribunal by which it dismissed an appeal against the decision of the First-tier Tribunal allowing an appeal against an order for the respondent's deportation. An anonymity direction has been given in respect of the respondent.

2

The respondent, who was born on 15 July 1991, is a citizen of Nigeria. In 2002, he came to the UK with his parents having been granted an entry clearance visa valid from 14 August 2002 until 14 February 2003. On 20 February 2004, his father submitted an application for indefinite leave to remain in this country with the respondent as his dependent. On 10 October 2008, the respondent was granted indefinite leave to remain.

3

On 3 June 2013, the respondent was convicted at Woolwich Crown Court of an offence of burglary and two counts of robbery and was sentenced to 3 years' imprisonment. He was therefore liable to deportation under the statutory automatic deportation regime. On 1 August 2013, he was served with a form notifying him of his liability to deportation and giving him the opportunity to make representations against a deportation order being made. On 4 March 2014, the respondent lodged representations against deportation on the basis that returning him to Nigeria would breach his rights under Article 8 of the ECHR. He stated that he had a family in the UK consisting of his partner, his parents and his son, a British citizen born on 19 June 2013.

4

In a letter dated 16 August 2014, the appellant rejected the respondent's representations, having concluded that his deportation would not breach Article 8. On 7 October 2014, the appellant made a deportation order in respect of the respondent under s.32(5) of the UK Borders Act 2007.

5

In September 2015, the respondent returned voluntarily to Nigeria. On 1 October 2015, he lodged an out of country appeal against the decision to deport him. By a decision dated 4 November 2016, the First-tier Tribunal allowed the respondent's appeal. The appellant was granted permission to appeal but by a decision of the Deputy Upper Tribunal Judge dated 9 August 2017, her appeal was dismissed. On 18 September 2017, the appellant's application for permission to appeal to this Court was refused by the Upper Tribunal.

6

On 30 November 2017, the appellant filed a notice of appeal out of time to this court. On 29 November 2018, Sir Stephen Silber granted permission to appeal, inter alia on the grounds that the second appeal test was satisfied because the proposed appeal raised an issue as to whether the approach adopted by the First-tier and Upper Tribunals satisfied the test set out in the decision of the Supreme Court in KO (Nigeria) v SSHD [2018] UKSC 53.

7

The appellant's application for an extension of time for filing the notice of appeal was not expressly dealt with on the grant of permission. In his argument before us, Mr Anderson claimed that the delay in filing the notice arose because the appellant did not receive notice of the Upper Tribunal's refusal of the application for permission to appeal until early November 2017. Ms Record objected to the extension of time on the grounds that the case involves the respondent's partner and very young child for whom any delay is prejudicial. For my part, I am satisfied that, in all circumstances, it is appropriate to grant an extension of time in this case.

8

Under s.3(5)(a) of the Immigration Act 1971, “a person who is not a British citizen is liable to deportation from the United Kingdom if … the Secretary of State deemed his deportation to be conducive to the public good.”

9

So far as relevant to this appeal, s.32 of the UK Borders Act 2007 provides:

“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.

(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).”

10

These provisions are subject to the exceptions set out in s.32 which include, under subsection (2)(a), “where removal of the foreign criminal in pursuance of the deportation order would breach … a person's Convention rights”, that is to say rights under ECHR, including those under Article 8, the right to respect for private and family life.

11

Part 5A of the Nationality, Immigration and Asylum Act 2002, inserted by s.19 of the Immigration Act 2014 and brought into force on 28 July 2014, introduced further provisions governing public interest considerations relating to Article 8. In particular, s.117A provides:

“117A Application of this Part

(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).”

S.117B sets out public interest considerations applicable in all cases. These include:

“(1) The maintenance of effective immigration controls is in the public interest.

(5) Little weight should be given to a private life established by a person when the person's immigration status is precarious.

(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.”

S.117C, headed “Article 8: additional considerations in cases involving foreign criminals”, provides:

“(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 will 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 consideration 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.”

12

The relevant provisions in the Immigration Rules, as amended with effect from 20 July 2014, are as follows:

“362 Where Article 8 is raised in the conduct of deportation under Part 13 of these rules, the claim under Article 8 will only succeed where the requirements of these rules as at 20 July 2014 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.

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 and in the public interest 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, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

399. This paragraph applies where paragraph 398 (b) … 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...

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