Secretary of State for the Home Department v Thierno Barry
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Singh |
| Judgment Date | 17 April 2018 |
| Neutral Citation | [2018] EWCA Civ 790 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2015/4016 |
| Date | 17 April 2018 |
[2018] EWCA Civ 790
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
and
Lord Justice Singh
Case No: C5/2015/4016
Ms Carine Patry (instructed by the Government Legal Department) for the Appellant
Mr Manjit S. Gill QC and Ms Frances Shaw (instructed by Thompson & Co) for the Respondent
Hearing date: 22 March 2018
Judgment Approved
Introduction
This is a second appeal by the Secretary of State for the Home Department from the decision of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) dated 23 September 2015, which was itself an appeal by the Secretary of State from the decision of the First-tier Tribunal (“FTT”) dated 9 June 2014. Longmore LJ granted permission to appeal to this Court on 18 July 2016.
There was an earlier hearing of the appeal against the FTT decision. The UT (King J and UTJ Martin) heard the appeal on 8 October 2014 and dismissed it orally, but never promulgated the written reasons. That led to the appeal having to be re-heard by the UT.
The appeal to the UT came before McCloskey J (the then President of the Immigration and Asylum Chamber) and UTJ Reeds on 15 September 2015 and was dismissed on 23 rd September 2015.
I note that, in the Appellant's Notice, at Section 5, the Appellant has wrongly identified the UT's decision to refuse permission to appeal to this Court as the subject of this appeal. However, it is clear to all concerned that what is under appeal is in fact the substantive dismissal of the Secretary of State's appeal to the UT.
Background
The Respondent is a national of Guinea and was born on 1 October 1983. He entered the UK on 22 March 2004 with leave as a student. He was granted further periods of leave to remain, again as a student, until 30 November 2009.
The Respondent has been in a relationship with a British citizen since 2007 and they married on 22 March 2009. They have two sons together, who were born on 9 November 2009 (known in these proceedings as O) and 13 January 2012 (known as M). Both children are British citizens.
On 7 July 2009 the Respondent assaulted someone with a Stanley knife. He pleaded guilty to unlawful wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861. On 11 January 2010 he was sentenced by HHJ Richardson to three years imprisonment. He was released from custody in early 2011.
On 4 June 2013, the Secretary of State decided to deport the Respondent under the automatic deportation provisions of section 32(5) of the UK Borders Act 2007, for the reasons set out in a decision letter of that date; and on the same date made a deportation order against the Respondent. The Respondent appealed to the FTT, which allowed his appeal. The Secretary of State's appeal to the UT was dismissed.
Material Legislation
Section 32 of the UK Borders Act 2007 applies to the present case because the Respondent is a “foreign criminal” within the meaning of subsection (1). This is because (a) he is not a British citizen; (b) he was convicted in the UK of an offence and (c) “Condition 1” applies, since he was sentenced to a period of imprisonment of at least 12 months: see subsection (2).
Subsection (5) provides that in such circumstances the Secretary of State must make a deportation order but this is subject to section 33.
Section 33(1) provides that, so far as material, section 32(5) does not apply where an exception applies. The relevant exception is Exception 1, where removal of the foreign criminal in pursuance of the deportation order would breach a person's Convention rights: see subsection (2)(a). The Convention rights are as set out in the Human Rights Act 1998.
At the material time the provisions of section 19 of the Immigration Act 2014 did not apply. Section 19 amended the Nationality, Immigration and Asylum Act 2002 so as to insert Part 5A into that Act: in particular section 117C, which sets out additional considerations in cases involving foreign criminals.
Relevant Immigration Rules
It is not the version of the Immigration Rules (HC 395) which came into force in 2014 which is relevant on the facts of the present case. Rather it is the version as amended in 2012.
Para. 398 of the Rules provided:
“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;
(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; or
(c) the deportation of the person is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law
the Secretary of State in assessing the 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.”
Para. 399 applied to the present case. Para. 399A did not. Para. 399 provided:
“This paragraph applies where paragraph 398(b) or (c) applies if —
(a) the person has a genuine or 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 last 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 status 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.”
In the present case para. 399(a) did not apply because the Respondent's wife could remain in the UK to look after the children; and para. 399(b) did not apply because the Respondent had not lived in the UK with valid leave for at least 15 years. Para. 398 has been amended since the relevant time. However, Ms Patry on behalf of the Secretary of State relies on the language of the amended version because she submits that it stated what had already been the effect of the previous version. As amended, para. 398 ends:
“… 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.”
The approach to be taken in cases of this kind
The approach to be taken in cases of this kind was authoritatively set out by the Supreme Court in a decision which came after the determinations of the FTT and the UT in the present case: Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799.
I had occasion recently to set out the relevant passages in the judgment of the Supreme Court in Hesham Ali in the decision of this Court in Secretary of State for the Home Department v Kirtis Millar [2018] EWCA Civ 28, at paras. 45–48:
“45. Before concluding I should remind the UT of the correct approach to be taken in cases of this kind, as authoritatively set out by Lord Reed JSC in Hesham Ali. At para. 46 he said:
‘… The special feature in [this] context is that the decision under review has involved the application of rules which have been made by the Secretary of State in the exercise of a responsibility entrusted to her by Parliament, and which Parliament has approved. It is the duty of Appellate Tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. But, where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, they should attach considerable weight to that assessment: in particular, that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender's deportation almost always outweighs countervailing considerations of private or family life; that great weight should generally be given to the public interest in the deportation of a foreign offender who has received a custodial sentence of more than 12 months [that applies to the present case]; and that, where the circumstances do not fall within paragraphs 399 or 399A, the public interest in the deportation of such offenders can generally be outweighed only by countervailing factors which are very compelling …’
46. Further, at para. 50 Lord Reed summarised the position as follows:
‘… In summary, therefore, the tribunal carries out its task on the basis of the facts as it finds them to be on the evidence before it, and the law as established by statute...
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