Secretary of State for the Home Department v SC (Jamaica)
| Jurisdiction | England & Wales |
| Judge | Sir Ernest Ryder,Lord Justice Henderson,Lord Justice Davis |
| Judgment Date | 20 December 2017 |
| Neutral Citation | [2017] EWCA Civ 2112 |
| Docket Number | Case No: C5/2016/0009 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2017 |
[2017] EWCA Civ 2112
Lord Justice Davis
THE SENIOR PRESIDENT OF TRIBUNALS
and
Lord Justice Henderson
Case No: C5/2016/0009
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UTIAC
Upper Tribunal Judge Canavan
DA006492013
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Zane Malik (instructed by Government Legal Department) for the Appellant
Miss Abigail Smith (instructed by Birnberg Peirce & Partners) for the Respondent
Hearing date: 2 November 2017
Judgment Approved
Sir Ernest Ryder, Senior President:
This is the appeal of the Secretary of State from the determination of Upper Tribunal Judge Canavan sitting in the Upper Tribunal (Immigration and Asylum Chamber) promulgated on 21 October 2015. The UT upheld the decision of the First-tier Tribunal and dismissed the Secretary of State's appeal. The FtT had allowed SC's appeal on human rights grounds ie it made findings in relation to articles 3 and 8 ECHR which were said to engage the exception to the automatic deportation regime in section 32(5) of the UK Borders Act 2007 [‘the 2007 Act’]. The Secretary of State's original decision was that the automatic deportation regime applied to SC's criminal offending with the consequence that he was to be deported.
Background:
The following factual summary is taken from paragraphs 2 to 7 of the judgment of the FtT.
SC is a national of Jamaica, born on 25 December 1991. He arrived in the United Kingdom on 26 December 2001 at the age of 10. He was refused leave to enter as a visitor on that occasion but was granted temporary admission until 25 January 2002. In December 2002 SC's mother applied for asylum with SC as her dependant. The claim, which was based on his mother's sexuality, was initially refused; however an appeal against the decision was subsequently allowed and SC was granted indefinite leave to enter the UK as a refugee on 9 October 2003.
SC's offending history began during 2005 when he was reprimanded for destroying or damaging property. In 2006 he received two warnings for taking a motor vehicle and destroying or damaging property. Between 2007 and 2012 he acquired 14 criminal convictions for a total of 28 offences. These include a conviction for robbery on 1 November 2007; convictions for three robbery offences, attempted robbery and common assault in 2008; a conviction for assault and having an article with a blade in 2009; having an article with a blade in 2010 and using threatening, abusive or insulting words or behaviour in 2011. In addition, SC has been convicted of 9 offences relating to the police, courts or prisons and a number of driving offences.
The most recent conviction and the trigger for the Secretary of State's deportation decision was on 11 June 2012 when SC was convicted of assault occasioning actual bodily harm, having an article with a blade and breach of an anti-social behaviour order. SC was sentenced to a period of two years detention in a young offenders' institution for the assault conviction.
On 22 January 2013, the Secretary of State wrote to SC (having previously invited representations from him) in order to inform him that by reference to Article 1C of the 1951 Refugee Convention the circumstances in which he had been recognised as a refugee had ceased to exist and therefore there was no longer a risk of a breach of his article 2 and 3 rights. His refugee status accordingly ceased.
On 20 March 2013 the Secretary of State wrote again to inform SC of her decision to make a deportation order under section 32(5) of the 2007 Act. In a letter served with the notice of decision, the Secretary of State explained why it was concluded that SC's circumstances did not fall within any of the exceptions to automatic deportation in section 33 of the 2007 Act.
SC lodged his appeal with the FtT on 27 March 2013 under section 82 of the Nationality, Immigration and Asylum Act 2002. In his grounds of appeal he argued that the decision was not in accordance with the law; the discretion ought to have been exercised differently; the decision breached articles 2, 3 and 8 ECHR and failed to consider section 55 of the Borders, Citizenship and Immigration Act 2009.
Judge Kamara allowed the appeal in a decision of the FtT promulgated on 6 March 2015. The Secretary of State appealed the decision to the UT. Upper Tribunal Judge Canavan dismissed the appeal in a decision promulgated on 21 October 2015. The Secretary of State sought permission to appeal to the Court of Appeal which was granted on 2 June 2016.
The statutory scheme:
The statutory scheme for the automatic deportation of foreign criminals from the United Kingdom is contained in section 32 of the 2007 Act. Section 32(1) in conjunction with section 32(2) defines “foreign criminal”: a description which it is accepted applies to SC. The Secretary of State is obliged to make a deportation order in respect of a foreign criminal (ie automatic deportation) by section 32(5). Section 32(4) also provides that the deportation of a foreign criminal is conducive to the public good for the purpose of section 3(5)(a) of the Immigration Act 1971.
The exceptions to the automatic deportation regime are contained in section 33 of the 2007 Act. Section 33(2) provides that a foreign criminal is not to be deported where that would breach that person's (ECHR) Convention rights or the United Kingdom's obligations under the Refugee Convention.
Given the engagement of Article 3 ECHR in deportation decisions ie that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”, humanitarian protection is provided for in any consideration of deportation by rules on internal relocation. Paragraph 339O of the Immigration Rules provides:
“(i) The Secretary of State will not make:
(a) a grant of refugee status if in part of the country of origin a person would not have a well founded fear of being persecuted, and the person can reasonably be expected to stay in that part of the country; or
(b) a grant of humanitarian protection if in part of the country of return a person would not face a real risk of suffering serious harm, and the person can reasonably be expected to stay in that part of the country.
(ii) In examining whether a part of the country of origin or country of return meets the requirements in (i) the Secretary of State, when making a decision on whether to grant asylum or humanitarian protection, will have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the person.
(iii) (i) applies notwithstanding technical obstacles to return to the country of origin or country of return”
Where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's rights under article 8 ECHR, Part 5A of the Nationality, Immigration and Asylum Act 2002 [‘the 2002 Act’] applies. Section 117A of the 2002 Act states:
“(1) This Part applies where a court of 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 case 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).”
Section 117C of the 2002 Act, so far as is relevant, sets out the following considerations to which the court or tribunal must have regard in cases concerning the deportation of foreign criminals:
“(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 …
(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.”
There are also applicable Immigration Rules which were made under section 3(2) of the Immigration Act 1971. The relevant Immigration Rules concerning deportation and article 8 ECHR are paragraphs A398 to 399A. Paragraph A398 provides that:
“These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked.”
Paragraph 398 provides that:
“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 and in the public interest because they have been convicted of an offence for which they have...
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