Secretary of State for the Home Department v Emmanuel Oluwaseyi Olarewaju
| Jurisdiction | England & Wales |
| Judge | Lord Justice Newey,Lord Justice Simon |
| Judgment Date | 21 March 2018 |
| Neutral Citation | [2018] EWCA Civ 557 |
| Date | 21 March 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/1338 |
[2018] EWCA Civ 557
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Eshun
DA/00674/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon
and
Lord Justice Newey
Case No: C5/2016/1338
Miss Catherine Rowlands (instructed by the Government Legal Department) for the Appellant
Miss Carine Patry (instructed by Duncan Lewis Solicitors) for the Respondent
Hearing date: 8 March 2018
Judgment Approved
This is an appeal by the Secretary of State against the dismissal by the Upper Tribunal (Upper Tribunal Judge Eshun) on 18 January 2016 of her appeal from a decision of the First-tier Tribunal (“the FTT”) (First-tier Tribunal Judge Beach) dated 24 June 2015. By her decision, Judge Beach allowed an appeal by Mr Emmanuel Oluwaseyi Olarewaju against his deportation.
Basic facts
Mr Olarewaju is a Nigerian national who was born on 9 September 1996. He entered the United Kingdom with his mother and siblings on his ninth birthday under a family visit visa. They remained in this country when the visa expired.
On 15 March 2010, when he was aged 13, Mr Olarewaju was convicted of robbery and sentenced to a referral order of four months. On 18 May of the following year, a 12-month youth rehabilitation order was imposed after he had been convicted of possession of a knife/sharp pointed article in a public place, possession of a Class B controlled drug and handling stolen goods. On 26 June 2012, he was convicted on two counts of possessing a Class A controlled drug with intent to supply, for which he was sentenced to 18 months' detention and training order. While in custody, he assaulted another inmate, as a result of which he was convicted in 2013 of battery.
On 12 July 2013, Mr Olarewaju and his mother and siblings were granted discretionary leave to remain in the United Kingdom. In Mr Olarewaju's case, however, that leave expired on 9 September 2014, his 18 th birthday. He had, moreover, been informed in a letter of 12 July 2013 that he would remain liable for deportation.
Mr Olarewaju had already, on 13 March 2013, been issued with notice of liability to deportation. On 1 April 2014, he was served with a deportation order. The FTT, however, allowed his appeal against deportation, and the Upper Tribunal upheld that decision. It is those decisions that the Secretary of State now challenges in this Court.
We were told that Mr Olarewaju was sentenced on 26 August 2016 to 44 months in a Young Offender Institution for supplying cocaine on 10 February of that year. That conviction can, however, have no bearing on the matters that we have to decide. Since the offence post-dated their decisions, neither the FTT nor the Upper Tribunal could have known of it.
The legal framework
Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the United Kingdom if, among other things, “the Secretary of State deems his deportation to be conducive to the public good”. Where, in cases concerning the deportation of “foreign criminals” (who include persons who are not British citizens who have been convicted in the United Kingdom and sentenced to detention in an institution for young offenders of at least 12 months), the question arises of whether an interference with a person's right to respect for private and family life is justified under article 8(2) of the European Convention on Human Rights, the Court or Tribunal is directed by section 117A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) to have regard, in particular, to the considerations listed in section 117C. That section 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 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.”
In NA (Pakistan) v Home Secretary [2016] EWCA Civ 662, [2017] 1 WLR 207, Jackson LJ, giving the judgment of the Court of Appeal, noted (at paragraph 24) that it is a “curious feature of section 117C(3) [of the 2002 Act] … that it does not make any provision for medium offenders who fall outside Exceptions 1 and 2”. The Court concluded (in paragraph 28) that, on a proper construction of section 117C(3), it provides that for “medium offenders” (i.e. those with sentences of between one and four years' imprisonment):
“the public interest requires C's deportation unless Exception 1 or Exception 2 applies or unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2”.
(Emphasis added.)
So construed, section 117C of the 2002 Act chimes with paragraph 398 of the Immigration Rules (“the Rules”). As it stood at the date of the FTT's decision, paragraph 398 stated:
“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.”
Paragraph 399A of the Rules provided:
“This paragraph applies where paragraph 398(b) or (c) applies if —
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”
The Court of Appeal considered the meaning of “very compelling circumstances, over and above those described in Exceptions 1 and 2” (as found in section 117C(3) of the 2002 Act) in the NA (Pakistan) case. The Court concluded (in paragraph 29) that a foreign criminal facing deportation is not “altogether disentitled from seeking to rely on matters falling within the scope of the circumstances described in Exceptions 1 and 2 when seeking to contend that ‘there are very compelling circumstances, over and above those described in Exceptions 1 and 2’”. The position is rather that:
“a foreign criminal is entitled to rely upon such matters, but he would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 (and in paragraphs 399 or 399A of the 2014 rules), or features falling outside the circumstances described in those exceptions and those paragraphs, which made his claim based on article 8 especially strong”.
In the case of a medium offender, therefore (as explained in paragraph 32):
“if all he could advance in support of his article 8 claim was a ‘near miss’ case in which he fell short of bringing himself within either Exception 1 or Exception 2, it would not be possible to say that he had shown that there were ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’. He would need to have a far stronger case than that by reference to the interests protected by article 8 to bring himself within that fall back protection. But again, in principle there may be cases in which such an offender can say that features of his case of a kind described in Exceptions 1 and 2 have such great force for article 8 purposes that they do constitute such very compelling circumstances, whether taken by themselves or in conjunction with other factors relevant to article 8 but not falling within the factors described in Exceptions 1 and 2. The decision-maker, be it the Secretary of State or a tribunal, must look at all the matters relied upon collectively, in order to determine whether they are sufficiently compelling to outweigh the high public interest in deportation.”
The law relating to the deportation of foreign criminals was considered by the Supreme Court in Ali v Home Secretary [2016] UKSC 60, [2016] 1 WLR 4799. At the dates with which it was concerned, sections 117A to 117D of the 2002 Act were not yet in force, but paragraphs 398 and 399A of the Rules were already in very much the form set out above, though paragraph 398 then...
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