Secretary of State for the Home Department v Mr (Pakistan)
| Jurisdiction | England & Wales |
| Judge | Lord Justice David Richards,Sir Geoffrey Vos,Lady Justice Asplin |
| Judgment Date | 12 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1598 |
| Date | 12 July 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/3799 |
[2018] EWCA Civ 1598
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Bruce
DA/01745/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
THE CHANCELLOR OF THE HIGH COURT
Lord Justice David Richards
and
Lady Justice Asplin
Case No: C5/2016/3799
Neil Sheldon (instructed by the Government Legal Department) for the Appellant
John Nicholson (instructed by Duncan Lewis & Co) for the Respondent
Hearing date: 19 June 2018
The issue on this appeal is the proper weight to be given to the public interest in the deportation of foreign criminals pursuant to the Immigration Rules and the Nationality, Immigration and Asylum Act 2002 in the context of appeals against deportation on the basis of article 8 of the European Convention on Human Rights (“Article 8”) concerning the right to respect for private and family life.
This appeal by the Secretary of State for the Home Department is against a determination made by Judge Bruce on 5 July 2016, sitting in the Upper Tribunal (Immigration and Asylum Chamber) (the “UT”) upholding the determination of Judge Chambers in the First Tier Tribunal (Immigration and Asylum Chamber) (the “FTT”) dated 23 February 2016. The FTT allowed an appeal by MR, a Pakistan national, against the Secretary of State's decision of 27 August 2014 refusing to revoke a deportation order dated 16 January 2013 (the “Deportation Order”). The Deportation Order had been made following MR's conviction for fraud by abuse of position for which he was sentenced to 15 months' imprisonment. The appeal was allowed on the basis of Article 8, MR having remained in the United Kingdom after the making of the Deportation Order, married a British citizen and had two children with her. The UT dismissed the Secretary of State's appeal on the basis that despite the fact that the FTT determination did not contain a methodical analysis of MR's Article 8 claim viewed through the framework of Part 13 of the Immigration Rules, it was well reasoned and its structure did not amount to a legal defect requiring it to be set aside: UT Determination at [24] – [26].
The grounds of appeal are that the FTT misdirected itself in law: by failing to consider the Article 8 claim through the prism of the Immigration Rules instead of undertaking a freestanding “ Razgar” analysis and the UT erred in upholding the determination and finding that the approach was immaterial to the outcome; and that the FTT failed to give proper weight to the public interest in the deportation of foreign criminals, specifically by failing to give proper weight to the nature and history of MR's offending and his immigration status and the UT erred in upholding the approach. Permission was also granted on the ground of perversity but it was withdrawn at the hearing.
Background
As I have already mentioned, MR is a national of Pakistan. He is 35 years of age. He first entered the United Kingdom on 25 October 2002, under a student visa. It was subsequently extended until 31 January 2010. Further leave to remain was refused and on 20 October 2011, he was notified that he was liable to be removed.
At that point he had eight convictions: for use of a false instrument; driving whilst uninsured on three separate occasions; not having a driving test certificate; resisting or obstructing a constable; driving whilst under the influence of alcohol; and failing to surrender to custody within the appointed time. He also admitted that during his student leave he had worked in excess of the hours permitted to him and that he did not manage to complete the courses that he had been given leave to study.
Further, on 30 July 2012, some eight months after MR had been notified that he was liable to be removed, he was convicted, at Manchester Crown Court, of the offence of fraud by abuse of position to which I have referred and was sentenced to 15 months' imprisonment. It was this conviction which led to a deportation order against him dated 11 September 2012. That deportation order was revoked due to a procedural error and a further order was made on 23 October 2012. MR then made a claim for asylum which was refused on 16 January 2013, and the Deportation Order was made on the same day.
MR appealed both decisions. The FTT dismissed his appeal in a determination promulgated on 4 March 2013 (the “First FTT Determination”). The FTT accepted that MR was having a relationship with a British woman and that Article 8 was engaged but was not satisfied that the relationship was other than tenuous. Permission to appeal that decision was refused by the UT. MR challenged the refusal of permission by way of judicial review and permission to apply for judicial review was refused on 28 June 2013. In the meantime, in May 2013, he applied to revoke the Deportation Order on the grounds that his situation had changed. He had married his British fiancée, AR, on 26 April 2013 and by November 2013 his wife was pregnant with their first child.
The Secretary of State refused MR's application for revocation of the Deportation Order on 15 January 2014. MR commenced judicial review proceedings in relation to that decision which were subsequently dismissed. On 30 May 2014 MR made a further application to revoke the Deportation Order which was refused by the Secretary of State in the letter dated 27 August 2014 to which I have referred. It is that decision with which this appeal is concerned.
To complete the picture, I should add that MR and AR's first child appears to have been born shortly before the Secretary of State's refusal to revoke the Deportation Order. A second child was born to the couple shortly before the hearing of the appeal by the FTT on 17 February 2016.
The Legal framework
As Lord Reed JSC pointed out at [3] – [9] of his judgment in Ali v Secretary of State for the Home Department [2016] 1 WLR 4799, (the “ Hesham Ali case”) with whom Lord Neuberger PSC, Lord Thomas CJ, Baroness Hale, Lord Kerr, Lord Wilson and Lord Hughes JJSC agreed, section 3(5) of the Immigration Act 1971 (as amended by section 169(1) of and paragraph 44(2) of Schedule 14 to the Immigration and Asylum Act 1999) provides that a person who is not a British citizen is liable to deportation from the United Kingdom, amongst other things, if the Secretary of State deems his deportation to be conducive to the public good. Section 5(1) provides that, where a person is liable to deportation under section 3(5), the Secretary of State may make a deportation order against him. Further, section 32 of the UK Borders Act 2007 (the “2007 Act”) requires the Secretary of State to make a deportation order if its provisions are satisfied and none of the exceptions in section 33 apply. There is no dispute that MR is a “foreign criminal” for the purposes of section 32. MR's removal was expressed to be pursuant to section 32(4) of the 2007 Act and to be conducive to the public good for the purposes of section 3(5)(a) of the Immigration Act 1971.
Applications for the revocation of deportation orders are determined by the Secretary of State and his officials in accordance with Part 13 of the Immigration Rules. Paragraphs 390 to 391A are as follows:
“390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:
(i) the grounds on which the order was made;
(ii) any representations made in support of revocation;
(iii) the interests of the community, including the maintenance of an effective immigration control;
(iv) the interests of the applicant, including any compassionate circumstances.
390A. Where paragraph 398 applies the Secretary of State 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 maintaining the deportation order will be outweighed by other factors
391. In the case of a person who has been deported following conviction for a criminal offence, the continuation of a deportation order against that person will be the proper course:
(a) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order when, if an application for revocation is received, consideration will be given on a case by case basis to whether the deportation order should be maintained, or
(b) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of at least 4 years, at any time,
Unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors.
391A. In other cases, revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.”
Rule 390A requires the reader, therefore, to consider the provisions of rules A398 – 399A which appear under the heading “Deportation and Article 8”. But for paragraph 399A they are directly relevant here and are as follows:
“A398. These rules apply where:
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;
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