Sharmarke Yussuf (Anonymity Direction not Made) v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Lane,Hanson |
| Judgment Date | 05 March 2018 |
| Neutral Citation | [2018] UKUT 117 (IAC) |
| Date | 05 March 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2018] UKUT 117 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE HON. Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE Hanson
For the Appellant: Mr B Bundock, Counsel, instructed by Messrs Lupins Solicitors
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer
Yussuf (meaning of “liable to deportation”)
Section 32 of the UK Borders Act 2007 impliedly amends section 3(5)(a) of the Immigration Act 1971 by (a) removing the function of the Secretary of State of deeming a person's deportation to be conducive to the public good, in the case of a foreign criminal within the meaning of the 2007 Act; and (b) substituting an automatic “deeming” provision in such a case. The judgments of the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 make this plain. To that extent Ali (section 6 – liable to deportation) Pakistan [2011] UKUT 00250 (IAC) is wrongly decided.
The appellant, born on 1 January 1982, is a citizen of Somalia. He entered the United Kingdom in January 2004 and claimed asylum. An adjudicator allowed the appellant's appeal against the respondent's decision to refuse his claim. As a result of the adjudicator's decision, the appellant was granted refugee status, and also leave to remain, on 13 October 2004.
The appellant committed a number of criminal offences in the United Kingdom, culminating in 2010, when he was convicted of attempted wounding and sentenced to two years' imprisonment.
The respondent considered whether to revoke the appellant's refugee status, in the light of this conviction, but ultimately decided not to do so. On 22 April 2014, however, the respondent informed the appellant that she was proposing to revoke his indefinite leave to remain in the United Kingdom, pursuant to section 76(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). This provides as follows:-
“ 76. Revocation of leave to enter or remain
(1) The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if the person —
(a) is liable to deportation, but
(b) cannot be deported for legal reasons.”
The appellant appealed against that decision to the First-tier Tribunal. His appeal was heard at Richmond on 23 December 2014 by a Judge of the First-tier Tribunal. The Judge heard evidence from the appellant and from Ms Ryan, who worked at St Mungo's Hostel, where the appellant had been living.
The Judge observed that the offence for which the appellant had been sentenced to two years' imprisonment was not the first of its kind. In 2007 the appellant had received a custodial sentence for another wounding offence. The appellant's offending history appeared to be linked to problems he had with alcohol. Ms Ryan, however, confirmed the appellant's evidence that his behaviour had significantly improved since he had been living at the hostel and that he had not subsequently offended.
None of this, however, had any material bearing, insofar as the Judge was concerned:-
“15. The scope of this appeal is, however, very limited. Section 76 of the 2002 Act provides that indefinite leave may be revoked where a person is liable to deportation but cannot, for legal reasons, be deported. The appellant is still a Somali national. He has a conviction for which he was sentenced to 2 years imprisonment, which is over the threshold for automatic deportation set by section 32 of the Borders Act 2007, but he retains refugee status. He is thus shown to be within the parameters set by section 76.
16. Section 76 is clearly a discretionary power, and the decision letter makes clear that the respondent appreciated that and considered her discretion, concluding that the seriousness of the offence justified the decision to revoke. There might be scope for an argument that, certainly by the time the decision was finally taken, the appellant had changed so that overall discretion could or should have been exercised in his favour, although given the nature of the offence and the statutory presumption in section 72(2) it may be doubted whether that argument would succeed. This Tribunal has, however, no power to review the exercise of that statutory discretion. The grounds on which the Tribunal can act are set out in section 84 of the 2002 Act, and are that the decision is not according to law (from various sources, including immigration rules, or otherwise) or that the decision maker should have exercised differently a discretion conferred by immigration rules. The expression “immigration rules” is defined in section 113 as meaning rules made under section 1(4) of the Immigration Act 1971, and clearly does not extend to other statutes.”
The appellant appealed against the First-tier Tribunal Judge's decision. His appeal was heard in the Upper Tribunal on 27 August 2015 by a Deputy Upper Tribunal Judge. The Deputy Judge considered the decision of the Upper Tribunal in Ukus (discretion: when reviewable) [2012] UKUT 00307 (IAC). With the aid of that case, the Deputy Judge analysed the position as follows:-
“28. In Ukus, the Tribunal held at paragraph [22]:
There are thus four possible situations where the Tribunal is considering an appeal arising from the exercise of a discretionary power:
(i) the decision maker has failed to make a lawful decision in the purported exercise of the discretionary power vested in him and a lawful decision is required;
(ii) the decision maker has lawfully exercised his discretion and the Tribunal has no jurisdiction to intervene;
(iii) the decision maker has lawfully exercised his discretion and the Tribunal upholds the exercise of his discretion;
(iv) the decision maker has lawfully exercised his discretion and the Tribunal reaches its decision exercising its discretion differently.
29. As I understood Mr Duffy, his submission is that the appeal falls into category (i), and thus it would in theory have been open to the First-tier Tribunal to find that the Secretary of State had failed to make a lawful decision because, for example, she had failed to follow her own published policy when purportedly exercising her discretionary power.
30. Ms Robinson's submission is that the judge could have allowed the appeal in accordance with Section 86(3)(b). Section 86(3)(b) provided:
The Tribunal must allow the appeal insofar as it thinks that –
(b) A discretion exercised in making a decision against which the appeal is brought … should have been exercised differently.
31. I consider that Ms Robinson is wrong in her submission that this is a category (iv) case. Section 84(1)(f) of the 2002 Act gave a right of appeal on the ground that the person taking the decision should have exercised differently a discretion conferred by Immigration Rules. It did not provide a right of appeal against a discretion conferred by statute. I consider that Section 86(3)(b) only applied where the appellant had a valid ground of appeal under Section 84(1)(f). It did not apply where the appeal was against the exercise of discretion conferred on the Secretary of State by statute, and where the sole ground of appeal was (and is) that the decision is not in accordance with the law.
32. So, turning to the decision of the First-tier Tribunal, I find that the judge did not err in law in treating himself as being unable to substitute his own discretion for that exercised by the Secretary of State. The judge was right not to treat the appeal as falling into category (iv).”
The Deputy Judge had, however, been presented with the following additional argument from the appellant. Relying on the decision of the Upper Tribunal in Ali (section 6 – liable to deportation) Pakistan [2011] UKUT 00250 (IAC), the appellant contended that, since the Secretary of State had not specifically deemed his deportation to be conducive to the public good, he was not “liable to deportation” within the meaning of section 76 of the 2002 Act. Accordingly, the Secretary of State had no power under section 76(1) to deprive the appellant of his indefinite leave to remain.
In order to appreciate this aspect of the appellant's case, it is necessary to examine the legislative scheme.
Section 3(5) and (6) of the Immigration Act 1971 provides as follows:-
“(5) A person who is not a British citizen is liable to deportation from the United Kingdom if –
(a) the Secretary of State deems his deportation to be conducive to the public good; or
(b) another person to whose family he belongs is or has been ordered to be deported.
(6) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.”
The UK Borders Act 2007 effected major changes in the deportation regime. Sections 32 and 33 provide as follows:-
“ 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.
(3) Condition 2 is that —
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and
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