The Queen (on the Application of Peters Bimbola Abidoye) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLady Justice Andrews,Lord Justice Newey,Lady Justice King
Judgment Date30 October 2020
Neutral Citation[2020] EWCA Civ 1425
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C4/2018/2539
Date30 October 2020

[2020] EWCA Civ 1425

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HONOURABLE MR JUSTICE CHOUDHURY

[2018] EWHC 2166 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice King DBE

Lord Justice Newey

and

Lady Justice Andrews DBE

Case No: C4/2018/2539

Between:
The Queen (On the Application of Peters Bimbola Abidoye)
Appellant
and
The Secretary of State for the Home Department
Respondent

Ms Samantha Broadfoot QC and Ms Deborah Revill (instructed by DJ Webb & Co) for the Appellant

Mr David Manknell (instructed by Government Legal Department) for the Respondent

Hearing date: 7 October 2020

Approved Judgment

Lady Justice Andrews

INTRODUCTION

1

This is an appeal against the decision of Choudhury J [2018] EWHC 2166 (Admin) dismissing the appellant's claim for judicial review. The claim challenged three decisions made by the respondent (“the Secretary of State”), namely:

i) a decision of 17 August 2017 to issue a deportation order against the appellant on the basis that, having been convicted of a serious criminal offence and sentenced to five years' imprisonment, his presence within the jurisdiction was not conducive to the public good;

ii) a decision of 21 October 2017 to detain him under immigration powers with a view to his removal from the jurisdiction; and

iii) a decision of 14 November 2017 refusing to recognise his further submissions as a fresh claim under paragraph 353 of the Immigration Rules.

The focus of the challenge was understandably upon the first of these decisions.

2

The issue at the heart of this appeal is whether it was open to the Secretary of State to make a fresh deportation order against the appellant in circumstances where he had successfully appealed to the Upper Tribunal (IAC) against an earlier deportation order based upon the same criminal conviction. The appellant contends that the decision of the Upper Tribunal, promulgated on 20 July 2012, that his removal would be a disproportionate interference with his rights under Article 8 of the European Convention on Human Rights, gave rise to an issue estoppel regarding the lawfulness of his removal. It could not be departed from in the absence of a material change of circumstances, and there has been no such change.

3

Although he accepts that a change in the law is in principle capable of amounting to a material change of circumstances, the appellant contends that the changes in approach to the weighing of the public interest in the removal of foreign criminals against the right to respect for private and family life under Article 8, brought about by the introduction into the Nationality, Immigration and Asylum Act 2002 of Part 5A by section 19 of the Immigration Act 2014, do not justify the Secretary of State making a fresh decision to deport him on essentially the same facts.

4

The appellant faces the major obstacle that in MA (Pakistan) v Secretary of State for the Home Department [2019] EWCA Civ 1252, (“ MA (Pakistan)”) on facts which are accepted to be indistinguishable in all material respects, a different constitution of this Court held that the changes in the law brought about by the 2014 Act did justify the Secretary of State in reviewing the appellant's position and making a fresh order for deportation based on the application of the provisions of Part 5A of the 2002 Act. That decision is binding upon us unless it was decided per incuriam. For reasons that will appear, I am not persuaded that it was, and accordingly the appeal must be dismissed.

5

However, in deference to the arguments that were developed before us by Ms Broadfoot QC, who appeared with Ms Revill on behalf of the appellant, and because the case has a feature that was not present in MA(Pakistan) but which is potentially of wider practical importance in the field of immigration, I shall also briefly address those arguments on their merits and explain why, even if the matter had been free from authority, I would have reached the same conclusions as the judge in the Court below.

BACKGROUND

6

For present purposes, the following simplified summary will suffice. The appellant, who was born in 1960, is a Nigerian national who first entered the UK on 9 June 1996. He became an overstayer in March 2000. In May 2004 he married a British citizen of Nigerian background. They remain married, and have three children, who are all British citizens. The eldest child was born in April 2005.

7

On 23 May 2005, the appellant was convicted of conspiracy to defraud. Over a period of two years he had been responsible for providing false documentation to 27 EEA nationals to substantiate their false claims to have been working in the UK, as part of a wider conspiracy to deceive the Home Office into granting them residence documents. The scale of the operation made it a very serious matter. The offence was committed for financial gain. Although the appellant was not the principal organiser, he played an important role in the conspiracy, which the trial judge described as sophisticated, with a high degree of planning. He acknowledged the appellant's previous good character and that he was a family man, but nevertheless passed what he described as a “deterrent sentence” of five years' imprisonment.

8

The appellant used his time in prison well, obtaining various academic qualifications, and becoming a teaching assistant. Upon his release, the probation service described him as a “model prisoner” and assessed him as being at low risk of harm and reconviction. That assessment proved to be accurate. In the many years since his release on licence, he has not reoffended. His two younger children were born in 2008 and 2010 respectively. In order to enable his wife, who is self-employed, to work full-time, he has taken on many of the caring responsibilities for the children.

9

For reasons relating to the date of the appellant's release from custody on licence, this was not a case to which the automatic deportation provisions of the UK Borders Act 2007 applied. The Secretary of State was not legally obliged to make a deportation order against the appellant, but had a discretion to do so under sections 3(5) and 5 of the Immigration Act 1971 if his deportation was deemed to be conducive to the public good. However, nothing turns on this. That discretion was exercised. For reasons that are immaterial to this appeal the initial decision to deport him, taken in February 2007, was successfully appealed. The relevant deportation decision that was challenged in the proceedings culminating in the decision of Upper Tribunal Judge Peter Lane (as he then was) which is said to give rise to an issue estoppel, (hereafter “the 2012 decision”) was made on 8 October 2009.

10

A person who is liable to be deported cannot be removed from the jurisdiction if the removal would breach that person's rights under the Convention. However, the existence of such a legal obstacle to removal does not alter the fact that he is a person whose presence is not conducive to the public good. In such circumstances, any deportation order remains valid unless and until it is revoked, and the revocation of the order will not necessarily preclude the Secretary of State from issuing a fresh one. As Lord Hughes pointed out in R (George) v Secretary of State for the Home Department [2014] UKSC 28, [2014] 1 WLR 1831, at [31]:

“… the legal obstacle is not necessarily, or even usually permanent. If it arises from conditions in the individual's home country, those conditions may change or he may come into favour with the authorities when previously he was not. If it arises from his family connections in the United Kingdom, those may easily change. If someone in his position cannot at present be deported because to do so would infringe his article 8 rights, and if indefinite leave to remain were thereupon to revive, he would remain irremovable if he turned his back on his family or they on him, as may not infrequently occur.”

11

That case, which concerned an individual who was subject to the pre-2007 Act deportation regime, but who (unlike the appellant) had indefinite leave to remain before he committed the relevant criminal offence, makes it plain that the inability to effect removal because of a legal obstacle of this type does not confer upon the individual any immigration status, let alone a vested right to remain in the UK. His position remains precarious, because in future the legal obstacle to his removal may cease to exist. Whilst in many cases the legal obstacle will depend on the underlying facts, there is no reason in principle why it should not be removed by a change in legislation, policy, or both.

12

At the time of the hearing before Judge Lane, the provisions of the 2012 Immigration Rules which, for the first time, introduced guidance on how the balancing exercise under Article 8 should be undertaken, (and specific guidance in relation to how it should be approached in cases concerning the proposed deportation of a foreign criminal), had not yet come into effect. Unlike the further amendments that were made to the Rules in 2014, those provisions did not apply irrespective of when the notice of intention to deport or the deportation order was served.

13

Judge Lane considered the merits of the appeal, as he was obliged to, on the basis of the law and the Immigration Rules that were then in force. He acknowledged that the public interest in deporting someone who had committed an offence of this nature was very strong. However, having had regard to the appellant's good behaviour in prison, his lack of reoffending and strong...

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