The Secretary of State for the Home Department v SU
| Jurisdiction | England & Wales |
| Judge | Lord Justice David Richards,Mrs Justice Asplin,THE CHANCELLOR |
| Judgment Date | 20 July 2017 |
| Neutral Citation | [2017] EWCA Civ 1069 |
| Docket Number | Case No: C5/2015/1535 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 July 2017 |
[2017] EWCA Civ 1069
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Moulden
DA/00339/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
THE CHANCELLOR OF THE HIGH COURT
Lord Justice David Richards
and
Mrs Justice Asplin
Case No: C5/2015/1535
Neil Sheldon (instructed by The Government Legal Department) for the Appellant
Colin Yeo (instructed by Renaissance Solicitors) for the Respondent
Hearing dates: 27 June 2017
Judgment Approved
Introduction
This is a second appeal by the Secretary of State. In February 2014, the Secretary of State refused to revoke a deportation order made against the respondent on 17 February 1998, following his conviction for conspiracy to defraud for which he was sentenced to 42 months' imprisonment. The respondent's appeal against the refusal was allowed by the First-tier Tribunal (FTT) on 10 September 2014 and the Upper Tribunal dismissed the Secretary of State's appeal on 8 December 2014. The Secretary of State appeals to this court with permission granted by Lord Justice (Stephen) Richards.
We were told that this is the first occasion on which this court has been concerned with the correct approach to the revocation of a deportation order where it has been implemented but the deportee has, in breach of the deportation order, returned to the UK and has established a private and family life during the following period of unlawful presence here.
The facts
The respondent is a citizen of Pakistan who was born in May 1959. He entered the UK illegally in March 1994 but shortly afterwards lodged a claim for asylum. That application was refused in November 1997 and his appeal against the refusal was dismissed in June 1998. In October 1995, he married MPP, an Indian national with a right of residence in the UK whom he had met while living in the UK. He was granted leave to remain as a spouse until March 1997. In September 1996, he was convicted on two counts of conspiracy to defraud, sentenced to 42 months' imprisonment and recommended by the trial judge for deportation. In February 1998, a deportation order was made against him. He appealed against the order but by August 1998 his appeal rights had been exhausted and, in October 1998, he was deported to Pakistan.
In 2000, the respondent illegally re-entered the UK. His marriage to MPP was dissolved in January 2002 and he subsequently married JU, who had come to the UK from Pakistan and become a British citizen by virtue of a previous marriage. In June 2003, he applied for leave to remain as JU's spouse. In November 2005, he applied for indefinite leave to remain as part of the "family exercise 2003" but his application was dismissed in September 2006 on the grounds that he did not meet the relevant criteria.
No progress was made with the original application for leave to remain as JU's spouse until December 2013, when the Secretary of State wrote to the respondent requesting information, to which the respondent promptly replied.
The Secretary of State determined that it was first necessary to decide whether to revoke the extant deportation order made in 1998. In February 2014, she determined not to revoke it, setting out her reasons in a letter dated 5 February 2014.
As earlier mentioned, the respondent successfully appealed to the FTT against the refusal to revoke the deportation order and the Secretary of State unsuccessfully appealed that decision to the Upper Tribunal.
The respondent's application for leave to remain as JU's spouse has yet to be determined, pending the outcome of these proceedings.
The relevant legislation and rules
The statutory framework for deportation orders and the system of appeals against them (and against a refusal to revoke a deportation order) relevant to this appeal are or were set out in a number of statutory provisions. There have since been some further changes but I shall refer only to the applicable provisions.
Section 3(5) of the Immigration Act 1971 (as amended) (the 1971 Act) provides that a person who is not a British citizen is liable to deportation if the Secretary of State deems it to be conducive to the public good, and section 3(6) (as amended) provides that a person who is not a British citizen is also liable to deportation if, after he has attained the age of 17, he is convicted of an offence punishable by imprisonment and on his conviction he is recommended for deportation by a court empowered by the Act to do so. Section 5(1) provides that, where a person is liable to deportation under section 3( 5) or (6), the Secretary of State may make a deportation order against him.
Section 32(4) of the UK Borders Act 2007 (the 2007 Act) provides that, for the purposes of section 3(5) of the 1971 Act, "the deportation of a foreign criminal is conducive to the public good". A "foreign criminal" is a person who is not a British citizen, is convicted in the UK of an offence and is sentenced to a period of imprisonment of at least 12 months. Further, section 32(5) provides that the Secretary of State must make a deportation order in respect of a foreign criminal, subject to section 33. So far as relevant to the present appeal, the obligation to make a deportation order under section 32(5) is displaced by section 33 where deportation would breach "a person's Convention rights", i.e. their rights under the Convention on Human Rights and Fundamental Freedoms.
The grounds on which an appeal can be made against a deportation order (or a refusal to revoke an order) are set out in section 84(1) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) and include that the decision is not in accordance with immigration rules, that the decision, or removal pursuant to a decision, is or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights, or the decision is otherwise not in accordance with the law.
The relationship generally between immigration decisions and Convention rights, and particularly between decisions to deport foreign criminals and their Convention rights, is the subject of provisions contained in Part 5A of the 2002 Act, which was introduced by the Immigration Act 2014 with effect from 28 July 2014.
Section 117A provides:
"(1) This Part applies where a court or 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 cases 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)."
The decision of the FTT in the present case was made on 10 September 2014 and accordingly, by virtue of section 117A, it was required to apply Part 5A in determining whether the refusal to revoke the deportation order against the respondent breached the respondent's rights under Article 8 of the Convention: see YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292; [2015] INLR 405, at [38].
Section 117B(1) provides that "[t]he maintenance of effective immigration controls is in the public interest". Section 117B(4) provides:
"(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully."
Section 117C(1) provides that "[t]he deportation of foreign criminals is in the public interest". Section 117C(3) provides that in the case of a foreign criminal (C) who has not been sentenced to a period of imprisonment of more than four years, "the public interest requires C's deportation unless Exception 1 or Exception 2 applies". It is common ground that neither Exception applied in the present case.
The Immigration Rules applicable to the decision of the FTT were those in force at the time of its decision: YM (Uganda) v Secretary of State for the Home Department at [39].
The relevant provisions of the Immigration Rules are paragraphs 390 – 400, as in force immediately following their amendment with effect from 28 July 2014.
Paragraphs 390 – 392, under the heading "Revocation of deportation orders", provided:
"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...
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