The Secretary of State for the Home Department v JZ (Zambia)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lady Justice King,Lord Justice Simon |
| Judgment Date | 01 March 2016 |
| Neutral Citation | [2016] EWCA Civ 116 |
| Docket Number | Case No: C5/2014/3293 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 March 2016 |
[2016] EWCA Civ 116
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLYUM CHAMBER)
UPPER TRIBUNAL JUDGE RINTOUL
DA/01165/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lady Justice King
and
Lord Justice Simon
Case No: C5/2014/3293
Mr Marcus Pilgerstorfer (instructed by the Government Legal Department) for the Appellant
Ms Victoria Hutton (instructed by Cotisens Solicitors) for the Respondent
Hearing date: 2 February 2016
This judgment is in eight parts, namely:
| Part 1. Introduction | Paragraphs 2 to 8 |
| Part 2. The facts | Paragraphs 9 to 23 |
| Part 3. The appeal to the Court of Appeal | Paragraphs 24 to 27 |
| Part 4. Did the First-tier Tribunal misapply rule 398 by treating matters described in rules 399 and 399A as constituting exceptional circumstances? | Paragraphs 28 to 34 |
| Part 5. Did the First-tier Tribunal carry out a freestanding article 8 analysis, rather than addressing the article 8 issue through the lens of the Immigration Rules? | Paragraphs 35 to 43 |
| Part 6. Did the First-tier Tribunal err in finding "exceptional circumstances"? | Paragraphs 44 to 49 |
| Part 7. The remaining grounds of challenge | Paragraphs 50 to 57 |
| Part 8. Executive summary and conclusion | Paragraphs 58 to 61 |
This is an appeal by the Secretary of State against a decision made by the First-tier Tribunal and upheld by the Upper Tribunal that JZ, despite his conviction for serious offences, cannot be deported to Zambia. The issue in this appeal is whether the First-tier Tribunal and the Upper Tribunal correctly applied rules 398 to 399A of the Immigration Rules.
JZ was the defendant in criminal proceedings, the applicant for relief from deportation, the appellant before the First-tier Tribunal and the respondent before the Upper Tribunal. When referring to his role in the litigation I shall call him "the claimant".
The Secretary of State for the Home Department was respondent before the First-tier Tribunal and appellant before the Upper Tribunal. She is the appellant before this Court. I shall refer to her as "the Secretary of State". I shall refer to the UK Border Agency as "UKBA".
Again in this judgment references to "article 8" are references to article 8 of the European Convention on Human Rights. Article 8 provides:
"ARTICLE 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
I shall refer to the UK Borders Act 2007 as "the 2007 Act". Sections 32 and 33 of the 2007 Act provide:
"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
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—
(a) he thinks that an exception under section 33 applies,
(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or
(c) section 34(4) applies.
(7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.
33 Exceptions
(1) Section 32(4) and (5)—
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention.
(3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.
…."
The Immigration Rules as they were at the time of the First-tier Tribunal's decision provided as follows:
"398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good 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; or
(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,
the Secretary of State in assessing that claim 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 deportation will be outweighed by other factors.
399. This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would not be reasonable to expect the child to leave the UK; and
(b) there is no other family member who is able to care for the child in the UK; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and
(i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and
(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK.
399A. This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.
(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK."
After these introductory remarks, I must now turn to the facts.
The claimant is a Zambian national who was born on 7 April 1994. The claimant was born and raised in Zimbabwe. His mother is a Zambian national of Congolese descent. The claimant's father was a German national of Lebanese descent. He has not been involved in the claimant's life.
In 2003 the claimant at the age of 9 came to the UK with his mother and stepfather. He has lived with them and his half siblings since then, except when he was imprisoned. In 2010 all family members obtained indefinite leave to remain. In 2013 the claimant's mother, stepfather and half-siblings became British citizens.
In August 2011 there was major rioting in London. The claimant took an active part in those riots. At one stage he hurled a burning plank of wood at the police. Fortunately a CCTV camera recorded this shocking behaviour with reasonable clarity.
The claimant's mother saw a film of the rioting on television. She recognised her son amongst the rioters. Acting with commendable civic duty, she reported her own son to the police. This must have been an agonising decision for her, but she did the right thing.
On 28 May 2012 at Wood Green Crown Court the claimant pleaded guilty to one count of violent disorder and two counts of arson. On 13 July 2012 he was sentenced to a total of 4 1/2 years' detention.
The Secretary of State decided to deport the claimant in accordance with the provisions of the 2007 Act. She noted that the claimant was a "foreign criminal" within section 32 of that Act. She concluded that none of the exceptions in section 33 applied. On 4 September 2012 the...
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