The Secretary of State for the Home Department v AJ (Angola)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Sales,The Hon. Mr Justice Newey,Lord Justice Sullivan
Judgment Date17 December 2014
Neutral Citation[2014] EWCA Civ 1636
Docket NumberCase No: C5/2013/3288
Date17 December 2014

[2014] EWCA Civ 1636

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Sullivan

Lord Justice Sales

and

Mr Justice Newey

Case No: C5/2013/3288

Case No. C5/2014/0086

Between:
The Secretary of State for the Home Department
Appellant
and
AJ (Angola)
Respondent
Between:
The Secretary of State for the Home Department
Appellant
and
AJ (Gambia)
Respondent

Mr Neil Sheldon (instructed by The Treasury Solicitor) for the Appellant

Ms Shazia Khan (instructed by Ison Harrison Solicitors) for the Respondent

Mr Neil Sheldon (instructed by The Treasury Solicitor) for the Appellant

Mr David Medhurst (instructed by The Legal Resource Partnership) for the Respondent

Hearing dates: 2 and 4 December 2014

Lord Justice Sales

Introduction

1

This is the judgment in respect of two appeals, AJ (Angola) and AJ (Gambia), both of which raise issues regarding the proper approach for the Tribunal to adopt in dealing with deportation of foreigners who have committed crimes while in the United Kingdom. The individuals concerned are foreign criminals, as defined by section 32 of the UK Borders Act 2007.

2

In each of the cases before the court, the Secretary of State made a deportation order in respect of the individual concerned, who appealed (hence I refer to the individuals as "the appellants"). In due course, the Upper Tribunal (Immigration and Asylum Chamber) allowed the appeals. The Secretary of State appeals against those decisions to this Court.

3

Amendments to the Immigration Rules were introduced in July 2012 in an effort to emphasise the strength of the public interest regarding the desirability of deporting foreign criminals from the United Kingdom and to secure a degree of consistency in approach on the part of the Secretary of State's officials, the First-tier Tribunal ("FTT") and the Upper Tribunal. The new rules were contained in paragraphs 398, 399, 399A and 399B of the Immigration Rules ("the new rules").

4

The proper approach for the Secretary of State, the FTT and the Upper Tribunal to adopt in relation to considering orders to deport foreign criminals in the light of the new rules was the subject of a judgment by this Court in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544. In a judgment handed down on 8 October 2013, the Court held that the new rules comprised a complete code regulating how the question of possible expulsion of a foreign criminal should be addressed. Where the new rules did not expressly provide for leave to remain in the United Kingdom to be granted to a foreign criminal falling within certain defined categories of case, they nonetheless stated that such leave could be granted "in exceptional circumstances" (paragraph 398). The Court held that this rubric covered any claim by the foreign criminal to remain in the United Kingdom on the grounds that his Convention rights under the Human Rights Act 1998 prevented his removal. The Upper Tribunal in that case, in its decision at [2012] UKUT 393 (IAC), had erred by treating a foreign criminal's claim to remain in the United Kingdom based on Convention rights (specifically, the right to respect for family and private life under Article 8) as a matter to be considered separately from application of the new rules.

5

In each of the present appeals, the Upper Tribunal wrote its decision before the judgment of the Court of Appeal in MF (Nigeria) was handed down. In AJ (Angola) the decision was promulgated by the Upper Tribunal (Upper Tribunal Judge Lane, sitting alone) on 24 June 2013. In AJ (Gambia), the decision was finalised by the Upper Tribunal (Lord Bannatyne and Upper Tribunal Judge Kopieczek) on 26 September 2013, although it was eventually issued via the Tribunal secretariat on 16 October 2013. In neither case, therefore, did the Upper Tribunal have the benefit of the important guidance given by the Court of Appeal in MF (Nigeria). Instead, in each the Upper Tribunal considered application of Article 8 outside the framework of the new rules.

6

In each of the cases before us, the Upper Tribunal cannot be blamed for failing to appreciate what the correct approach to application of the new rules was, as later set out by the Court of Appeal in MF (Nigeria). In particular, it is difficult to criticise the Upper Tribunal in AJ (Gambia) for following the approach set out in the Upper Tribunal decision in MF (Nigeria), which at the time of its decision was the most up-to-date and authoritative guidance regarding the interpretation of the new rules. However, in light of the Court of Appeal's judgment in MF (Nigeria), I consider that it is clear that the approach that was adopted by the Upper Tribunal in both the present cases was wrong in law.

7

The question which then arises in each case is what the consequence of the Upper Tribunal's erroneous approach with respect to the new rules should be. In AJ (Gambia), if this Court concludes that the Upper Tribunal erred in its approach, the parties are agreed that the appeal should be allowed and the case remitted to the Upper Tribunal to take a fresh decision. There has been some passage of time, and the appellant's rights under Article 8 have to be considered with reference to evidence about the current position in respect of those rights. Moreover, the new rules have themselves been replaced by a new version of the paragraphs of the Immigration Rules governing foreign criminals, which came into effect on 28 July 2014 (see YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 for a description of the changes which have been made), and relevant new statutory provisions have been enacted, as Part 5A of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). It is common ground that any decision regarding deportation of the appellant should be made under this new version of the relevant paragraphs of the Immigration Rules and with reference to Part 5A of the 2002 Act.

8

In AJ (Angola), on the other hand, Ms Khan, counsel for the appellant, submits that any error of approach by the Upper Tribunal was not material and that the Secretary of State's appeal should be dismissed. Mr Sheldon, who appeared for the Secretary of State in both appeals, submits that the appeal should be allowed and that the case should be remitted to the Upper Tribunal for a fresh decision to be made.

The new rules

9

Paragraphs 398 to 399B of the Immigration Rules provide as follows:

"Deportation and article 8

"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 four 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 four 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 seven 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; or (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.

399B. Where paragraph 399 or 399A applies limited leave may be granted for periods not exceeding 30 months. Such leave shall be given subject to such conditions as the Secretary of State deems appropriate. Where...

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