The Secretary of State for the Home Department v VM (Jamaica)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lady Justice Arden |
| Judgment Date | 11 April 2017 |
| Neutral Citation | [2017] EWCA Civ 255 |
| Docket Number | Case No: C5/2015/1608 & C5/2016/4715 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 April 2017 |
[2017] EWCA Civ 255
Lady Justice Arden
and
Lord Justice Sales
Case No: C5/2015/1608 & C5/2016/4715
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
JR43742015 JR43792015
Royal Courts of Justice
Strand, London, WC2A 2LL
Alasdair Mackenzie (instructed by TRP Solicitors Limited) for the Respondent/Cross-Appellants
Rory Dunlop (instructed by Government Legal Department) for the Apellant/Cross-Respondent
Hearing date: 16 March 2017
Approved Judgment
There are two appeals before the court concerning the regime of immigration law. They raise issues of procedural law and substantive law.
VM is a citizen of Jamaica, born on 17 September 1982. He has been convicted of serious crimes in this country. He therefore qualifies as a foreign criminal for the purposes of the immigration regime. He has married a British woman, KB, with whom he has had two children, KSM and KDM, who are also British citizens. VM is also step-father to KB's son from a previous relationship, AB, who also is a British citizen.
The Secretary of State decided on 28 February 2014 that VM should be deported. VM appealed against that decision to the First-tier Tribunal ("FTT"), as he was entitled to do. He failed to attend the hearing of the appeal and by a decision promulgated on 19 June 2014 the appeal was dismissed ("the 2014 FTT decision"). In October 2014 VM was detained with a view to deportation. Permission was refused for him to bring a judicial review claim to challenge his removal and permission to appeal to this court was also refused. In November 2014 the Secretary of State refused to treat further representations from VM as amounting to a fresh claim under para. 353 of the Immigration Rules.
Further representations were made to the Secretary of State on behalf of VM on 6 April 2015, enclosing a report from Dr Newth, a Consultant Child Psychiatrist, concerning the detrimental impact which VM's removal would have on the children. By a letter dated 13 April 2015 the Secretary of State said that Dr Newth's report made no material difference to the case and only reiterated points already made and considered by the FTT and the Secretary of State previously. Earlier decisions to deport VM were "maintained". On a fair reading of this letter, it is clear that the Secretary of State again refused to treat the latest representations from VM as amounting to a fresh claim calling for a new decision by her, which could then give rise to a further right of appeal.
On 14 April 2015 VM commenced an appeal against the "no fresh claim" decision of 13 April 2015. One of the procedural issues in this case is whether he had a right of appeal in respect of that decision. The Secretary of State says he did not. The Secretary of State raised this point with the FTT on 17 April 2015, but the FTT duty judge ruled that the FTT did have jurisdiction to hear the appeal so VM's case proceeded to a substantive hearing before the FTT in July 2015.
Meanwhile, also on 14 April 2015, VM again made representations to the Secretary of State asking her not to deport him, re-submitting Dr Newth's report and adding a statement of support from KB. By a decision letter dated 16 April 2015, the Secretary of State stated that for the reasons set out in that letter, which referred to the 2014 FTT decision and previous decision letters from the Secretary of State, "it is concluded that your client's representations do not amount to a fresh claim", that no fresh immigration decision (carrying a right of appeal) would be made and that VM's request to have the deportation order withdrawn was refused.
The same day, 16 April 2015, VM issued judicial review proceedings in relation to the "no fresh claim" decision of 16 April 2015. On 17 April 2015 HHJ Oliver-Jones QC, sitting in the Upper Tribunal to exercise its judicial review jurisdiction, refused permission to apply for judicial review on the papers and certified the case as totally without merit. He also in due course refused permission to appeal to this court. On 20 May 2015 VM applied to this court for permission to appeal. That application was overtaken by events in the parallel appeal proceedings. In due course, on 12 October 2015, Underhill LJ granted VM permission to appeal.
Meanwhile, the FTT proceeded in July 2015 to a substantive hearing of VM's appeal against the "no fresh claim" decision of 13 April 2015. In a decision promulgated on 29 July 2015 ("the 2015 FTT decision"), the FTT applied the rules in relation to foreign criminals contained in paras. 399 and 399A of the Immigration Rules (which reflect the legislative regime in relation to foreign criminals now set out in sections 117A-117D of the Nationality, Immigration and Asylum Act 2002). The FTT found that it would not be "unduly harsh" for the children to live in Jamaica with VM: [14]–[20]. But, particularly in light of Dr Newth's report about the psychological and behavioural problems displayed by AB and KSM while VM had been in detention, the FTT found that it would be "unduly harsh" for the children to remain in the UK without VM, if he were deported: [21]. On these findings, deportation was not precluded by paras. 399–399A of the Immigration Rules, reviewed below, and the FTT went on to consider whether there were "very compelling circumstances" within the rubric of para. 398 of the Immigration Rules, to indicate that it would be disproportionate under Article 8 of the European Convention on Human Rights to deport VM. Having regard in particular to VM's offending history, the FTT held that it would not be disproportionate for VM to be deported: [22]–[38].
VM appealed to the Upper Tribunal ("UT"). On the appeal, the Secretary of State again objected that VM had no right of appeal in relation to the "no fresh claim" decision of 13 April 2015, and hence that there could also be no valid right of appeal in the UT. The UT, however, held in its decision promulgated on 15 September 2016 ("the UT appeal decision"), at para. [5], that there was a valid right of appeal before the UT, saying:
"If the decision taken by the Immigration Judges below were improper, the proper course of action was to raise a jurisdictional matter by way of a judicial review action by the Secretary of State, and in the timeliest manner, rather than being raised before this Upper Tribunal, which is not exercising a judicial review function for present purposes. Accordingly, this Tribunal must hear the appeal on the part of [VM]."
The UT held that the 2015 FTT decision was affected by errors of law, in particular because the FTT had not taken into account the rights of the children under EU law, as British and EU citizens, which in the view of the UT meant that they could not be expected to leave the UK and go to Jamaica with VM. The UT explained its view regarding the errors on the part of the FTT in the 2015 FTT decision as follows, at [16]–[17]:
"16. First, a series of cases after Sanade [ Sanade v Secretary of State for the Home Department [2012] UKUT 48 (IAC)] has confirmed that a carer cannot be removed back to his country where there are British citizen children who are going to suffer to such an extent that the British citizen child or children would also have to leave. This would not be logically possible. It is not logically possible here because the judge accepted that 'it would be unduly harsh, having regard to the independent psychiatric report and social worker evidence and in particular the children's mental health and behavioural issues which would worsen if separated from the Appellant' (paragraph 21). The children could not stay in the UK if the Appellant was deported. Their condition would worsen. This was accepted by the judge. They would have to accompany the Appellant back to Jamaica. That would infringe the rights of British citizen children and violate the fundamental precepts of EU law.
17. Second, in this particular case, a concession was made by the Respondent Secretary of State that it would not be reasonable to expect any of the children here to leave the United Kingdom. It was also conceded that there is in existence genuine and subsisting relationships with each child that the Appellant himself enjoyed. Judge Pooler had [in the 2014 FTT decision] concluded that it would not be in the best interests of the children were they not to be in the care of both parents in the United Kingdom (see paragraph 30)."
The UT proceeded to remake the decision on VM's appeal against the Secretary of State's decision, and allowed the appeal for the reasons set out at [16]–[17].
The Secretary of State wished to appeal. For an appeal from the UT in a case like this an application has first to be made to the UT for permission to appeal, and only if an application is made and refused may an application then be made to this Court for permission to appeal. The Secretary of State's application for permission to appeal was lodged one day out of time.
Rule 44(6) of the Tribunal Procedure (Upper Tribunal) Rules 2008 ("the Tribunal Rules") provides:
"If the person seeking permission to appeal provides the application to the Upper Tribunal later than the time required [by the relevant rules] or by an extension of time under rule 5(3)(a) (power to extend time) –
(a) The application must include a request for an extension of time and the reason why the application notice was not provided in time; and
(b) Unless the Upper Tribunal extends time for the application under rule 5(3)(a) (power to extend time) the Upper Tribunal must refuse the application."
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