The Secretary of State for the Home Department v Claudius Steven Charles (human rights appeal: scope)
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane,President |
| Judgment Date | 05 February 2018 |
| Neutral Citation | [2018] UKUT 89 (IAC) |
| Date | 05 February 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2018] UKUT 00089 (IAC)
THE HON. Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE McWilliam
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Charles (human rights appeal: scope)
(i) A human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”) can be determined only through the provisions of the ECHR; usually Article 8.
(ii) A person whose human rights claim turns on Article 8 will not be able to advance any criticism of the Secretary of State's decision making under the Immigration Acts, including the immigration rules, unless the circumstances engage Article 8(2).
(iii) Following the amendments to ss.82, 85 and 86 of NIAA 2002 by the Immigration Act 2014, it is no longer possible for the Tribunal to allow an appeal on the ground that a decision is not in accordance with the law. To this extent, Greenwood No. 2 (para 398 considered) [2015] UKUT 00629 (IAC)should no longer be followed.
For the Appellant: Mr T Wilding, Senior Home Office Presenting Officer
For the Respondent: Mr P Haywood, Counsel, (Direct Access)
The respondent (hereafter claimant) is a citizen of Grenada who was born on 29 April 1960. On 25 June 2013, he was sentenced to 42 months' imprisonment for possession of Class A drugs, with intent to supply. On 2 October 2013 the Secretary of State wrote to the claimant inviting him to make submissions as to why he should not be deported in the light of his criminal history and latest conviction.
On 26 November 2014, the Secretary of State signed a deportation order in respect of the claimant. She also issued a certificate, pursuant to section 94B of the Nationality, Immigration and Asylum Act 2002.
The claimant commenced judicial review proceedings, which led to the Secretary of State withdrawing the section 94B certificate, granting the claimant an in-country right of appeal, and treating his application for revocation of the deportation order as a human rights claim, which the Secretary of State had rejected.
The claimant's appeal was heard by First-tier Tribunal Judge P J M Hollingworth at Nottingham in October and December 2015. The claimant's position was that the Secretary of State could not deport the claimant from the United Kingdom pursuant to the Immigration Act 1971. He relied upon section 7 of the 1971 Act which, so far as relevant, provides as follows:-
7. Exemption from deportation for certain existing residents
(1) Notwithstanding anything in section 3( 5) or (6) above but subject to the provisions of this section, a Commonwealth citizen or citizen of the Republic of Ireland who was such a citizen at the coming into force of this Act and was then ordinarily resident in the United Kingdom —
(a) …
(b) shall not be liable to deportation under section 3(5) if at the time of the Secretary of State's decision he had for the last five years been ordinarily resident in the United Kingdom and Islands;]
(c) shall not on conviction of an offence be recommended for deportation under section 3(6) if at the time of the conviction he had for the last five years been ordinarily resident in the United Kingdom and Islands.
(2) A person who has at any time become ordinarily resident in the United Kingdom or in any of the Islands shall not be treated for the purposes of this section as having ceased to be so by reason only of his having remained there in breach of the immigration laws.
…
(5) Nothing in this section shall be taken to exclude the operation of section 3(8) above in relation to an exemption under this section.”
Section 3(5) of the 1971 Act provides that a person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Section 3(6) provides that a person who is not a British citizen shall also be liable to deportation if, after attaining the age of 17, he is convicted for an offence punishable with imprisonment and on conviction is recommended for deportation by a court empowered to do so.
Section 3(8) provides as follows:-
“(8) When any question arises under this Act whether or not a person is a British citizen, or is entitled to an exemption under this Act, it shall lie on the person asserting it to prove that he is.”
The 1971 Act came in to force on 1 January 1973. The claimant's case was that he had arrived in the United Kingdom in February 1972. It is common ground that the claimant cannot be deported if the claimant was in the United Kingdom before 1 January 1973. The Secretary of State does not contend that, if the claimant was in the United Kingdom before that date, he may not have been ordinarily resident. She also takes no point as to the application of section 7(1)(b) in the claimant's case. As a result, the sole issue regarding the application of section 7 is whether the claimant was in the United Kingdom before 1 January 1973.
Judge P J M Hollingworth heard a great deal of oral evidence from the claimant and his witnesses. The judge, however, eventually decided that the Secretary of State had failed to answer Subject Access Requests made on behalf of the claimant, with a view to securing access to his Home Office files. According to the judge, the Secretary of State had also “failed to gather all the relevant information in the first instance before making the deportation order”.
As a result, the judge decided to “allow the appeal on the basis that the [Secretary of State] has not acted in accordance with the law in the making of the deportation decision”.
In a decision dated 19 July 2016, Upper Tribunal Judge Pitt found a material error of law in Judge P J M Hollingworth's decision. She set that decision aside and remitted the case to be re-decided by the First-tier Tribunal.
As Upper Tribunal Judge Pitt found, Judge P J M Hollingworth, although seized with what she described as an Article 8 appeal, failed to address any of the five “ Razgarquestions” ( R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 at paragraph 17). These are:-
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“(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
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(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
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(3) If so, is such interference in accordance with the law?
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(4) If so, is such interference 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 freedom of others?
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(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”
At paragraph 16, Upper Tribunal Judge Pitt said as follows:-
“16. The appeal was allowed as the First-tier Tribunal purported to exercise a jurisdiction no longer open to it, finding that the respondent acted unlawfully in failing to obtain proper information on when the appellant came to the UK before making a deportation order and in failing to provide that information when formally requested to do so by the appellant and the Tribunal. There was no statutory jurisdiction for allowing an appeal on that basis and in doing so the First-tier Tribunal fell into legal error.”
The remitted appeal was heard by First-tier Tribunal Judge Malone on 22 November 2016. He allowed the claimant's appeal. Permission to appeal to the Upper Tribunal was granted by the First-tier Tribunal on 2 June 2017.
First-tier Tribunal Judge Malone heard evidence from the claimant and the claimant's two daughters, Stacey and Anne Marie. The judge also heard oral evidence from the mother of Stacey and Anne Marie, the claimant's elder brother and the claimant's sister.
At paragraph 14 of his decision, Judge Malone said that the claimant —
“resists deportation on two grounds: first, that his deportation would be unlawful by reason of s.7 of the 1971 Act; and, secondly, that his deportation would be unlawful as it would unlawfully infringe his qualified protected right to enjoy family and/or private life in the United Kingdom.”
The judge's analysis of the evidence and conclusions thereon are to be found at paragraphs 17 to 38 of the decision. Having heard the oral evidence of the claimant and his witnesses, he found them all to be “honest and reliable. My assessment of their oral evidence is particularly important in this case”.
At paragraph 18, the judge recorded the Secretary of State's concession that if the claimant came to the United Kingdom before 1 January 1973 and had been ordinarily resident since that time, whether lawfully or as an overstayer, then by reason of section 7 of the 1971 Act the claimant was “exempt from deportation”.
In his deportation questionnaire, the claimant said that he came to the United Kingdom in January or March 1970, when he would have been 9 years old. In his witness statement and oral evidence, however, he said that he came to the United Kingdom in 1972 when he was 12 years old.
At paragraphs 21 and 22, the judge dealt with written material emanating from, respectively, a GP Surgery and the Ilford Chest Clinic. The medical notes from the GP Surgery recorded that the claimant had first attended there on 14 October 1974. The judge observed that these notes “do not conflict with the [claimant's] claim that he came to the United Kingdom in 1972”.
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