Upper Tribunal (Immigration and asylum chamber), 2018-02-22, DA/00339/2014
| Jurisdiction | UK Non-devolved |
| Date | 22 February 2018 |
| Published date | 09 March 2018 |
| Hearing Date | 31 October 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00339/2014 |
Appeal Number: DA/00339/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00339/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision and Reasons promulgated |
|
On 31 October 2017 |
On 22 February 2018 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
SU
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr C Yeo instructed by Renaissance Solicitors
For the Respondent: Mr Bramble Senior Home Office Presenting Officer
DECISION AND REASONS
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The history of this matter shows that on 10 September 2014 First-tier Tribunal Judge Warren Grant dismissed the appeal under the Immigration Rules but allowed the appeal pursuant to article 8 ECHR against the respondent’s decision to refuse to revoke a deportation order made against the appellant on 17 February 1998, pursuant to section 5(1) Immigration Act 1971.
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The Secretary of State sought permission to appeal to the Upper Tribunal which was granted by a Designated Judge of the First-tier Tribunal on 1 October 2014. On 11 December 2014, Upper Tribunal Judge Moulden found that the First-tier Tribunal Judge did not err in law and dismissed the Secretary of States appeal.
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The Secretary of State sought permission to appeal to the Court of Appeal for which permission was refused by the Upper Tribunal on 18 March 2015. By an order dated 24 July 2015, sealed on 27 July 2015, the Right Honourable Lord Justice Richards, considering the renewed application for permission to appeal, granted permission finding that for the reasons set out in Counsel’s skeleton argument the application met the second appeal criteria.
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By an order sealed on 20 July 2017 the Court of Appeal, having heard counsel for both parties, allowed the Secretary of States appeal ordering that the respondent’s appeal against the Secretary of State’s refusal to revoke the deportation order made against him is remitted for reconsideration by a different constitution of the Upper Tribunal. That judgment is reported as Secretary of State the Home Department v SU [2017] EWCA Civ 1069.
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Following preliminary discussions at the commencement of the hearing both advocates agreed that the effect of the order of the Court of Appeal is that the earlier decisions of both the Upper and First-tier Tribunal have been set aside. When discussing whether in light of this it was appropriate for the matter to remain in the Upper Tribunal or be remitted to the First-tier Tribunal, both advocates agreed that they were happy for the matter to remain before the Upper Tribunal.
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In light of the fact no CMR had been listed before the Upper Tribunal, as is ordinarily the case with an appeal remitted by the Court of Appeal, Mr Bramble indicated he wanted time to consider the Court of Appeal decision on the papers as he thought the matter had been listed for an error of law hearing and was unaware of the true nature of the hearing in light of the developments before the Court of Appeal. Mr Yeo confirmed that he was relying upon the First-tier Tribunal bundle.
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The matter was accordingly put back to allow Mr Bramble further time after which he confirmed no evidential issues arose, it was accepted that oral evidence would not be necessary, and that the matter could proceed by way of submissions only. It is accepted by Mr Bramble that the factual findings of the First-tier Tribunal are not disputed.
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The procedure adopted was for Mr Yeo to make his initial submissions followed by Mr Bramble and then for Mr Yeo to reply.
Background
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The facts, taken from the judgment of the Court of Appeal, are as follows:
The facts
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
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The respondent's application for leave to remain as JU's spouse has yet to be determined, pending the outcome of these proceedings.
The law
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The Court of Appeal summarised the applicable law before them in the following terms:
The relevant legislation and rules
9. 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.
10. 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.
11. 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.
12. 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.
13. The relationship generally between immigration decisions and Convention rights, and particularly between decisions to deport foreign criminals and their...
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