Upper Tribunal (Immigration and asylum chamber), 2014-12-23, DA/00024/2014
| Jurisdiction | UK Non-devolved |
| Date | 23 December 2014 |
| Published date | 08 April 2015 |
| Hearing Date | 16 October 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00024/2014 |
Appeal Number: DA/00024/2014
IAC-FH-CK-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00024/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 16 October 2014 |
On 23 December 2014 |
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Before
The Honourable Mr Justice King
UPPER TRIBUNAL JUDGE K CRAIG
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
AG
Respondent
Representation:
For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Ms N Barnes, 9-12 Bell Yard
DETERMINATION AND REASONS
1. This is an automatic deportation case involving a foreign criminal. It concerns a deportation order directed to the respondent AG, the appellant in the proceedings before the First-tier Tribunal. The order dated 29 November 2013, served on 3rd December 2013, was made by the Secretary of State under section 5 of the Immigration Act 1971 (the 1971 Act) not as an act of discretion but because of the mandatory provisions of section 32(5) of the UK Borders Act 2007 (the 2007 Act). For convenience we shall refer to AG either as AG or as the appellant.
2. The Order was in these terms:
‘Whereas [AG] is a foreign criminal as defined by section 32(1) of the Borders Act 2007:
The removal of [AG] is, under section 32(4) of that Act, conducive to the public good for the purposes of section 3(5)(a) of the Immigration Act 1971:
The Secretary of State must make an order in respect of a foreign criminal under section 32(5) of the UK Borders Act 2007 (subject to section 33).
Therefore in pursuance of section 5(1) of the Immigration Act 1971, once any Right of Appeal, that may be exercised from within the United Kingdom under section 82(1) of the Nationality, Immigration and Asylum Act 2002 is exhausted, and the said appeal is dismissed … the Secretary of State by this order requires the said [AG] to leave and prohibits him from entering the United Kingdom so long as this order is in force.’
3. There is no right of appeal against the making of the deportation as such but there is a right of appeal against the Secretary of State’s decision that section 32(5) applies which AG duly exercised on the grounds that his removal in pursuance of the deportation order would be a breach of his rights under Article 8 of the ECHR and hence came within the exceptions to section 32(5) provided for in section 33 of the 2007 Act. The Secretary of State’s written decision dated 3rd December 2013, that section 32(5) applied was served upon AG together with the deportation order.
4. This appeal has come before us as an appeal by the Secretary of State from the determination of the First-tier Tribunal (FtT) allowing AG’s appeal. Such an appeal lies to us only on an error of law. It raises, amongst other grounds, an important issue as to the application of paragraph 398(a) of the Immigration Rules where the conviction which rendered the proposed deportee a foreign criminal for the purposes of the 2007 Act, was for less than four years but where the individual concerned has in the past been convicted and received a sentence of at least four years albeit, because of its antiquity, not a conviction and sentence which brought him within the Act.
Background Facts
5. AG is a citizen of Jamaica born on the 30th July 1966. He is now 48 years of age. He first entered the United Kingdom on 18th June 1978 when he was 11 to join his mother. On 23rd April 2003 he was granted indefinite leave to remain in the United Kingdom.
Personal relationships
6. On the 20th November 2004 AG married MG in the United Kingdom. They remain married,
7. During his time in the United Kingdom AG has, in addition to MG, had relationships with two other women, namely MC and SM. He has had children by all three. With MC he has had 3 children, namely two sons and a daughter born between 1986 and 1996. With his now wife, MG he has had two children one born in 1996, the other in 2005, now aged 8. With SM he has had one child, a son born in 2004, now aged 9. In addition he regards MC’s older daughter born in 1983, and MG’s older daughter born in 1992 as stepdaughters.
Convictions
8. Between July 1981 and March 2010 AG appeared before the courts in the United Kingdom on thirteen separate occasions for seventeen offences.
9. In July 1981 he was made the subject of a supervision order by the Juvenile Court for theft; in October 1982 before the same court he was given a like order for indecent assault. On 17th October 1985 he was convicted in the Crown Court at Snaresbrook, of rape and sentenced to four years youth custody. In April 1988 he was fined in the Magistrates Court for shoplifting. In August 1989 he was convicted at the Crown Court of assault occasioning actual bodily harm and given a six months suspended sentence order; in March 1991 he was bound over at the Crown Court for wounding. In May 19991 he was fined by the Magistrates Court for possession of a controlled drug and failing to surrender to bail. In January 1992 he was convicted in the Crown Court of criminal damage and ordered to pay compensation. In August 1994 he received an eighteen month probation order from the Magistrates Court for an offence of common assault.
10. In March 1997 AG was sentenced at the Crown Court to a total of two years imprisonment for two drug offences being one of possession with intent to supply and one of possession. On his release he did not re-appear before a court for several years.
11. He next appeared in May 2009 before the magistrates who fined him for possession of a controlled drug, Class B. In February 2010 he appeared again before the magistrates for motoring offences involving driving uninsured and without a licence. He was fined.
12. Finally, on 4th March 2010, at the Crown Court at Warwick he was sentenced to twenty one months imprisonment for one offence of being knowingly concerned in the importation of a controlled drug of Class B, cannabis. He had pleaded guilty to this offence. In passing sentence the Judge observed that for a payment of £1800, AG had agreed to bring into the country a quantity of cannabis weighing 16.9 kg which he said he believed to be half that amount. The Judge took into account the plea of guilty, the explanation that the offence had been committed to raise money to pay off debts, and AG’s comparatively better recent record. The Judge observed that AG had been working quite hard of late, had recently passed a forklift driver test and there was work available.
13. AG was released on licence under the supervision of the probation service in January 2011 which continued until his sentence expiry on 3rd December 2011.
The statutory scheme for the automatic deportation of foreign criminals
14. A deportation order under section 5 of the 1971 Act can be made only if the person is ‘liable to deportation’ under section 3(5) or (6) of the 1971 Act (see the opening words of section 5(1)). For present purposes the material ‘liability provision’ is that set out in section 3(5)(a) of the 1971 Act providing that a person who is not a British citizen is liable to deportation from the United Kingdom if ‘(a) the Secretary of State deems his deportation to be conducive to the public good’. It follows for present purposes that a determination that ‘the deportation of the person is conducive to the public good’ is a necessary prerequisite before a deportation order can be made. The use of the word ‘deems’ in section 3(5)(a) indicates an assessment by the Secretary of State. However section 32(4) of the 2007 Act removes the need for such a considered assessment by the Secretary of State in the case of a ‘foreign criminal’ as defined by the 2007 Act and in effect substitutes the determination of Parliament that the deportation of a foreign criminal is ‘public good conducive’. Thus section 32(4) provides that ‘for the purposes of section 3(5)(a) of the Immigration Act 1971 ..., the deportation of a foreign criminal is conducive to the public good’.
15. The effect of section (1) and (2) of the 2007 Act is that for present purposes a ‘foreign criminal’ is a person who is not a British citizen who is convicted of an offence and who is sentenced to a sentence of at least 12 months.
16. In this case as has been set out above, AG had been convicted of a number of offences in the United Kingdom but the chronology of these offences is important since it was common ground before us that the 2007 Act which was passed on the 30th August 2007 and came into force on the 1st August 2008, applies only to those who have been convicted after the passing of the Act or who were convicted before that date but at the time of commencement were in custody awaiting or serving a sentence or whose sentence was suspended. See section 59 of the Act and the decision of the Court of Appeal in AT (Pakistan) v SSHD [2010] EWCA Civ 567 at paragraphs 7-10.
17. The chronology shows AG...
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