Upper Tribunal (Immigration and asylum chamber), 2020-11-25, [2020] UKUT 350 (IAC) (Wilson (NIAA Part 5A; deportation decisions))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Keith |
| Status | Reported |
| Date | 25 November 2020 |
| Published date | 10 December 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | NIAA Part 5A; deportation decisions |
| Hearing Date | 03 November 2020 |
| Appeal Number | [2020] UKUT 350 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 00350(IAC)
THE IMMIGRATION ACTS
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Heard at Field House by Skype |
Decision & Reasons Promulgated |
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On 3 November 2020 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE KEITH
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
AKIM TYLER WILSON
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant: Mr A Tan, Senior Home Office Presenting Officer
For the Respondent: Ms A Childs, Counsel, instructed by Duncan Lewis & Co Solicitors
(A) section 117D(2)(b)(ii): ”caused serious harm”
The current case law on “caused serious harm” for the purposes of the expression “foreign criminal” in Part 5A of the 2002 Act can be summarised as follows:
(1) Whether P’s offence is “an offence that has caused serious harm” within section 117D(2)(c)(ii) is a matter for the judge to decide, in all the circumstances, whenever Part 5A falls to be applied.
(2) Provided that the judge has considered all relevant factors bearing on that question; has not had regard to irrelevant factors; and has not reached a perverse decision, there will be no error of law in the judge’s conclusion, which, accordingly, cannot be disturbed on appeal.
(3) In determining what factors are relevant or irrelevant, the following should be borne in mind:
(a) The Secretary of State’s view of whether the offence has caused serious harm is a starting point;
(b) The sentencing remarks should be carefully considered, as they will often contain valuable information; not least what may be said about the offence having caused “serious harm”, as categorised in the Sentencing Council Guidelines;
(c) A victim statement adduced in the criminal proceedings will be relevant;
(d) Whilst the Secretary of State bears the burden of showing that the offence has caused serious harm, she does not need to adduce evidence from the victim at a hearing before the First-tier Tribunal;
(e) The appellant’s own evidence to the First-tier Tribunal on the issue of seriousness will usually need to be treated with caution;
(f) Serious harm can involve physical, emotional or economic harm and does not need to be limited to an individual;
(g) The mere potential for harm is irrelevant;
(h) The fact that a particular type of offence contributes to a serious/widespread problem is not sufficient; there must be some evidence that the actual offence has caused serious harm.
B. Deportation decisions and human rights appeals
(1) In a human rights appeal, the decision under appeal is the refusal by the Secretary of State of a human rights claim; that is to say, the refusal of a claim, defined by section 113(1) of the Nationality, Immigration and Asylum Act 2002, that removal from the United Kingdom or a requirement to leave it would be unlawful under section 6 of the 1998 Act. The First-tier Tribunal is, therefore, not deciding an appeal against the decision to make a deportation order and/or the decision that removal of the individual is, in the Secretary of State’s view, conducive to the public good. It is concerned only with whether removal etc in consequence of the refusal of the human rights claim is contrary to section 6 of the Human Rights Act 1998. If Article 8(1) is engaged, the answer to that question requires a finding on whether removal etc would be a disproportionate interference with Article 8 rights.
(2) The Secretary of State’s decisions under the Immigration Act 1971 that P’s deportation would be conducive to the public good and that a deportation order should be made in respect of P would have to be unlawful on public law grounds before that anterior aspect of the decision-making process could inform the conclusion to be reached by the First-tier Tribunal in a human rights appeal.
DECISION AND REASONS
A. OVERVIEW
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The Secretary of State appeals against the decision of First-tier Tribunal Judge Kainth who, following a hearing at Harmondsworth on 16 December 2019, allowed the appeal of the respondent (hereafter, claimant) against the refusal by the Secretary of State of the claimant’s human rights claim. That refusal occurred on 5 November 2018. It followed representations made by the claimant, pursuant to a notice served on him under section 120 of the Nationality, Immigration and Asylum Act 2002, in consequence of the Secretary of State’s decision on 19 September 2018 to make a deportation order in respect of the claimant.
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Having heard evidence from the claimant and other witnesses, Judge Kainth found that the claimant had not been convicted of an offence that had “caused serious harm”, within the meaning of section 117D(2)(c)(ii) of the 2002 Act. The conviction in question was in respect of the offence of possessing a blade/pointed article in a public place, for which the claimant was sentenced to six months’ imprisonment, to run consecutively with a period of five months’ imprisonment for breach of a suspended sentence. For the reasons we shall give, Judge Kainth was not wrong in law to reach his conclusion on the “serious harm” issue.
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As a result of his finding on this issue, the judge held that the Secretary of State’s decision to make a deportation order in respect of the claimant was “not in accordance with the law”. Since deportation would, according to the judge, be unlawful, any attempt to remove the claimant from the United Kingdom, pursuant to the deportation order, would necessarily represent a disproportionate interference with the claimant’s rights under Article 8 of the ECHR. Having reached that conclusion, Judge Kainth ended his decision by saying that he had “not gone on to consider Article 8 in light of my above findings or the exceptions to deportation or the provisions as contained within the amended, Nationality, Immigration and Asylum Act 2002, section 117A - section 117D” (paragraphs 28 and 30). As we shall explain, Judge Kainth’s approach here was legally erroneous.
B. THE APPELLANT AND HIS CRIMINALITY
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The appellant is a citizen of St Lucia, born in 1996. He entered the United Kingdom in either 2000 or 2002, in order to visit his father. He had leave to enter as a visitor for six months. In 2006, the claimant was granted discretionary leave to remain until June 2008. The leave was subsequently extended to June 2011.
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In May 2018, the appellant was convicted of the offence described above. In passing sentence, HHJ Canavan referred to the fact that the claimant had twice breached his suspended sentence order, which related to an offence of affray in respect of which the claimant was convicted and sentenced in 2016. In May 2017, the claimant had committed an offence of criminal damage; but the suspended sentence was (wrongly) not activated at that time.
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The judge’s sentencing remarks continued as follows:-
“What was your response to the second opportunity that you had been given? It was, essentially, to go out and commit yet another offence and, in many ways, the most serious offence that you have committed in your relatively young life, you being 22 years of age, because, on 24 April, you went out in possession of a lock knife. A knife you knew you were not entitled to have.
The dangers of knife crime are all too obvious to all of us. You, in particular, because of your unfortunate family circumstances, can hardly say that you are unaware of the consequences of, often young, men carrying knives and using them or having them used on them in public places.
Every day, it seems, on television, we see sad tales of families torn apart, of lives wrecked, by the use of unlawful knives on our streets. That is why carrying a knife in a public place is so serious.
In your case, it is made even worse by the fact that was your third breach of the suspended sentence …
I take into account your guilty plea at the first available opportunity …”
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HHJ Canavan’s observation that the claimant could not have unaware of the consequences of men carrying knives is explained at paragraph 22 of Judge Kainth’s decision. The judge accepted the claimant’s evidence -
“that he was carrying the lock knife because he was fearful after his uncle (husband of Ms Goodman) was stabbed and his cousin having been threatened. Ms Goodman in her evidence before me explained that her family were trying to remove a gang of people from selling drugs from their building. Her evidence was not challenged.”
C. LEGISLATION
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Section 3(5) of the Immigration Act 1971 identifies who is liable to deportation:-
“(5) 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; or
(b) another person to whose family he belongs is or has been ordered to be deported.”
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Section 3(6) makes provision for liability to deportation, where certain persons who are not British citizens are convicted of an offence.
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Section 5 sets out the procedure for deportation, along with some related provisions. Section 5(1) provides:-
“(1) Where a person is under section 3(5) or...
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