Wilson (Niaa Part 5A; Deportation Decisions)

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeLane J,Keith UTJ
Judgment Date25 November 2020
Neutral Citation[2020] UKUT 350 (IAC)

[2020] UKUT 350 (IAC)

UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

Lane J (President) and Keith UTJ

Wilson (Niaa Part 5A; Deportation Decisions)
Representation

Mr A Tan, Senior Home Office Presenting Officer, for the Secretary of State;

Ms A Childs instructed by Duncan Lewis & Co Solicitors, for the Claimant.

Cases referred to:

Charles (human rights appeal: scope) [2018] UKUT 89 (IAC); [2018] Imm AR 911

EO (Deportation appeals: scope and process) Turkey [2007] UKAIT 00062

Huang v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home Department[2007] UKHL 11; [2007] 2 AC 167; [2007] 2 WLR 581; [2007] 4 All ER 15; [2007] Imm AR 571; [2007] INLR 314

LT(Kosovo) and DC (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 1246

R (on the application of Mahmood) v Upper Tribunal (Immigration and Asylum Chamber) and Secretary of State for the Home Department; R (on the application of Esterie) v Secretary of State for the Home Department; R (on the application of Kadir) v Secretary of State for the Home Department[2020] EWCA Civ 717; [2020] QB 1113; [2020] 3 WLR 723; [2020] INLR 583

SC (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 929; [2018] 1 WLR 4474; [2018] Imm AR 1230; [2018] INLR 617

Legislation and international instruments judicially considered:

Europen Convention on Human Rights, Article 8

Human Rights Act 1998, section 6

Immigration Act 1971, section 3(5)–(6) & 5

Immigration Rules HC 395 (as amended), paragraphs 396, 397 & A398 – 399D

Nationality, Immigration and Asylum Act 2002, sections 72(4)(a), 82(1)(b) 113(1) & 1117A–D

UK Borders Act 2007, sections 32 – 33

Human rights — Article 8 of the ECHR — Part 5A of the 2002 Act — foreign criminal — “caused serious harm” — procedure and process — deportation — relationship between Part 5A and deportation decisions

The Claimant, a citizen of St Lucia, entered the United Kingdom as a child in either 2000 or 2002. He was granted discretionary leave to remain until 2011. In May 2018, he was convicted of possessing a bladed/pointed article in a public place. He was sentenced to six months' imprisonment, to run consecutively with a period of five months' imprisonment for breach of a suspended sentence. In passing sentence, the Judge 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 he had been convicted and sentenced in 2016. In September 2018, the Secretary of State for the Home Department decided to make a deportation order as she considered that the Claimant's deportation was conducive to the public good and he was therefore liable to deportation under section 3(5) of the Immigration Act 1971 (“the 1971 Act”). Pursuant to a notice served under section 120 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), the Claimant made a human rights claim. The Secretary of State refused that claim in November 2018. The Claimant appealed to the First-tier Tribunal (“FtT”) on the grounds that his deportation would interfere with his rights under Article 8 of the ECHR as he had a British partner, a son and a second child on the way.

The FtT allowed the Claimant's appeal. The FtT Judge 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. As a result of that finding, 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, the Judge 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”.

The FtT granted the Secretary of State permission to appeal to the Upper Tribunal (“UT”) on the ground that the FtT Judge had erred in law in concluding that the events of possessing a bladed/pointed article in a public place had not caused serious harm. The UT allowed the Secretary of State to amend the grounds of appeal to include the submission that the FtT Judge had erred by allowing the appeal on the basis that the deportation decision was not in accordance with the law. She submitted that the decision under challenge was the decision to refuse the Claimant's human rights claim. As the FtT Judge had failed to conduct a proportionality assessment under Article 8, the decision could not stand.

Held, allowing the appeal:

(1) The current case law on “caused serious harm” for the purposes of the expression “foreign criminal” in Part 5 A of the 2002 Act could be summarised as follows. Whether a person's offence was “an offence that has caused serious harm” within section 117D(2)(c)(ii) was a matter for the judge to decide, in all the circumstances, whenever Part 5A fell to be applied. Provided that the judge had considered all relevant factors bearing on that question; had not had regard to irrelevant factors; and had not reached a perverse decision, there would be no error of law in the judge's conclusion, which, accordingly, could not be disturbed on appeal. In determining what factors were relevant or irrelevant, the following should be borne in mind. The Secretary of State's view of whether the offence had caused serious harm was a starting point. The sentencing remarks should be carefully considered, as they would often contain valuable information; not least what might be said about the offence having caused “serious harm”, as categorised in the Sentencing Council Guidelines. A victim statement adduced in the criminal proceedings would be relevant. Whilst the Secretary of State bore the burden of showing that the offence had caused serious harm, she did not need to adduce evidence from the victim at a hearing before the FtT. The claimant's own evidence to the FtT on the issue of seriousness would usually need to be treated with caution. Serious harm could involve physical, emotional or economic harm and did not need to be limited to an individual. The mere potential for harm was irrelevant. The fact that a particular type of offence contributed to a serious/widespread problem was not sufficient; there must be some evidence that the actual offence had caused serious harm: R (on the application of Mahmood) and Others v Secretary of State for the Home Department[2020] EWCA Civ 717 applied (paras 23 – 38 and 53).

(2) In the instant case, the FtT Judge had regard to all relevant circumstances. He was well aware of the reason that Parliament had seen fit to criminalise the possession of a bladed article in a public place. He was entitled to find that in the Claimant's case no actual harm had been caused. The Claimant had not brandished the knife. Although the Claimant's explanation that he was carrying the knife because he was fearful of being attacked was, of course, not a valid mitigation of the offence of possession, it was not an irrelevant factor in the Judge's assessment of whether the offence had “caused serious harm” for the purposes of Part 5A of the 2002 Act. Whilst the Claimant's possession of a knife plainly carried the risk of harm, were the Claimant to have encountered those whom he alleged to fear, the Judge was entitled to regard such a risk as not amounting to actual harm, or as contributing to actual harm. In referring to the sentencing guidance regarding the prevalence of an offence as an aggravating factor, the FtT Judge was aware of the fact that “prevalence” could, in theory, be relevant to his assessment of whether the Claimant's offence had “caused serious harm”. The Secretary of State's criticism that the FtT Judge had failed to consider adequately the harmful social effect of knife crime upon a neighbourhood or community was misplaced. The Judge's conclusion accorded with the guidance in R (Mahmood), whereby the contribution of an offence to a serious or widespread problem was not sufficient; there needed to be some evidence that the offence had caused serious harm. Accordingly, the FtT Judge did not err in law in concluding that the Claimant's offence was not one that had “caused serious harm”, so as to make the Claimant a “foreign criminal” for the purposes of Part 5A of the 2002 Act (paras 54 – 61).

(3) In a human rights appeal, the decision under appeal was the refusal by the Secretary of State of a human rights claim; that was to say, the refusal of a claim, defined by section 113(1) of the 2002 Act, that removal from the United Kingdom or a requirement to leave it would be unlawful under section 6 of the Human Rights Act 1998 (“the 1998 Act”). The FtT was, therefore, not deciding an appeal against the decision to make a deportation order and/or the decision that removal of the individual was, in the Secretary of State's view, conducive to the public good. It was concerned only with whether removal in consequence of the refusal of the human rights claim was contrary to section 6 of the 1998 Act. If Article 8(1) of the ECHR was engaged, the answer to that question required a finding on whether removal would be a disproportionate interference with Article 8 rights. The Secretary of State's decisions under the 1971 Act that a person's deportation would be conducive to the public good and that a deportation order should be made in respect of that person 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 FtT in a human rights appeal. Such unlawfulness was not...

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  • Upper Tribunal (Immigration and asylum chamber), 2021-08-05, HU/05092/2020
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 5 August 2021
    ...be aware that this will not necessarily be the whole, or even a truthful, picture….” In Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 00350 (IAC), the Upper Tribunal gave guidance on s.117D(2)(c). Having set out at length passages from the Court of Appeal’s judgment in Mahmood an......

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