YM (Uganda) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Colin Rimer,Lord Justice Aikens |
| Judgment Date | 10 October 2014 |
| Neutral Citation | [2014] EWCA Civ 1292 |
| Docket Number | Case No: C5/2013/1864 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 October 2014 |
[2014] EWCA Civ 1292
Lord Justice Aikens
Sir Colin Rimer
and
Sir Stanley Burnton
Case No: C5/2013/1864
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
JUDGE LATTER and JUDGE KEKIC
IA097392008
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Knafler QC & Patrick Lewis (instructed by Lawrence Lupin Solicitors) for the Appellant
Jonathan Hall QC (instructed by Treasury Solicitors) for the Respondent
Hearing date: 19/06/2014
I. Synopsis
YM was born in Uganda on 24 June 1984. He came to the UK with his mother and siblings in 1991 when he was aged six. He obtained indefinite leave to remain in the UK in 2001 when he was 16. His mother and siblings have obtained British nationality, but YM has not. That is because he started to commit crimes when he was 14, his age when he was convicted of robbery. He was subsequently convicted of assault occasioning actual bodily harm when he was 15, of three assaults on constables, committed when he was 18, and of aggravated burglary when he was 19. For this last offence he was sentenced in Croydon Crown Court on 5 September 2003 to 3 years 6 months in a Youth Offender Institution ("YOI"). On 11 November 2004 YM was warned in a letter from the Secretary of State for the Home Department ("SSHD") that a serious view was taken of the aggravated burglary offence and that YM was at risk of being deported if he should "come to adverse notice in the future".
Whilst in detention in the YOI, YM began seriously to practice Islam, the religion to which he was born. On the day of his release, 18 March 2005, YM married J, a British citizen, in an Islamic marriage ceremony. They have remained married and have had 3 children, who were born, respectively, in December 2005 (IS), October 2009 (AQ) and 25 December 2011 (IL). J, who converted to Islam before marrying YM, is a trained midwife who works part-time.
After YM's release on licence in 2005 he used to attend the Croydon Mosque and that led him to go to meetings at the house of a man called Hamid, whom YM subsequently admitted was a fanatical Islamist. These encounters resulted in YM attending two terrorist training camps in the New Forest in 2006. He was arrested in September 2006 and charged on two counts of offences under section 8(2)(a) of the Terrorism Act 2006. Broadly speaking this sub-section makes it an offence for anyone to attend a place, in the UK or elsewhere, where he has instruction or training in (for short) activities that can be used for terrorist purposes or in the use of weapons, where instruction or training is wholly or partly for purposes connected with terrorism. Under section 8(2)(a) it has to be proved that the offender knew or believed that instruction or training is being provided at the particular place "wholly or partly for purposes connected with the commission or preparation of acts or terrorism or Convention offences". YM pleaded guilty to the two counts and on 26 February 2008, in the Crown Court at Woolwich, Pitchers J sentenced YM to 3 years 5 months imprisonment on each count, the sentences to run concurrently. Because YM had been in custody since his arrest, he was actually released on licence in June 2008.
Meanwhile on 22 May 2008 YM was served with a deportation notice by the SSHD which stated that, as a result of his convictions and sentences for the terrorist offences, the SSHD deemed it to be conducive to the public good to make a deportation order against him pursuant to sections 3(5)(a) and 5(1) of the Immigration Act 1971 as amended. A letter dated 23 June 2008 set out the SSHD's reasons. It stated that "it was not accepted" that the decision to deport would give rise to any interference with the family life of YM within the terms of Article 8 of the European Convention on Human Rights (ECHR), or, if there was any such interference, it "could be justified in the circumstances" of his case.
YM appealed the deportation decision and on 1 July 2009 the Asylum and Immigration Tribunal (AIT) allowed his appeal both on human rights grounds under Article 8 and on immigration grounds under paragraph 364 of the Immigration Rules (HC 395) as amended. In August 2009 YM was warned for having contacted a co-defendant to the terrorist charges. (Non-contact was a condition of YM's licence). In December 2009 YM was recalled to prison at the same time as being arrested on suspicion of handling stolen goods. Those charges were not pursued and in January 2010 YM was released on licence again. Then on 5 October 2011 he was given a caution as a result of a "road rage" incident. In June 2012 YM was arrested on a charge of fraud in connection with an application for motor insurance. He subsequently pleaded guilty and was sentenced to a 12 month community supervision order and disqualified from driving for 12 months.
The SSHD appealed the AIT's decision and on 22 June 2011 the Upper Tribunal (UT) set aside the determination of the AIT for error of law and directed that the UT should re-make the decision. At the re-determination hearing on 22 February 2013 the UT heard oral evidence from YM, his wife J, YM's mother and also J's mother. It had before it written evidence from various witnesses in support of YM's case. It also had expert written evidence from Professor Silke, someone the UT described as having "considerable expertise" on terrorism generally and terrorist psychology in particular, 1 and Professor Allen, an expert on East African and Ugandan affairs and professor at the London School of Economics. Lastly, the UT had reports from an independent social worker who had twice visited YM, J and their family to observe and comment upon the family relationships and the possible consequences if YM were to be deported.
The UT promulgated its decision on 2 May 2013 and allowed the SSHD's appeal. In summary, it rejected arguments advanced by Mr Lewis of counsel that there was a real risk that YM's rights under Article 3 of the ECHR would be breached if he were to be returned to Uganda. 2 The UT also rejected the argument that, with regard to YM's Article 8 rights, the case should be dealt with on the basis of the revised Immigration Rules that had come into force on 9 July 2012. 3 However, the UT also found that YM could not have satisfied their terms even if they were applicable. Further, whilst the UT accepted that the deportation of YM would interfere with his Article 8 rights, it concluded that there were very serious reasons justifying deportation despite YM's long residence in the UK and the impact deportation would have on his family life. The UT was satisfied that "the decision to deport the appellant is necessary and proportionate to a legitimate aim within Article 8(2)". 4 The effect was that, in re-making the AIT's decision, it dismissed YM's appeal based on Article 3 and Article 8 grounds "as well as on humanitarian protection and immigration grounds". 5 Therefore the SSHD's decision to deport was upheld.
Permission to appeal to this court was given by Sir Stephen Sedley. At the hearing on 19 June 2014 it was accepted on behalf of the SSHD that the relevant revised Immigration Rules that had came into force on 9 July 2012 ("the 2012 Rules") must be applied by this court in determining whether the UT had erred on a point of law in relation to YM's Article 8 appeal. However, there was a dispute during oral argument as to precisely how the new rules were to be applied in an appeal context, particularly in relation to YM's age, which is a key factor in the 2012 Rules and could be a key factor in YM's case, because he was under 25 when the SSHD made her decision in 2008, but he is now just over 30. YM maintained his appeal on the Article 3 ground as well.
The issues on the appeal divide neatly into those under Article 8 and those under Article 3. In the oral argument before us the Article 8 issues were taken first, and it seems to me more sensible to deal with those issues before dealing with those under Article 3. It is therefore convenient to set out the statutory framework relating to the deportation of "foreign criminals" and the relevant 2012 Rules which came into force on 9 July 2012, as a result of the Statement of Changes in Immigration Rules (HC 194). Those Rules were intended to encapsulate the SSHD's current policy with regard to a foreign criminal's Article 8 rights when he would otherwise be faced with a mandatory deportation order. This appeal has been made more complicated by the fact that relevant provisions of the Immigration Act 2014 and Immigration Rules 2014 came into force on 28 July 2014, that is after the oral hearing but whilst this judgment was being prepared.
II. The statutory framework including the new provisions of the Immigration Act 2014 concerning a foreign criminal's Article 8 rights when he is faced with a deportation order and the relevant Immigration Rules
First, I will refer to the statutory framework relating to deportation of non-EEA nationals who have committed offences in the UK which were in force at the time that the deportation notice was served. At that time the matter was governed by the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999 – together the 1971 Act) and paragraph 364 of the Immigration Rules then current. Section 3(5)(a) of the 1971 Act provided 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...
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