SE (Zimbabwe) v The Secrtary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Elias,Lord Justice Beatson |
| Judgment Date | 13 March 2014 |
| Neutral Citation | [2014] EWCA Civ 256 |
| Docket Number | Case No: C5/2013/2608 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 March 2014 |
[2014] EWCA Civ 256
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE McKEE AND UPPER TRIBUNAL JUDGE O'CONNOR
DA/00622/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice Elias
and
Lord Justice Beatson
Case No: C5/2013/2608
Mr Raza Husain QC, Mr Eric Fripp and Mr David Chirico (instructed by Luqmani Thompson & Partners) for the Appellant
Mr Mathew Gullick (instructed by Treasury Solicitor) for the Respondent
Hearing date: 13th February 2014
This judgment is in eight parts, namely:
| Part 1. Introduction | (paragraphs 2 to 9) |
| Part 2. The facts | (paragraphs 10 to 16) |
| Part 3. The tribunal proceedings | (paragraphs 17 to 26) |
| Part 4. The appeal to the Court of Appeal | (paragraphs 27 to 30) |
| Part 5. The first ground of appeal: was the Upper Tribunal right to set aside the decision of the First-tier Tribunal? | (paragraphs 31 to 42) |
| Part 6. The second ground of appeal: did the Upper Tribunal err in treating SE's prospects of rehabilitation as irrelevant? | (paragraphs 43 to 56) |
| Part 7. The third ground of appeal: SS (Nigeria) | (paragraphs 57 to 61) |
| Part 8. Executive summary and conclusion | (paragraphs 62 to 66). |
This is an appeal by a Zimbabwean national against a decision of the Upper Tribunal that he should be deported, following his conviction for wounding with intent to cause grievous bodily harm. The issues in this appeal are whether the Upper Tribunal was entitled to set aside the decision of the First-tier Tribunal; how, if at all, the prospects of rehabilitation should be taken into account in an evaluation under article 8.2 of the European Convention on Human Rights ("ECHR"); and whether the Upper Tribunal was correct to follow the Court of Appeal's decision in SS (Nigeria) v SSHD [2013] EWCA Civ 550.
The subject of these proceedings has been given anonymity and is referred to as SE. SE was the appellant before the First-tier Tribunal and the respondent before the Upper Tribunal. He is the appellant in this court. I shall refer to him as SE throughout.
Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the UK, if the Secretary of State deems his deportation to be conducive to the public good.
Section 32 of the UK Borders Act 2007 ("the 2007 Act") provides:
" Automatic deportationE+W+S+N.I.
(1) In this section "foreign criminal" means a person—
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that —
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33)."
Section 33 of the 2007 Act provides:
" ExceptionsE+W+S+N.I.
(1) Section 32 (4) and (5) —
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach —
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention.
(3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.
(4) Exception 3 is where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the EU treaties."
For present purposes, I do not need to set out the latter parts of section 32 or section 33 of the 2007 Act.
Article 8 of the ECHR provides:
" Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
After setting out the relevant legislation, I must now turn to the facts.
SE is a citizen of Zimbabwe, born on 8 th March 1972. He came to the UK on 29 th June 2001 and was granted six months leave to enter as a visitor. He remained in the UK after that leave had expired. On 26 th April 2002 SE applied for leave to remain as a student. That application was refused. On 13 th December 2002 he applied for leave to remain based on ancestry. In support he submitted a document purporting to be his grandfather's birth certificate. The Secretary of State refused the application because that document was false. On appeal Immigration Judge Callow dismissed SE's appeal under the Immigration Rules, but held that he was entitled to remain in the UK under ECHR article 8.
Unfortunately, while living in the UK SE did not keep out of trouble. On 30 th May 2002 he committed an assault occasioning actual bodily harm. He was cautioned for this offence. On 23 rd August 2006 SE was found in possession of cocaine. He pleaded guilty to this offence and was ordered to do 120 hours of unpaid work.
On 22 nd August 2009 SE went to a nightclub with Ms KK, who was the mother of one of his children. He became involved in a dispute with a man called R. The outcome of this fracas was that SE hit R in the face with a glass. R suffered appalling facial injuries. SE was arrested and in due course faced a charge of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences against the Person Act 1861.
There was a delay of 15 months before SE stood trial. There were two significant events during this period. On 12 th June 2010 SE married Ms ZC, who became the step mother of another of SE's children, ME. After that SE continued seeing Ms KK. On 29 th June 2010 there was a domestic dispute in which SE assaulted Ms KK. He received a caution for battery in respect of that offence.
SE's trial for the offence of wounding with intent took place at Southwark Crown Court in November 2010. He pleaded not guilty, asserting that he had been acting in self-defence. The jury rejected his evidence and returned a verdict of guilty. The trial judge, Her Honour Judge Kent, sentenced SE to four and a half years imprisonment.
Pursuant to section 32 (5) of the 2007 Act the Secretary of State concluded that she was obliged to make a deportation order in respect of SE. She notified SE of that decision.
SE was aggrieved by the decision to deport. Accordingly he commenced tribunal proceedings.
SE appealed to the First-tier Tribunal against the Secretary of State's decision to deport him on the ground that such deportation would constitute a breach of ECHR article 8. The First-tier Tribunal allowed SE's appeal in a written determination dated 14 th December 2012.
The tribunal's reasoning was as follows. SE enjoyed family life with his wife, ZE, and his daughter ME (by then aged 18). They had both visited him regularly in prison. He did not enjoy family life with his former girlfriend, KK, or their son, JK. Neither KK nor JK had visited SE in prison. Mrs ZE had a responsible job in England and she could not be expected to relocate to Zimbabwe. Deportation to Zimbabwe would probably sever SE's relationship with Mrs ZE and ME for many years. The tribunal took into account the seriousness of SE's offence, the fact that it was not premeditated, the length of SE's stay in the UK (11 years) and SE's improved conduct since his conviction. After carrying out the balancing exercise under article 8, the tribunal concluded that the balance came down in favour of SE.
The First-tier Tribunal summarised its conclusions in paragraph 32 of its determination as follows:
"We have not found this an easy matter to determine. However, we balance against the Appellant's undoubtedly serious offending and the fact the State has an interest in deporting foreign criminals, the fact that he has a wife who is British who remains devoted to him and with whom it is expected he will live following his release from prison and who it is not reasonable to ask to return with the Appellant to Zimbabwe. He also has his daughter here who is in the process of making application to the Court which may lead to her having the right to remain in the United Kingdom. We accept that we have no means of knowing what impact the Appellant's removal would have on JK. The Appellant says he has learned his lesson. We hope that is indeed the case. We find that the balance is just tipped in his favour and for these reasons that it would be disproportionate for him to be removed from the United Kingdom."
The Secretary of State was aggrieved by the...
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