ZP (India) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Christopher Clarke,Sir Timothy Lloyd |
| Judgment Date | 24 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1197 |
| Docket Number | Case No: C5/2014/3292 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 November 2015 |
[2015] EWCA Civ 1197
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge Conway
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
Lord Justice Christopher Clarke
and
Sir Timothy Lloyd
Case No: C5/2014/3292
Mr John McKendrick (instructed by the Government Legal Department) for the Appellant
Mr Michael Biggs (instructed by Hanson Young) for the Respondent
Hearing date: 23 July 2015
The Respondent is an Indian national, born on 12 January 1969. She came to this country on 10 September 2002 on a visitor visa. She became involved in a conspiracy to facilitate bogus marriages for immigration purposes, and indeed she entered into such a marriage herself and obtained an extension of her leave to remain on that basis. In May 2003 she was arrested and charged in relation to those offences. She fled to India and was convicted in her absence.
On 14 January 2005, while still in India, the Respondent married another British national ("RO"). It is common ground that that marriage was lawful, so presumably her previous marriage had been dissolved. She applied for leave to enter the UK as his wife, using a false Indian passport in another name. She made an application for leave in her assumed identity on 31 May 2005. This was granted on the 30 June 2005 and she re-entered the UK on 16 July 2005. It is common ground that her husband was at the time wholly unaware of her history.
On 28 September 2006 the Respondent gave birth to a son ("YO"). She was granted indefinite leave to remain – again, in her false identity – on 19 July 2007.
Shortly afterwards the Respondent's true identity was discovered. On 17 January 2008 she was sentenced to twelve months' imprisonment for obtaining leave to enter the UK by deception and also to twelve months' imprisonment in respect of the offences on which she had been convicted in her absence in 2003, the two terms to run consecutively. A deportation order was made on 28 November 2008. She appealed, but her appeal was unsuccessful and she was deported on 6 November 2009.
The result of her deportation was that the Respondent was separated from her husband and son. At first the arrangement was that YO would spend part of his time with her in India and part with his father in this country, but after two years or so this was decided to be too unsettling for him and he now lives permanently here with his father.
On 7 April 2012 solicitors instructed on the Respondent's behalf applied for the deportation order to be revoked, so that she could come back to live with her husband (with whom it is common ground that she still enjoys a strong and subsisting relationship) and her son. She relies on article 8 of the European Convention of Human Rights and section 55 of the Borders Citizenship and Immigration Act 2009, and in particular on the seriously damaging effect on YO of being separated from his mother for so long a period. On 27 February 2013 the UK Borders Agency refused that application.
The Respondent appealed to the First-tier Tribunal ("the FTT"), which on 10 September 2013 dismissed the appeal. She appealed to the Upper Tribunal ("the UT") and at an error of law hearing on 28 November 2013 the FTT's decision was, by consent, set aside and an order was made for the decision to be re-made by the UT. A hearing took place before UTJ Conway on 8 January 2014. By a decision promulgated on 17 April he allowed the appeal and revoked the deportation order.
The Secretary of State appeals against that decision with the permission of Elias LJ. She has been represented before us by Mr John McKendrick of counsel. The Respondent has been represented by Mr Michael Biggs of counsel. The appeal has been well argued on both sides.
THE STATUTORY PROVISIONS AND THE RULES
The statutory provisions and the Rules relating to the deportation of foreign criminals are now reasonably familiar and have attracted a fair amount of exegesis in the case-law. The present case is of a less usual kind, in that it is concerned with an application for revocation of a deportation order made by an applicant who has been deported and makes the application some years into the "term" of the order. (Applications for revocation by persons who have not yet been deported are not at all uncommon, given that deportation is often not enforced promptly on the making of an order.) We were referred to no authorities dealing with the case of such a post-deportation applicant, and the parties were not agreed either about the applicable provisions or about the approach to be followed.
STATUTE
The Secretary of State's power to deport non-UK nationals derives from section 3 (5) of the Immigration Act 1971 (as amended), which reads, so far as material:
"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) …"
Section 5 of the Act contains further provisions about deportation. The only one relevant for present purposes is sub-section (2), which gives the Secretary of State power to revoke a deportation order "at any time".
The exercise of those powers in the case of non-nationals who commit serious offences is governed by sections 32 and 33 of the UK Borders Act 2007. Section 32 reads (so far as material):
"(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).
(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless–
(a) he thinks that an exception under section 33 applies,
(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or
(c) section 34(4) applies.
(7) …."
I need not set out much of section 33. Sub-section (1) provides:
"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)."
The section goes on to identify six exceptions. But I need only set out the first and third, which are covered in sub-sections (2) and (4), as follows:
"(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.
…
(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."
Mr McKendrick initially submitted that heads (a) and (b) under section 32 (6) must be read together, with the result that even following the deportation of a foreign criminal the Secretary of State could only revoke the order where one of the exceptions under section 33 applied. Mr Biggs disputed that. He relied on the word "or" between heads (b) and (c), but he also pointed out that exceptions 1 and 3 in section 33 are couched in terms of whether the deportation of the foreign criminal "would" breach his rights under the Convention or the EU treaties, which seems to contemplate that it had not yet occurred. He said that it followed that in a "(b) case", i.e. where the criminal had already been deported, the power of revocation fell to be exercised without reference to section 33.
Mr McKendrick acknowledged the force of those points, but he asked for time to consider, and we allowed written submissions to be lodged following the hearing. In the event, because Mr McKendrick was not available, the submissions on behalf of the Secretary of State were settled by the Government Legal Department. Those submissions are not quite explicit, but as I read it they accept that Mr Biggs is right. In any event, it is in my view clear that he is: in particular, it is quite clear that the heads under sub-section (6) are drafted as alternatives. Accordingly, if an application for revocation is made by a foreign criminal who is outside the UK the Secretary of State has power to grant the application even if none of the exceptions under section 33 applies. And in fact, as the Government Legal Department pointed out, most of the section 33 exceptions will not be available to someone abroad and/or will have been held not to apply at the time of the original deportation decision; so in practice head (b) will almost always afford the only available gateway.
However, although Mr Biggs's point is important in the interests of accurate analysis I do not believe that it makes much difference in practice. It is true that, as he submitted, the non-applicability of section 33 in a post-deportation case means that Parliament has not made any express provision about what the public interest requires in such a case, so that the Secretary of State's discretion is unfettered by statute. But if it has been established when the...
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