Zulfiqar (‘Foreign Criminal’; British Citizen)
| Jurisdiction | UK Non-devolved |
| Judge | Mandalia UTJJ,O'Callaghan |
| Judgment Date | 11 September 2020 |
| Neutral Citation | [2020] UKUT 312 (IAC) |
| Year | 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2020] UKUT 312 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
O'Callaghan and Mandalia UTJJ
Mr S Muquit instructed by Turpin & Miller LLP, for the Claimant;
Mr T Lindsay, Senior Home Office Presenting Officer, for the Secretary of State.
AK (Sierra Leone) v Secretary of State for the Home Department [2016] EWCA Civ 999; [2017] Imm AR 319; [2017] INLR 681
AT (Pakistan) and JT (Pakistan) v Secretary of State for the Home Department [2010] EWCA Civ 567; [2010] Imm AR 675; [2011] INLR 277
Akinvemi v Secretary of State for the Home Department (No. 2) [2019] EWCA Civ 2098; [2020] 1 WLR 1843; [2020] 3 All ER 857; [2020] INLR 175
Bah (EO (Turkey) – liability to deport) [2012] UKUT 196 (IAC); [2013] INLR 115
CI (Nigeria) v Secretary of State for the Home Department [2019] EWCA Civ 2027; [2020] Imm AR 503; [2020] INLR 191
CL v Secretary of State for the Home Department [2019] EWCA Civ 1925; [2020] 1 WLR 858
Danso v Secretary of State for the Home Department [2015] EWCA Civ 596
EG and NG (UT rule 17: withdrawal; rule 24: scope) Ethiopia [2013] UKUT 143 (IAC); [2013] Imm AR 670; [2013] INLR 700
Guardian News and Media Ltd and Others, Re [2010] UKSC 1; [2010] 2 AC 697; [2010] 2 WLR 325; [2010] 2 All ER 799
HA (Iraq) v Secretary of State for the Home Department; RA (Iraq) v Secretary of State for the Home Department[2020] EWCA Civ 1176; [2021] 1 WLR 1327; [2020] INLR 639
Herrera v Secretary of State for the Home Department [2018] EWCA Civ 412; [2018] Imm AR 1033
Hesham All (Iraq) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799; [2017] 3 All ER 20; [2017] Imm AR 484; [2017] INLR 109
Hussein v Secretary of State for the Home Department [2009] EWHC 2492 (Admin); [2010] Imm AR 320
Khuja v Times Newspapers Ltd and Others [2017] UKSC 49; [2019] AC 161; [2017] 3 WLR 351
OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694; [2009] INLR 109
OLO and Others (para 398 – “foreign criminal”) [2016] UKUT 56 (IAC)
RU (Bangladesh) v Secretary of State for the Home Department [2011] EWCA Civ 651; [2011] Imm AR 662
SC (paras A398–339D: ‘foreign criminal’: procedure) Albania [2020] UKUT 187 (IAC); [2020] Imm AR 1121
Secretary of State for the Home Department v Devani [2020] EWCA Civ 612; [2020] 1 WLR 2613; [2020] Imm AR 1183
Yussuf (meaning of “liable to deportation”) [2018] UKUT 117 (IAC); [2018] INLR 678
British Nationality Act 1981, section 13
Crime (Sentences) Act 1997, sections 28(5) & 31(3)
European Conveation 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), Part 13; paragraphs A398, 398(a), 399 & 399A
Nationality Immigration and Asylum Act 2002, Part 5A, sections 82, 84 & 117A D
Tribunals, Courts and Enforcement Act 2007, section 11(2)
Tribunal Procedure (Upper Tribunal) Rules 2008, rule 24
UK Borders Act 2007, sections 32, 34(1) & 59(4)(d)
UK Borders Act 2007 (Commencement No. 3 and Transitional Provisions) Order 2008, Articles 2 & 3
Human rights — Article 8 of the ECHR — private and family life — proportionality — public interest — risk of re-offending — rehabilitation — procedure and process — deportation — meaning of ‘foreign criminal’ — Part 5 A of the 2002 Act and Part 13 of the Immigration Rules — former British citizen
The Claimant was born in the United Kingdom in 1979 as a British citizen. He was also a citizen of Pakistan by descent. He had resided in the United Kingdom since birth. In November 2005, he was convicted of murder and sentenced to a mandatory term of life imprisonment with a minimum term of 15 years. He was further sentenced to concurrent sentences of two years for violent disorder and two years for assault occasioning actual bodily harm. The offences were committed in November 2004 when the Claimant and two other men randomly attacked the victim after a night of heavy drinking. All three men were arrested after planning to leave the country and travel to Pakistan to avoid arrest and prosecution. The Claimant had remained in custody and latterly immigration detention since November 2004. In January 2007, the Secretary of State for the Home Department decided not to pursue deportation because the Claimant was a British citizen.
In October 2008, the Claimant applied to be repatriated to Pakistan under the terms of the Prisoner Transfer Agreement. The Ministry of Justice refused the application as, upon release from a prison in Pakistan, the Claimant would not be subject to the supervision requirements necessary for his life licence in the United Kingdom. In August 2011, the Claimant applied to renounce his British citizenship. He stated that he was motivated to do so because he wanted to transfer to Pakistan and serve his sentence in that country, enabling him to be close to his parents who were in poor health. The Secretary of State approved the renunciation in October 2011 being satisfied that the Claimant also held Pakistani citizenship. In June 2015, the Claimant married Z, a British citizen, with whom he had been friends since 2003. Consequent to the Claimant's arrest and imprisonment the couple enjoyed limited contact until Z visited the Claimant in prison in January 2013 and they commenced their relationship in April of the same year. Z had two children from her first marriage, both of whom were minors and British citizens.
In October 2017, the Claimant applied to resume his British citizenship under section 13 of the British Nationality Act 1981. The Secretary of State rejected the application on the grounds that the Claimant could not satisfy the good character requirement given his convictions. The Secretary of State concluded that, as the Claimant was a British citizen at the time of the offence, he could not be considered a foreign criminal for deportation purposes under the definition set out by section 32 of the UK Borders Act 2007 (“the 2007 Act”). Accordingly, she issued a notice of intention to make a deportation order under section 3(5)(a) of the Immigration Act 1971 (“the 1971 Act”) in January 2018. The Claimant asserted that deportation would breach his right to family and private life under Article 8 of the ECHR. The Secretary of State refused his human rights claim in October 2018.
The First-tier Tribunal (“FtT”) dismissed the Claimant's appeal against that decision in November 2019. In considering the relevant legal framework regarding deportation, the FtT Judge mistakenly understood that the Secretary of State had conceded that the Claimant was not a foreign criminal for the purposes of Part 13 of the Immigration Rules HC 395 (as amended). The Judge undertook a ‘very compelling circumstances’ consideration of the Claimant's Article 8 rights outside the Rules, though erroneously reducing the weight to be given to the public interest consequent to her misunderstanding as to the Secretary of State's concession. The Judge concluded that deportation would not be a disproportionate interference with the Claimant's right to respect for his family and private life.
Before the Upper Tribunal, the Claimant relied upon four grounds of appeal, which were advanced as rationality challenges. First, the FtT Judge gave unsustainable and/or inadequate reasons for rejecting his assertion that he was induced by the Secretary of State to renounce his British citizenship and further that his citizenship would resume if he were not repatriated to Pakistan. Secondly, the Judge had raised a doubt as to him having been informed as to the possibility of being repatriated when that was not a fact in issue. Thirdly, the Judge ‘downgraded’ the weight to be attributed to his family life on the basis that it was formed at a time when he had renounced his citizenship. Fourthly, the Judge failed lawfully to consider the factors favourable to him when considering his private life rights, such as his having lived his entire life in the United Kingdom, his extensive rehabilitation and his not being a continuing risk of perpetrating criminal behaviour.
Held, dismissing the appeal:
(1) In ground one, the Claimant submitted that the FtT Judge had erred in not accepting both his evidence and the evidence of Z and other family members as to his having been induced to renounce his British citizenship, and so ‘wrongly discounted’ a highly material factor mitigating the public interest in his deportation. That submission was, however, simply a disagreement with the Judge's factual findings. It was implicit that the hearsay evidence presented by family and friends could carry no positive weight in circumstances where it relied solely upon information provided by the Claimant. The Claimant had erred in fact by mistakenly asserting that he was advised to renounce his British citizenship by ‘immigration officers’. The named individuals were employed by the Ministry of Justice but were not agents or servants of the Secretary of State at the relevant time and were clearly not immigration officers. The documentary evidence was not capable of evidencing the Claimant's contention that he was induced to renounce his citizenship upon being informed that it would resume if he were not transferred within a specified period. On the evidence presented it was lawfully open to the FtT Judge to conclude that the Claimant had not met the burden placed upon him to establish that he was materially influenced by the purported representations when deciding to renounce his British citizenship and that the sole material influence upon his decision was his desire to act in a manner he considered best for his parents. In all the circumstances, the rationality challenges advanced by grounds one and two could not succeed (paras 56 – 63).
(2) In addressing the Article 8 issues it was necessary to determine whether the Claimant was a...
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