ON APPEAL FROM
The High Court of Justice
Queen's Bench Division (Administrative Court)
The Upper Tribunal (Immigration and Asylum Chamber)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE COULSON
LORD JUSTICE MALES
|R (on the application of Yasir Mahmood)||Appellant|
|Upper Tribunal (Immigration and Asylum Chamber)|
|Secretary of State for Home Department||1st Respondent2nd Respondent|
|Secretary of State for Home Department|
|Secretary of State for Home Department||Respondent|
Alexis Slatter (instructed by KTS Legal) for Estnerie
Michael Biggs and Arif Rahman (instructed by My Legal Ltd) for Kadir
Marcus Pilgerstorfer QC (instructed by Government Legal Department) for the Respondents
Virtual hearing date: 12 May 2020
Crown Copyright ©
Lord Justice Simon:
(2) In this Part, 'foreign criminal' means a person
(a) who is not a British citizen
(b) who has been convicted in the United Kingdom of an offence, and
(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.
Article 8: additional considerations in cases involving foreign criminals -
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
A398. These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked.
398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
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;
Section 5 sets out 'the procedure for, and further provisions as to, deportation':
(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him
Count 1, an offence of possessing or controlling identity documents with intent, contrary to s.4 of the Identity Documents Act 2010 (offence date: 23 December 2013 to 31 July 2015), 4 months' imprisonment.
Counts 2-6, offences of being a person who is not a British Citizen obtaining or seeking leave to enter or remain in the United Kingdom, contrary to s.24A(a) of the Immigration Act 1971 (offence dates: 15 January 2002, 20 May 2013, 5 May 2015, 2 October 2015 and 9 March 2016): 8 months' imprisonment, concurrent with each other, but consecutive to the 4 months' term imposed under count 1.
this is a 48 year old man who made a completely bogus asylum application, which failed and he did not attend the hearing, being out of the country at the time, that is the first aspect; the second is between 2013 and 2016, he made a string of immigration applications from within the United Kingdom and deceived his wife into supporting him along the way by becoming a sponsor; and the third aspect is that, having been issued in the midst of all of this, with a temporary residence permit, he extended it himself by falsifying the expiry date and used that document to obtain work, indeed difficult and important work, for which he was paid he worked for a period of 15 months in the particular employment that he obtained with the false identity card.
The interpretation of s.117D(2)
17. I should say straightaway that I am afraid that I do not consider that the references to the Criminal Justice Act or the sentencing guidelines are of any assistance to the adjudication of the questions before us on this appeal.
That may be putting the matter too high, since the characteristic of an offence as causing 'serious harm' within the Sentencing Council Definitive Guidelines may be referred to in the sentencing remarks which are likely to be of assistance. On the other hand, the fact that the offence is not characterised as one causing 'serious harm' for sentencing purposes is plainly not determinative of the issue that arises under s.117D(2)(c)(ii).
19. The view of the Secretary of State or indeed of a judge in sentencing remarks may be of assistance to a tribunal or court in deciding whether an offence has caused serious harm or whether an offender is a persistent offender, but I do not see that the statutory words compel any particular weight to be given to the Secretary of State's view on either in the assessment ...
I have been given no further information about the [sexual offence]. However, I do know that she was a young girl no older than 14/15 who received an intimate picture from a 23-year old man, and who sent an intimate picture by return. [Counsel for Mahmood] says that there is no evidence that she was thereby caused serious harm; however, I disagree. She was a young teenager who was sexually exploited by a significantly older man. That experience will live not only with her but also with her parents for a considerable time. The sexual exploitation of children causes serious harm to society in general as well as the direct victims. I consider that I am entitled to and do find, in the absence of evidence to the contrary, that serious harm was caused to the victim, her parents and to wider society. The harm is exacerbated by [Mahmood's] failure to comply with reporting requirements and the SHPO, the objectives are to protect vulnerable children and the public at large from sexual offenders and from child exploitation.
I do not consider that a lack of serious harm can be inferred from the imposition (at least initially) of a non-custodial sentence. [Mahmood] received the longest community order allowed by law
Abuses of the asylum system or human rights applications delay the claims of those with meritorious claims. They cause public concern and undermine trust and confidence in the system of immigration controls. The use of false identity cards can give rise to various concerns and these were described in the decision letter. By any standards these were serious offences which harmed the administration of the system of immigration control.
(1) We dismiss the claim for judicial review in the case of Mahmood.
(2) We dismiss the appeal in the case of Estnerie, not because it has been shown that any of his six offences caused serious harm, but because (as set out in the respondent's notice) he is a persistent offender.
(3) We refuse permission to appeal in the case of Kadir.