(Immigration and Asylum Chamber)
Johnson (deportation - 4 years imprisonment)  UKUT 282 (IAC)
THE IMMIGRATION ACTS
Heard at Field House
On 26 April 2016
The Hon. MR JUSTICE TURNER
UPPER TRIBUNAL JUDGE JORDAN
The Secretary of State for the Home Department
For the Secretary of State: Mr S. Kotas, Home Office Presenting Officer
For Mr Johnson: Mr D. Lemer, Counsel, instructed by Howe & Co., Solicitors
When a foreign offender has been convicted of an offence for which he has been sentenced to imprisonment of at least 4 years and has successfully appealed on human rights grounds, this does not prevent the Secretary of State from relying on the conviction for the purposes of paragraph 398(a) of the Immigration Rules and s.117C of the 2002 Act if and when he re-offends even if the later offence results in less than 4 years imprisonment or, indeed, less than 12 months imprisonment.
DECISION AND REASONS
The application for an adjournment
The immigration history
decision. At the time the decision was made on 28 January 2014, the Rules in bracketed sections in italics have since been omitted by rule changes introduced on 28 July 2014. Hence the respondent's decision maker properly applied the old law; the First-tier Tribunal Judge was, however, required to apply the new law in her decision promulgated on 24 October 2014 as, of course, do we.  The changes are reflected in the words set in square brackets. Together, these provide:
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
(a) the deportation of the person from the UK is conducive to the public good [and in the public interest] because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least four years;
(b) the deportation of the person from the UK is conducive to the public good [and in the public interest] because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(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, ( it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors) [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 .]
The application of paragraph 398
399. This paragraph applies where paragraph 398(b) or (c) applies if - (a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK and (i) the child is a British citizen; or (ii) the child has lived in the UK continuously for at least the seven years immediately preceding the date of the immigration decision; and in either case
(a) ( it would not be reasonable to expect the child to leave the United Kingdom) [it would be unduly harsh for the child to live in the country to which the person is to be deported]; and
(b) ( there is no other family member who is able to care for the child in the United Kingdom) [it would be unduly harsh for the child to remain in the UK without the person who is to be deported];
or (b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, [or] settled in the UK, ( or in the UK with refugee leave or humanitarian protection,) and ( (i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and (ii) there are insurmountable obstacles to family life with that partner continuing outside the United Kingdom)
[(i) the relationship was formed at a time when the person was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported because of compelling circumstances over and above those described in paragraph EX.2 of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported].
399A. This paragraph applies where paragraph 398(b) or (c) applies if - ((a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family ) with the country to which he would have to go if required to leave the UK; or (b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.)
[(a) the person has been lawfully resident in the UK for most of his life; and (b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported].
117CArticle 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.
(3)In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(5)Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
As stated earlier in this letter, deportation action is being considered against you on conducive grounds in light of your 2013 convictions for making off without payment, driving while disqualified and using a vehicle without insurance.
H owever, it is noted that you were sentenced in 2007 to 4 years imprisonment for possessing controlled drugs with intent to supply. Paragraph 398 (A) of the rules is therefore applicable when considering Article 8 in your case.
The Immigration Rules state that it will only be in exceptional circumstances that a person's right to family and/or private life would outweigh the public interest in seeing a person deported where they had been sentenced to a period of imprisonment of at least four years.
Consideration has been given to your personal circumstances, as well as those family members affected by the decision to deport you. It has been concluded that the reasons given below that there are no exceptional circumstances in your case which would outweigh the public interest in seeing you deported.
43. The wording of Rule 398 in its 2012 version is unsatisfactory because, although it is meant to be part of a "complete code" it does not deal with the very many different possible circumstances that might arise. Nonetheless, the wording refers to "an offence" not more than one. Even if the singular included the plural, it would be necessary to import more words into Rule 398(a) if the aim was to take account of all the person's offences historically, then tot up all the sentences of all those offences, so as to make a grand total of a period of imprisonment which, in total for a number of different offences on different occasions, amounted to at least four years. I am not prepared to manipulate the wording of Rule 398(a) to such an extent to produce that result. We have to construe the words sensibly in their normal and natural meaning.
44. Therefore, in my view, only one offence at a time has to be taken into account and the only question is whether, for that particular offence, the sentence was more than 4 years.
Conclusion on the preliminary issue
Chapter 13: criminality guidance in Article 8 ECHR cases
2.2.2 Once a foreign criminal has been sentenced to a period of at least four years' imprisonment, he will never be eligible to be considered under the exceptions. This applies even if deportation was not pursued at the time of the four year sentence because there were very compelling circumstances such that deportation would have been disproportionate, and the foreign criminal goes on to reoffend and is sentenced to a period of imprisonment of less than four years. This is because his deportation will continue to be conducive to the public good and in the public interest for the four year sentence as well as any subsequent sentences.
[Paragraphs 34 to 47 of the determination have been omitted from the reported decision.]
1. The determination of the First-tier Tribunal has been set aside as containing a material error on a point of law.
2. We re-make the decision allowing the Secretary of State's appeal against the decision of the First-tier Tribunal.
3. We dismiss the appeal of Mr Johnson against the Secretary of State's decision to make a deportation order on all the grounds advanced.
UPPER TRIBUNAL JUDGE
28 April 2016