England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge McGeachy
DA/01047/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th October 2014

Lord Justice Moore-Bick :

1. This is an appeal against the decision of the Upper Tribunal dated 30^th September 2013 allowing the Secretary of State's appeal against the decision of the First-tier Tribunal, which had itself allowed the appellant's appeal against the decision of the Secretary of State to make a deportation order against him pursuant to section 32 of the UK Borders Act 2007.
2. The appellant is a national of the People's Republic of China who entered this country in February 2002. He formed a relationship with his current partner and their first child, a son, was born in January 2008. In July 2008 the appellant was granted indefinite leave to remain and his son was granted British citizenship in November that year.
3. On 15^th June 2010 the appellant was convicted on his own plea of two offences of robbery, for which he was sentenced on 30^th July 2010 to two terms of 5 years' imprisonment to be served concurrently. The robberies were of a serious nature. During the night the appellant entered a ground floor flat shared by two young women while they were asleep. Having woken them, he tied them both up, took their bank cards and frightened them into giving him the PIN numbers. One managed to wriggle free and was able to telephone the police, but when the appellant realised that she was free he tied her up again. He said that if she had called the police, he would kill her. She had in fact managed to call the police, who arrived to find the appellant still in the flat and in possession of the bank cards. The sentence reflected the fact that neither of the young women had been physically injured and that the appellant had pleaded guilty at the first opportunity.
4. On 3^rd February 2011, while the appellant was in prison, his partner gave birth to their second child, a daughter. His partner was granted indefinite leave to remain in October 2011 and at some stage their daughter was granted British citizenship.
5. On 6^th November 2012 the Secretary of State informed the appellant that she was obliged to make a deportation order against him under section 32(5) of the UK Borders Act 2007 unless he fell within any of the prescribed exceptions, which she did not consider to be the case. However, the appellant had a right to appeal against that decision, which he duly exercised and the matter came before the First-tier Tribunal for hearing in February 2013. Having considered the nature of the offence, the motivation for it, the likelihood of the appellant's re-offending, the circumstances likely to be faced by the family if they were to be removed to China and the best interests of the appellant's children, the tribunal concluded that removing him would amount to a disproportionate interference with their right to respect for family life and therefore allowed the appeal.
6. The Secretary of State appealed to the Upper Tribunal, which held that the First-tier Tribunal had made errors of law. The Upper Tribunal considered that the assessment of the competing factors made by the First-tier Tribunal had been too superficial and that as a result it had erred in three respects: in assessing the best interests of the children, in failing to approach correctly the weight to be attached to the appellant's offending, and in assessing the risk of his re-offending. The Upper Tribunal therefore decided to set aside the decision and re-make it and for that purpose it heard evidence from both the appellant and his partner before reaching its conclusion. On 30^th September 2013 it published its decision allowing the Secretary of State's appeal.
7. The grounds of appeal against the decision of the Upper Tribunal are that it was wrong to hold that the First-tier Tribunal had erred in law, alternatively, that it had itself made an error of law in failing to give sufficient weight to what was in the best interests of the appellant's children as well as to other factors, including the age at which the appellant had entered the United Kingdom, the date of the offences, his behaviour since committing the offences and his immigration history and that of his partner. Mr. Slatter, who appeared on the appellant's behalf, also submitted that the Upper Tribunal had no jurisdiction to consider any possible error on the part of the First-tier Tribunal other than its approach to assessing the children's best interests because that was the only point put forward by the Secretary of State in her reasons for seeking permission to appeal from its decision.

A Was the Upper Tribunal wrong to hold that the First-tier Tribunal had erred in law?

(i) Jurisdiction

8. It is convenient to dispose of the question of jurisdiction first. I am prepared to assume for the purposes of argument that Mr. Slatter was right in saying that the Upper Tribunal's jurisdiction is circumscribed by the reasons that the appellant relies on for challenging the decision of the First-tier Tribunal. Even so, I am unable to accept the next step in his argument for a number of reasons. The first is that the reasons given by the Secretary of State for appealing against the decision of the First-tier Tribunal were framed in terms broad enough to cover all the matters which she wished to, and did, pursue before the Upper Tribunal and which the tribunal dealt with in its decision. In particular, the contention that the First-tier Tribunal had failed to give proper consideration to the particular weight to be given to the appellant's offending was covered by paragraphs 2 and 3 of the reasons, which between them identified the argument that the tribunal had failed correctly to apply paragraphs 398-399A of the Immigration Rules. The tribunal's assessment of the risk of the appellant's re-offending, although not specifically mentioned, was part and parcel of that exercise. The tribunal's assessment of the best interests of the appellant's children was squarely challenged in paragraph 4. Accordingly, there is no substance in the suggestion that the errors of law found by the Upper Tribunal had not been fairly raised.
9. Quite apart from that, however, it is apparent from the terms of the Upper Tribunal's decision that it was never suggested in argument that its jurisdiction was limited to considering the First-tier Tribunal's assessment of the children's best interests. There was a hearing before the Upper Tribunal on 23^rd July 2013 to consider whether the decision of the First-tier Tribunal contained material errors of law, at which the appellant was represented by solicitors and counsel. At the end of the hearing the tribunal informed the parties that it had found errors of law in the decision of the First-tier Tribunal and I find it impossible to believe that those errors had not been fully canvassed in argument. There was no suggestion that the tribunal might be about to exceed its jurisdiction, which reflects the fact that the reasons for appealing were framed in terms that were broad enough to cover all the matters which the Secretary of State wished to pursue. No doubt for the same reason, the argument that the Upper Tribunal had exceeded its jurisdiction did not form any part of the grounds of appeal to this court. For all these reasons I am satisfied that there is nothing in this point.

(ii) The application of the Immigration Rules

10. It is convenient to consider this ground first. Paragraphs 398 and 399 of the Immigration Rules provide as follows:

"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 because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b) the deportation of the person from the UK is conducive to the public good 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 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.

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) . . .

and in either case

(a) it would not be reasonable to expect the child to leave the UK; and

(b) there is no other family member who is able to care for the child in the UK; or

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, [or is] settled in the UK . . . "

Paragraph 399A is concerned with long residence and is not relevant to this case.

11. Having referred to paragraphs 398-399A of the Immigration Rules, the First-tier Tribunal correctly noted that paragraphs 399 and 399A did not apply because the appellant had been sentenced to a term of imprisonment of more than 4 years. He was therefore required to show that there were exceptional circumstances justifying his remaining in the UK which outweighed the public interest in his deportation. In his evidence to the tribunal the appellant said that the robberies of which he had been convicted were opportunistic, but the tribunal rejected that explanation and found that it was more likely than not that he had targeted his victims specifically for theft and had waited until he found them at home alone. That, of course, added to the seriousness of the offences. The appellant said that he had committed the offences in order to obtain money to pay off substantial debts. The tribunal accepted that those debts had since been settled by his partner's father and did not therefore consider that there was a risk that the appellant would commit further offences.
12. The First-tier Tribunal then turned to consider the position of the appellant's children. The respondent had accepted that it would be unreasonable to expect them as British citizens to leave the country and the tribunal appears to have proceeded on that basis. However, it found that, if the whole family were to leave, they would be likely to join his partner's relatives rather than his own. Having recorded that there was no evidence regarding the risk in her parents' province of the family's being penalised under the 'one child' law, it nonetheless found that it was reasonably likely that they would be penalised and that the penalties might extend to imprisonment for one of the parents. The unsatisfactory nature of that finding is obvious.
13. In paragraph 75 of its decision the First-tier Tribunal accepted that the appellant did not meet the requirements of the Immigration Rules, but, basing itself on the decisions of the Upper Tribunal in MF (Article 8 - new rules) Nigeria [2012] UKUT 00393 (IAC) and Izuazu (Article 8 - new rules) Nigeria [2013] UKUT 45 (IAC), it held that interference with his right to family life could be considered even if he could not demonstrate the existence of exceptional circumstances. That involved the application of a two-stage test of the kind recognised in those cases, under which it was necessary to consider possible interference with an appellant's article 8 rights in accordance with general principles, even if he could not bring himself within the scope of the Immigration Rules. The tribunal considered that the Secretary of State's failure to take into account the fact that the appellant's deportation would separate him from his children for at least ten years and the effect on the children of that separation meant that her decision was not in accordance with the law. In the tribunal's view the children's interests would best be served by their being brought up by both parents in this country. When balancing the public interest in preventing crime, protecting the public and expressing society's disapproval of the crimes committed by the appellant, the tribunal found that deporting him would involve a disproportionate interference with his, and their, right to respect for family life. In making that assessment it placed some reliance on its finding that the risk of re-offending was low.
14. In my view the First-tier Tribunal clearly erred in its understanding and application of the Immigration Rules, although it cannot be blamed for doing so. The two decisions of the Upper Tribunal to which it referred, MF (Nigeria) and Izuazu, which approved a two-stage approach of the kind which it applied, were overruled in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 WLR 544 when the case reached this court on appeal. Before that had occurred, however, this court had already heard the appeal in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550, [2014] 1 WLR 998, in which Laws L.J., with whom the other members of the court agreed, emphasised the importance to be attached to the policy expressed in section 32 of the UK Borders Act 2007.
15. In MF (Nigeria) the court accepted that paragraphs 398 - 399A of the Immigration Rules were intended to cover the ground previously occupied by the general law relating to article 8 in the context of deporting foreign criminals. In paragraphs 40 - 41 Lord Dyson M.R. said:

"40. Does it follow that the new rules have effected no change other than to spell out the circumstances in which a foreign criminal's claim that deportation would breach his article 8 rights will succeed? At this point, it is necessary to focus on the statement that it will only be "in exceptional circumstances that the public interest in deportation will be outweighed by other factors". Ms Giovannetti submits that the reference to exceptional circumstances serves the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who do not satisfy paras 398 and 399 or 399A. It is only exceptionally that such foreign criminals will succeed in showing that their rights under article 8(1) trump the public interest in their deportation.

41. We accept this submission. . . . "

16. Later at paragraphs 42 - 44 he said:

"42. . . in approaching the question of whether removal is a proportionate interference with an individual's article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be "exceptional") is required to outweigh the public interest in removal. In our view, it is no coincidence that the phrase "exceptional circumstances" is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals.

43. The word "exceptional" is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the "exceptional circumstances".

44. We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence. We accordingly respectfully do not agree with the UT that the decision-maker is not "mandated or directed" to take all the relevant article 8 criteria into account (para 38)."

17. Two points of importance emerge from the decisions in SS (Nigeria) and MF (Nigeria). First, both emphasise the great weight to be attached to the public interest in the deportation of foreign criminals and the importance of the policy in that regard to which effect has been given by Parliament in the UK Borders Act 2007, a weight and importance neither of which seem to have been fully appreciated by the First-tier Tribunal in this case. The second is that it is wrong to consider the question of infringement of article 8 rights outside the terms of the Immigration Rules, as the First-tier Tribunal did.
18. In my view, therefore, the Upper Tribunal was right to find that the First-tier Tribunal had committed an error of law in this respect and it is unnecessary to consider whether it was also right to find that the First-tier Tribunal had erred in its assessment of the appellant's risk of re-offending and in assessing the children's best interests. However, since the points were argued, I shall state my conclusions on them briefly.

(ii) Assessing the risk of re-offending

19. The First-tier Tribunal based its conclusion that the risk of the appellant's re-offending was low on two matters: the fact that he was a category D prisoner with no negative entries on his record and the fact that his partner's father had settled the debts which had led him to commit the robbery without imposing on him any responsibility for repayment. I tend to agree with the Upper Tribunal that in the absence of any more reliable indication of the kind that is commonly provided in the form of an OASys report these facts provide a flimsy basis for a finding that the appellant posed a low risk of re-offending. However, if this had been the only error the tribunal had made, I doubt whether I should have regarded it as sufficient grounds for setting aside its decision.

(iii) The best interests of the children

20. The First-tier Tribunal recognised, correctly, that the welfare of the appellant's children was a primary consideration. It held that it was clearly in their best interests to be brought up by both parents in the UK, but it did not attempt to disentangle those two elements and said little about the prospects they would face if they returned with their parents to China. Both children are still very young (they are now aged six and a half and two years nine months respectively). The tribunal's findings in relation to the effect of the appellant's removal on the family are not entirely clear. In paragraph 72 it appeared to accept that it would be unreasonable to expect the children to leave the UK, but it went on to consider what penalties the family as a whole would be likely to face on return to China. As I have already pointed out, the basis for the tribunal's findings in that regard is also unclear, since it proceeded on the assumption that the family would return to the province where the appellant's partner's family live, in relation to which it said it had no evidence.
21. The Upper Tribunal criticised the findings of the First-tier Tribunal on the grounds that it had failed to consider the whole range of factors that have a bearing on the best interests of children of this young age. As it pointed out, their interests are likely to be best served by remaining with their parents, whether in this country or abroad. The fact that they are British nationals is undoubtedly of importance, since it carries with it the right to live and be brought up here, but in this case the children appear to have formed no particular attachment to this country and are of an age at which they can be expected to integrate into Chinese society with less difficulty than might otherwise have been the case. However, they are not being required to leave the UK, since their mother has indefinite leave to remain and can continue to care for them here, if she so chooses. If the appellant is deported, it will be for him and his partner to decide whether it is in the children's best interests to remain here with her or move to China as part of a united family. In the end, however, this case turned largely on the balance struck between two competing interests: the public interest in the deportation of the appellant and the children's interests in remaining here with both parents.
22. For all these reasons the Upper Tribunal was, in my view, right to hold that the First-tier Tribunal had made errors of law in reaching its decision. It was therefore entitled to set aside the decision and re-make it. The question then arises whether the Upper Tribunal also erred in law in making its decision.

B. Was the decision of the Upper Tribunal wrong?

23. Mr. Slatter submitted that the Upper Tribunal had erred in failing to recognise and give sufficient weight to the interests of the appellant's children and in particular to their British nationality. He reminded us of the importance which Baroness Hale and Lord Kerr had attached to nationality in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166. He also relied on the decision of the Supreme Court in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690 in support of the proposition that where children enjoy British nationality very significant importance should be attached to that fact when considering where their best interests lie and whether one or other parent should be removed from this country.
24. However, it must be borne in mind that both of those cases concerned the removal of persons who were in this country illegally. In neither case was the court concerned with the deportation of a foreign criminal. Mr. Slatter's submissions would carry a good deal of force if the appellant were at risk of being removed merely on the grounds that he did not have leave to remain, but in this case the appellant is susceptible to deportation for other, much more serious, reasons. The Secretary of State was obliged to make a deportation order in respect of him pursuant to section 32 of the UK Borders Act 2007 unless he could bring himself within one of the exceptions in section 33, in this case by establishing that to remove him would involve an unlawful interference with his article 8 rights, and in making her determination she was obliged to weigh up the competing considerations in accordance with paragraphs 398 - 399A of the Immigration Rules. The starting point for any such assessment is the recognition that the public interest in deporting foreign criminals is so great that only in exceptional circumstances will it be outweighed by other factors, including the effect of deportation on any children. However, in cases where the person to be deported has been sentenced to a term of imprisonment for less than 4 years and has a genuine and subsisting parental relationship with a child under the age of 18 years who enjoys British nationality and is in the UK, less weight is to be attached to the pubic interest in deportation if it would not be reasonable to expect the child to leave the UK and there is no one else here to look after him. By contrast, however, where the person to be deported has been sentenced to a term of 4 years' imprisonment or more, the provisions of paragraph 399 do not apply and accordingly the weight to be attached to the public interest in deportation remains very great despite the factors to which that paragraph refers. It follows that neither the fact that the appellant's children enjoy British nationality nor the fact that they may be separated from their father for a long time will be sufficient to constitute exceptional circumstances of a kind which outweigh the public interest in his deportation. The appellant's children will not be forced to leave the UK since, if she chooses to do so, their mother is free to remain with them in this country.
25. The Upper Tribunal did not think that the fact that the appellant had British children made his case exceptional. However, it went on to consider the position of the family if they were all to return to China and reached the conclusion, based on the case of AX (Family Planning Scheme) China CG [2012] UKUT 00097, that they would not suffer such hardship as to prevent their returning or such as would outweigh the presumption in favour of deportation.
26. In my view the decision reached by the Upper Tribunal was one to which it could properly come on the evidence before it. In truth, in the light of the decision in MF (Nigeria) I doubt whether it could have done otherwise. Mr. Slatter submitted that the tribunal had failed to consider in explicit terms the factors identified in Üner v The Netherlands (2007) 45 EHRR 14, but for the reasons I have given they are now subsumed in the Immigration Rules. In my view the Upper Tribunal did not make an error of law in reaching its decision and I would therefore dismiss the appeal.

Lord Justice Ryder :

27. I agree.

Mr. Justice David Richards :

28. I also agree.