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)
Case No. IA/12810/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th October 2014

Lord Justice Bean:

Chronology

1. The appellant was born on 18 December 1971. On 17 January 1995, at the age of 23, he came to the UK on a student visa with leave to remain for 12 months. An application for further leave to remain was refused in 1996. From that point to the present day he has had no legal right to be in this country.
2. On 4^th August 1998 he made a claim for asylum, alleging that he was a Rwandan national and giving a detailed account of the persecution he had allegedly endured in that country. Also in 1998 he committed two road traffic offences: driving with excess alcohol, for which he was disqualified from driving; and later driving while disqualified, for which he served a short term of imprisonment.
3. On 13^th August 1999 a son, Y, was born to him and his then partner. The relationship broke up soon afterwards and for some time the appellant's contact with Y has been limited to telephone calls.
4. In 2000 he met his present wife. They were married in a traditional ceremony. On 18^th February 2004 their son, X was born. In the meantime, however, on 24^th October 2003, the appellant had committed an offence of rape. The victim was a young adult woman, M. Following a trial in the Crown Court at Kingston upon Thames before His Honour Judge Thomas and a jury the appellant was convicted, sentenced to six years imprisonment and recommended for deportation. The sentencing judge stated that the defendant had deployed his opportunities to get M into his car and then rape her "in a most unscrupulous fashion", she having trusted him at the time as an older man. The judge said that the evidence showed that the victim had been very much upset for a long time, and perhaps would be permanently so in some degree, as a result of the crime.
5. On 9^th January 2006 the appellant was served with notice of the Secretary of State's intention to deport him to Rwanda. His appeal against that decision was dismissed by the Tribunal on 24^th March 2006. Permission to appeal was refused, as was an application to the High Court for reconsideration. By July 2006 his appeal rights were exhausted. On 21^st November 2006 the Secretary of State made an order for his deportation to Rwanda.
6. On 26^th October 2007 the custodial period of his sentence for rape expired. He was transferred from prison to immigration detention. He twice refused to comply with the Emergency Travel Document process. On 18^th March 2008 an immigration judge granted him bail. We have not been supplied with a copy of that decision, but we infer that bail was granted because at that time there was no reasonable prospect of his being removed to Rwanda in the near future.
7. On 6^th February 2009 the appellant's wife and their son X were granted indefinite leave to remain in the UK. A few weeks later the first of a series of written representations on behalf of the appellant was made to the Home Office. He admitted for the first time that he is not Rwandan but Tanzanian.
8. The appellant's wife had been diagnosed as HIV positive in 2003. A medical report on her dated 25^th March 2010 sets out some details. She has been prescribed medication: provided that this continues, the prognosis for her expectation of life is at least 20-25 years, and may be longer. She is able to pursue her career as a social worker. Since his release the appellant has acted as primary carer for X.
9. On 28^th March 2012 the 2006 deportation order was revoked and on 25^th May 2012 a new one was signed for the appellant's deportation to Tanzania on the grounds that his continued presence in the UK was not conducive to the public good. He appealed to the First Tier Tribunal ("FTT") which by a determination of 22^nd August 2012 dismissed the appeal. The Upper Tribunal ("UT") granted permission to appeal on the papers, inter alia because the FTT had failed to distinguish between a case of automatic deportation and a case such as the present of "conducive" deportation. When the case came on for oral hearing on 23^rd April 2013 the FTT decision was set aside by consent and the case retained (again by consent) for rehearing on the merits in the UT.
10. That hearing took place before a two judge panel on 29^th July 2013. By a determination promulgated on 24^th September 2013 the Upper Tribunal dismissed the appeal and subsequently refused permission to appeal to this court. Permission was, however, granted on the papers by Beatson LJ on 11^th February 2014. He identified two points of principle: firstly, the passage of time since the original deportation order during which the appellant has been of good behaviour; and secondly, the disability of the appellant's wife. These have formed the core of the submissions before us on the appellant's behalf.

The "expert evidence" before the Upper Tribunal

11. At the substantive hearing in the UT on 29^th July 2013 the appellant was represented by Ms Meredith. The appellant did not give oral evidence (although he had done so before the FTT); his wife did. The UT also had before them a thirty page report from a social worker, Ms Christine Brown, as well as the appellant's OASys risk assessment from his time in prison: this indicated a "raised" risk of reconviction for sexual offences within two years of release, and a "medium" risk after his release of harm to known adults, but otherwise a low risk to the public and to children.
12. After noting Ms Brown's qualifications and the fact that her report had been based primarily on discussions with the appellant and his wife the UT commented:-

"The report draws on academic opinion to support the essentially uncontroversial assertion that little boys benefit from a close relationship with their fathers and we are wholly unsurprised that her conclusion [is] that the appellant's removal could not be done without adversely affecting both his son and his partner."

The Appellant's attitude to his conviction

13. The fact that the appellant is still in denial about the offence of rape is confirmed by all the statements he has made. His description in his witness statement of the act which led to his conviction is that "being so gullible I fell into temptation and one thing led to another: I slept with her believing there was mutual consent". Similarly in the report of Ms Brown on her interview with him she writes that:-

"[The appellant] told me that he was not a man who would force himself on another woman and that, although his actions were wrongly judged in every sense, it was never his intention to engage in a sexual act with [the victim] to which she had not consented. He told me that he had used neither force nor violence and believed that the act was sexual intercourse between two consenting adults."

14. The UT noted that a number of people connected with the appellant's local church and community had written supporting references. They observed that "these letters show no indication that the appellant has been frank about his past and his reasons for being subject to deportation. They reveal one side of his character but they do not show that he is a man who has faced up to his previous, seriously bad behaviour. Rather they reveal a picture of a man who continues to deny his previous wrong behaviour."

The findings of the Upper Tribunal

15. It is evident from the Determination that the UT fully understood the points in the appellant's favour. They set them out eloquently at paragraphs 68-71:-

"68. We make it plain that we accept that the appellant's partner does depend on him from time to time because of her own ill-health and this is a real factor in favour of allowing the appeal. We also accept that his removal would be a big disruption in his private and family life and the private and family lives of his children. They are clearly innocent of his wrongdoings and the respondent's delay in processing the application.

69. We also reminded ourselves of the extremely serious nature of the order being contemplated. For practical purposes the appellant would be returned to a country where he has not lived for some years and left to establish himself as best as he could and somehow preserve a relationship with his sons in the United Kingdom. For the boy it would represent the father being snatched from the family home and removed to a point where he would be unlikely to have any meaningful contact with him for a long time. Certainly there would be no prospect of his father being involved in his day to day life in a way which we believe is wholly beneficial to the child's development. Deporting the appellant is in some ways a greater threat to the parent child relationship than was imprisoning him. Apart from possible periods of occasional contact the separation will last longer than the prison sentence and travel for the purposes of contact will be much harder and expensive to arrange.

70. As we made clear above the rather cavalier way in which the respondent considers the effects of removal on X, implying that a day-to-day relationship with a father can be satisfactorily replaced by plugging into a computer is chillingly wrong. Whilst the respondent no doubt takes very seriously her obligations to protect the citizens of the United Kingdom it does leave us wondering just how much regard she gives to her obligation to respect and promote the private and family lives of people who live there lawfully.

71. Although not persuaded by them we understand the arguments for allowing this appeal. Notwithstanding the serious nature of the offence the appellant has established a nuclear family in the United Kingdom where, on the evidence before us, his wife is more than ordinarily dependent on him and his son X enjoys a lively and important relationship with him. Although guilty of a serious offence the appellant's criminal behaviour was some time ago and has not been repeated. What is achieved by breaking up this family?"

16. The UT set out the points which told against the appellant. First and foremost of these was the gravity of the offence of rape. They also found that the appellant had "plainly been very manipulative; this is how he has managed to sustain a claim in two different identities for prolonged periods of time". As to reliance by Ms Meredith on the Home Office's delay in processing the claim, the Tribunal observed:-

"We are not particularly impressed with this point. Part of the delay at least was because the appellant was not truthful about his identity. A fresh decision was made and the truth emerged. Whilst it is in a way to the appellant's credit that he eventually told the truth, it does not excuse him from the considerable harm done to his credibility by his being so dishonest and manipulative."

17. At the conclusion of their Determination the UT found as follows:-

"72. We do not accept that this is a case of a man who has put his past behind him. Certainly there is no evidence of his having committed further offences but neither is there is any evidence of his having faced up to the consequences of what he did. He denies that he is a rapist. Further there is no evidence that he has been frank with the people in the church who may have been in a position to assist him. His history is one of a person who is "manipulative" which word describes aptly a person who continues to pursue an asylum claim in a false identity. We do not accept that he is a man who has put his criminal past behind him. Rather we find he is a man who has behaved himself when he has been subject to intense scrutiny and that is not the same at all. Whilst the risk of re-offending is probably low we find that there is a risk of his becoming violent or unlawfully working out his frustrations on another innocent victim if he is thwarted in the future. His failure to accept his responsibility means, we find, that we are not satisfied that he does not present a risk to public safety and that is a reason for removing him."

73. Further his failure to accept responsibility heightens society's revulsion of his crime. We do not mean to imply that the appeal would necessarily have been allowed if the appellant had admitted his wrong doing. He would still have committed a very serious offence. However the need to express public disapproval is diminished (not necessarily extinguished) where the appellant can say that however wrong he has been he has addressed his criminal behaviour and has taken steps to avoid further trouble and can point to many years without conviction to give substance to his claim. Such a line of argument is not open to someone such as this appellant who refuses to admit that he has done wrong.

74. We have reflected carefully on Counsel's argument but we cannot avoid the fact that this is a man who has been to prison for six years for an offence of rape which he continues to deny. He committed the offence when he had no lawful right to be in the United Kingdom and the close family ties that have been developed since have been developed at a time when he knew that there was uncertainty concerning his status.

75. We do not think that deporting the appellant is an obvious or easy step. It will cause significant disruption to the private and family lives of innocent people. However, we have come to the conclusion that it is a justified interference. If an unrepentant rapist cannot be removed then perhaps no one could be removed. He can be removed and he should be. We are aware that this will be a hard decision that will cause pain to his partner and his son Y and maybe even harm to his son X.

76. Before reaching a conclusion we reminded ourselves expressly of the requirements of paragraph 364 of HC 395. All relevant factors have been considered. We have had particular regard to the needs of his children and his partner and to the passage of time. We accept that he is a man integrated into the United Kingdom and who in some ways, albeit perhaps modest ones, makes a positive contribution. Nevertheless, putting all these things together, we cannot ignore the public revulsion that is felt towards a rapist and the appellant's situation is made worse by his refusal to admit the offence.

77. The appellant's offence was one of great gravity and in all the circumstances we dismiss the appeal."

The statutory regime

18. The regime applying to this case, where the appellant's conviction was in 2004 and the deportation decision now under appeal was on 23^rd May 2012, was the Immigration Act 1971 and paragraph 364 of the Immigration Rules. The changes made by Section 33 of the United Kingdom Borders Act 2007, making deportation mandatory in certain cases, do not apply in the case of convictions recorded before the commencement of that statutory provision in August 2008. As to the Rules, on 9^th July 2012 amendments to the Immigration Rules deleted paragraph 364 and brought into effect paragraphs 398 to 399A. This court in YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 held that the 2012 version of rules 398/399 and 399A is to be applied by the FTT, the UT and the courts even in cases where the deportation decision was made before July 2012.
19. Paragraph 398 in the 2012 version of the Rules provided:-

"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 deportation of the person from the UK is conducive to the public good 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 question of which rules were applicable was not in issue in this appeal. Mr Martin Westgate QC for the appellant accepted that his client must show factors which amount to exceptional circumstances in order to outweigh the public interest in deportation.

20. I remind myself at this stage that an appeal from the UT to this court lies only on a question of law. It is not the function of this court to substitute our view of proportionality for that of the UT unless and until an error of law is shown. The correctness or otherwise in law of the Tribunal's decision is to be judged on the basis of the statutory provisions then applicable.

The case law

21. In OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694 the Court of Appeal summarised the propositions of law arising in this type of deportation case:

"(a) The risk of reoffending is one facet of the public interest but, in the case of very serious crimes, not the most important facet.

(b) Another important facet is the need to deter foreign nationals from committing serious crimes by leading them to understand that, whatever the other circumstances, one consequence of them may well be deportation.

(c) A further important facet is the role of a deportation order as an expression of society's revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes.

(d) Primary responsibility for the public interest, whose view of it is likely to be wider and better informed than that of a tribunal, resides in the respondent, and accordingly a tribunal hearing an appeal against a decision to deport should not only consider for itself all the facets of the public interest but should weigh, as a linked but independent feature, the approach to them adopted by the respondent in the context of the facts of the case.".

22. In MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544 Lord Dyson MR, giving the judgment of this court, said that:

"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."

23. SS (Nigeria) v Secretary of State for the Home Dept [2013] EWCA Civ 550 considered the interrelation between the interests of the public in effecting the foreign criminal's deportation and the interests of his child or children. Laws LJ said:

"43 I will next describe two characteristics, one positive, the other negative, which the learning shows apply in Article 8 cases involving children. The first is that the interests of the child or children are a primary consideration. The second (which applies to all removal cases, whether or not there are children) is that there is no rule of "exceptionality": that is, there is no class of case where the law stipulates that an exceptional Article 8 case must be shown in some situations but need not be in others……..

"54……while the authorities demonstrate that there is no rule of exceptionality for Article 8, they also clearly show that the more pressing the public interest in removal or deportation, the stronger must be the claim under Article 8 if it is to prevail. The pressing nature of the public interest here is vividly informed by the fact that by Parliament's express declaration the public interest is injured if the criminal's deportation is not effected. Such a result could in my judgment only be justified by a very strong claim indeed."

24. SE (Zimbabwe) v Secretary of State for the Home Department [2014] EWCA Civ 256 again considered the balance to be struck between the interests of the State in deporting foreign criminals and the interests of those criminals and/or their families. The court confirmed that where someone has been convicted of a very serious crime, the need to deter and the need to express society's revulsion at such criminality are even more important factors to be taken into account than the risk of reoffending. The harm to the public that would result if deportation were not effected includes the failure to deter other potential foreign criminals.
25. The most recent relevant decision of this court, given on 9 October 2014, is LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310. In that case the appellant had been sentenced to five years' imprisonment for burglary. His Article 8 claim relied on his relationships with his partner who had indefinite leave to remain in the UK and their two children who were British citizens. This court found that there were no exceptional, nor very compelling, circumstances and that it was proportionate to deport the appellant given the seriousness of his offending. Moore-Bick LJ emphasised at [24] 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".

Discussion

26. Mr Westgate submits that in assessing proportionality in the present case the Tribunal failed adequately to take into account the time which had elapsed since the index offence and the fact that the appellant had been crime-free in that period. It misdirected itself in holding that it was not open to the appellant to rely on a significant crime-free period as reducing the public interest in deportation because he had not acknowledged his guilt. On the latter point he drew our attention in particular to the UT's observation that "if an unrepentant rapist cannot be removed then perhaps no one could be removed".
27. I consider first the issue of whether the UT regarded the appellant's conviction and his failure to acknowledge his guilt as conclusive. If the observation to which I have just referred were taken in isolation, it might suggest that this was the UT's view. But it should not be viewed in isolation. As I have noted, the UT set out in eloquent terms the points to be made on the other side. They accepted that deporting the appellant was not "an obvious or easy step" and that it would cause significant disruption to the private and family lives of innocent people, but concluded that nevertheless the interference was justified. This is the language of the balancing exercise, and that exercise was one which the UT conducted appropriately and with care.
28. As to the passage of time, it is right to say that the appellant has been of good character since his release from detention in February 2008 and that there is evidence that he is integrated into his local community. But the force of this argument is greatly diminished by the fact that most if not all of this period of time at liberty in the UK was procured by fraud. If the appellant had admitted from the start that he was Tanzanian, then the 2006 deportation order would have been for his removal to Tanzania. Once the custodial period of his prison sentence in October 2007 expired, there would have been no obstacles which I can see to his removal to Tanzania, except such delay as he was able to procure by a refusal to cooperate in the obtaining of an emergency travel document. Instead, he was released on bail in early 2008, and more than six and a half years later he is still here. (Although for the first 21 months or so he was on licence following his release from custody, I do not agree, with respect, with the UT's glancing reference to this period having been one during which he has been "subject to intense scrutiny".)
29. It is true that after his admission in 2009 that he was a Tanzanian national, and thus that his asylum claim had been wholly fraudulent, the Home Office did not react until March 2012. But, as the UT put it, that was because the respondent is overworked and under-resourced, and the appellant had used that to his advantage by changing his story. When the 2006 deportation order was revoked on 28^th March 2012 and a replacement order signed for deportation to Tanzania on 25^th May 2012, that gave him the windfall of an opportunity to pursue the new series of appeals which has culminated in the hearing before the UT and now the hearing before us.
30. Mr Westgate also complains of the Tribunal's emphasis on the appellant not having put his past behind him. He criticises what he describes as the UT's failure to engage with the report of Ms Brown, in particular as to the rehabilitative effect on the appellant of his time in custody which included his being weaned off alcohol and drugs. For my part I agree with the submission of Ms Catherine Rowlands for the respondent that the report of Ms Brown, insofar as it goes to rehabilitation, is strictly speaking not expert evidence, in the sense of evidence of opinion on issues not within the general knowledge of the UT, but more in the nature of a further character reference. On future risk from the appellant, the Tribunal had before them the OASys report and were able to read and consider it without Ms Brown's assistance. They were entitled to make their own findings as to the appellant's character and the degree of his rehabilitation from the facts presented to them.
31. Insofar as Ms Brown offered the opinion that T would be adversely affected by the deportation of his father, the Tribunal accepted it without reservation but observed that it was essentially uncontroversial. It is unsurprising that they did not regard it as assisting the appellant's case on exceptional circumstances. As Sedley LJ said in Lee v SSHD [2011] EWCA Civ 348:

"The tragic consequence is that this family…………….will be broken up for ever because of the appellant's bad behaviour. That is what deportation does. Sometimes the balance between its justification and its consequences falls the other way, but when it does so is a question for [the Tribunal]."

32. The other main ground of appeal is that the UT failed to give "specific and focussed consideration" to the appellant's wife's medical condition. Mr Westgate accepts that the UT were expressly asked not to deal with the illness in detail in the judgment since the appellant's wife has kept it from her family. She has understandable difficulty in confiding in others on the subject and fears considerable social stigma if she were to accompany her husband to Tanzania.
33. In their skeleton argument Mr Westgate and Ms Meredith argue that:-

"The position of a disabled family member must be separately considered and deportation only ordered where the interference with their Convention rights is proportionate. This will depend on the circumstances of each case but where the needs of a disabled family member will not be met in the event of deportation then weighty reasons will be required before the deportation is proportionate. … The deportation also has a discriminatory effect on [the appellant's wife] in respect of her private life when taken together with Article 14. A's deportation has a more severe impact on [her] that would be the case if she was not disabled and as a direct result of her disability. It may be necessary to allow A to remain in order to ensure that despite her HIV status [she] may enjoy a quality of life on equal terms with her non-disabled peers."

34. HIV infection, cancer and multiple sclerosis are specifically listed in paragraph 6 of Schedule 1 to the Equality Act 2010: a person suffering from one of these conditions is disabled within the meaning of the statute whereas otherwise (to summarise some complicated provisions) a person is generally disabled for the purposes of the Act only if suffering from a condition which over a period of 12 months or more has a significant adverse effect on the individual's ability to carry out day to day activities. But there is no authority for saying that in a deportation case the fact that a spouse, partner or family member dependent on the prospective deportee is disabled within the meaning of the 2010 Act must be given separate consideration from other aspects of the balancing exercise. A foreign criminal sentenced to four years imprisonment or more is liable to be deported unless there are exceptional circumstances (in the 2012 text of the Rules), or very compelling reasons over and above the factors set out in Rules 398, 399 and 399A (in the 2014 version), which outweigh the public interest in deportation. That involves a balancing exercise of a kind which the Tribunal performed in the present case. If the deportee has caring responsibilities those may be put into the scale. If the caring responsibilities are towards a family member who is seriously ill then they are likely to carry greater weight than responsibilities towards a family member in relatively good health. But I do not think that the assessment by the tribunal of fact has to incorporate reference to the public sector equality duty under Section 149 of the Equality Act 2010, still less to the complex jurisprudence of the European Court of Human Rights on Article 14 of the Convention in cases such as Thlimmenos v Greece (2001) 31 EHRR 15.

Conclusion

35. For these reasons I do not accept that the UT made any error of law. If this court were to accept that there had been an error of law by the UT it would then be appropriate to take the decision ourselves. In that event, as Mr Westgate accepted, section 117C of the Nationality, Immigration and Asylum Act 2002, inserted by the Immigration Act 2014 with effect from 28 July 2014, would apply. This emphasises (yet again) the public interest in the deportation of foreign criminals and provides that even if one of the exceptions set out in the relevant Rules applies, an appellant can only succeed if he can demonstrate that there are "very compelling circumstances" over and above those described in the Rules. On the view I take of the UT's decision it is unnecessary to consider the extent, if any, to which this provision alters the effect of the 2012 Rules as interpreted by decisions of this court. Suffice it to say that I do not consider that there are any very compelling reasons (nor, for that matter, any exceptional circumstances) which would justify setting aside the deportation order in this appellant's case.
36. I would dismiss this appeal.

Lord Justice Lloyd Jones

37. I agree.

Lady Justice Rafferty

38. I also agree.