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 MOULDEN)

		Royal Courts of Justice Strand London, WC2A 2LL
		15th September 2015

1. LORD JUSTICE McCOMBE: The applicant in this case, whom I shall call throughout "the applicant", wishes to renew his application for permission to appeal to this court from the decision and order of the Upper Tribunal (Immigration and Asylum Chamber) of 14th November 2014, dismissing his appeal from an earlier decision of the old Asylum Immigration Tribunal.
2. The application to renew the application for permission to appeal to this court is in fact out of time. By an order of 11th May 2015, Vos LJ refused permission to appeal. That decision was apparently sent by document exchange to the applicant's representatives. However, the solicitor with charge of the case has given evidence to the effect that it was not received by his firm, and there is no reason to doubt his word about that. Accordingly, an application to renew the application for permission to appeal out of time was issued on 24th July of this year.
3. At that stage the applicant had been served with removal directions due to take effect on 28th July. In view of that pending application for the extension of time, on 27th July I made an order restraining the respondent Secretary of State from removing the applicant from the jurisdiction. I gave directions that, subject to the exigencies of the court list, the application should be heard during the current court vacation, and accordingly they have now come before me.
4. I have said sufficient already to indicate that this case involves the proposed removal from this country by way of deportation of a foreign national. The proposed appeal against the dismissal of the applicant's appeals challenges a deportation order made against him on 1st May 2008. That order in itself was made in replacement of a defective previous deportation order issued in the previous year.
5. The matter has a long and complicated procedural history, which includes one visit already to this court in 2010 which led to a re-determination of the applicant's case by the Upper Tribunal, which in turn led to the decision which is now the subject of the present proposed further appeal to this court.
6. The respondent's decision to deport the applicant was based upon the applicant's conviction in the Crown Court at Bournemouth on 3rd December 2004 of an offence of possession of controlled drugs of Class A with intent to supply. He was sentenced to six years' imprisonment. The applicant is in fact a Nigerian citizen.
7. I do not propose to dwell upon the facts underlying the delay in the renewal of the application for permission to appeal to this court following Vos LJ's decision in May of this year, it is more profitable to enquire whether the applicant has sufficiently made out, as he recognises he must, the criteria justifying the grant of permission to bring a second appeal. As the applicant's skeleton argument recognises, and indeed does Mr Chelvan who appears for him this morning, it is necessary for him to persuade me that the proposed appeal raises an important point of principle or practice or that there is some other compelling reason to grant permission for a second appeal.
8. My previous order of 27th July indicated that I found, on initial consideration of the papers, little merit in the substantive application. Mr Chelvan has, with great ability, invoked what I then indicated would be an opportunity to persuade this court that that initial view of the case might be wrong.
9. The Tribunal heard extensive evidence and argument directed to the point whether this proposed deportation of the applicant would infringe his rights under Article 8 of the European Convention on Human Rights. The factual foundation of that argument was based upon the lengthy and lawful presence of the applicant in this country since 1991, when he was I think 11 years old, together with the presence of his parents and some siblings, his past relationships with two ladies, the mothers of his two children, with whom he had some continuing contact, and a new relationship with another lady in this country.
10. The Tribunal gave, with respect to it, extensive consideration to the provisions of the Immigration Rules and of the rules imported by sections 117B and 117C of the Immigration Act 2014.
11. After consideration of the application of these provisions to the facts of this case, the Upper Tribunal decided that the applicant could not displace the very strong statutory statement of public interest in the deportation of foreign criminals that appears both in the rules and in the Act. However, the applicant now wishes to contend that the Upper Tribunal erred in his case in three respects, giving rise to important points of legal principle and/or giving rise to a compelling reason for the grant of permission for a second appeal. Quoting from the skeleton argument in support of the proposed appeal, those grounds are as follows. Ground 1:

i. "The current immigration rules and section 117C of the Nationality, Immigration Act 2002 are not a complete codification of Immigration Rules in deportation cases involving a settled migrant."

12. In particular, Mr Chelvan wishes to advance a point that the decision in the Tribunal below failed adequately to give proper regard to the considerations arising out of the well-known case of Maslov v Austria in 2009, and the materiality of that decision to decisions in relation to settled migrants considered in this court in the case of The Crown (on the application of Akpinar) v The Upper Tribunal [2015] 1 WLR 466.
13. Ground 2 is this:

i. "The Upper Tribunal misdirected itself with respect to finding that the Applicant's immigration status was precarious during the course of his genuine and subsisting relationship with his British partner."

14. That ground of appeal relates only to the applicant's relationship with his current partner, which was formed while he had indefinite leave to remain in this country but was the subject of attempts to deport him which had been subsisting since the making of the original deportation order in 2007.
15. Ground 3:

i. "The Upper Tribunal misdirected itself with respect to 'unduly harsh'."

16. The reference to "unduly harsh", of course, is a reference to one of the aspects in the statutory criteria governing questions such as this.
17. With some hesitation on my part, Mr Chelvan has persuaded me that his client ought to have permission to appeal on grounds 1 and 3. It seems to me just arguable that while this experienced tribunal applied the tests appearing in the statute and Immigration Rules, it may not have given adequate consideration to the inter-reaction of those statutory provisions with the Maslov case, and, of course quite understandably as its own decision was before it, the decision of this court in Akpinar, to which I have already referred.
18. I refuse leave to appeal on the question of whether this applicant's immigration status was precarious at the date of the forming of his new relationship with his current partner. In my judgment, whatever may have been the doubts expressed by the Upper Tribunal in the case of AM (Malawi) [2015] UKUT 0260 (IAC), I cannot conceive of anything more "precarious" in a person's immigration status, whatever his leave to remain may be, as a case where that person is subject of ongoing attempts by the Secretary of State to remove him or her for having committed criminal offences of the character with that this applicant has committed.
19. The case of AM quoted the guidance given by the Home Secretary in relation to Article 8 cases in matters of deportation to the following effect at paragraph 29, from the document entitled "Criminality Guidance in Article 8 ECHR cases":

i. "The Immigration Rules also requires that a relationship not be formed at a time when the foreign criminal has precarious immigration status because a claim to respect for family life formed when there was no guarantee that family life could continue indefinitely in the UK, or when there was no guarantee that if the person was convicted of an offence while he had limited leave he would qualify for further leave, will be less capable of outweighing the public interest. For the purposes of this guidance, a person's immigration status is precarious if he is in the UK with limited leave to enter or remain, or has settled status which was obtained fraudulently, or he has committed a criminal offence which he should have been aware would make him liable to removal for deportation."

20. In my judgment, that guidance is entirely accurate. There cannot be, in my view, a shadow of an argument that somebody who is subject to ongoing deportation proceedings is not in one of a precarious immigration status. Accordingly, I refuse without the slightest hesitation any point arising out of ground 2.
21. As I say, with some hesitation, I grant permission to appeal on grounds 1 and 3. I do so with some hesitation because, as I say, the experienced tribunal was well aware of the statutory tests and must have been well aware, as it displayed knowledge, of the case of Maslov. It perhaps however, unfortunately, arguably failed adequately to deal with that case and its inter-reaction with the statutory provisions in the case of a settled migrant. For those reasons, permission to appeal will be granted.
22. In view of the lengthy delays that have occurred in this case, some of which undoubtedly lie at the door of the Secretary of State and/or regrettably at the Tribunal or the court, this case should be given such expedition as the status of the lists allows. It must obviously be for others rather than me to decide what that expedition should be, but I consider it would be in the interests of all concerned that the appeal be heard as soon as reasonably possible.