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

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/11/2015

Sir Stanley Burnton:

Introduction

1. On 2 April 2013 the Secretary of State made a deportation order in respect of the Respondent, Michael Boyd, under section 32 (5) of the UK Borders Act 2007. The Respondent appealed against that order under the Nationality, Immigration and Asylum Act 2002 to the First-Tier Tribunal, on the ground that his removal would infringe his rights under Article 8 of the European Convention of Human Rights. The First-Tier Tribunal allowed his appeal. The Secretary of State appealed to the Upper Tribunal, which dismissed her appeal. This is the Secretary of State's appeal against the determination of the Upper Tribunal. She brought this appeal by leave of the single judge, who extended her time to appeal.
2. At the conclusion of the hearing, the Court announced its decision to allow the appeal, with result that the deportation order stands.
3. This judgment sets out my reasons for allowing the appeal.

The facts

4. The Respondent is a citizen of Jamaica. He arrived in this country on 25 December 1999. He was given leave to enter as a visitor for a period of six months. He was then aged 11 years. In 2000, his mother made an application on his behalf for a grant of indefinite leave to remain as her dependant. The application was refused in January 2003 and a subsequent appeal was dismissed on 25 March 2005. His appeal rights became exhausted in April 2005. His father, Michael Boyd Senior, had been deported to Jamaica on 3 May 2001 following involvement in criminal conduct, including drug importation.
5. On 31 August 2007, the Respondent was convicted of common assault and sentenced to 3 months' detention in a Young Offenders' Institute. In July 2008, he was convicted of two counts of possessing a Class C controlled drug (cannabis) and one count of possessing a Class A controlled drug (cocaine). He was fined. In September 2008 he was again convicted of possession of cannabis and cocaine, and again fined. On 21 October 2010 the Respondent pleaded guilty at Wood Green Crown Court to an offence of wounding with intent. A sentence of imprisonment for 30 months was imposed. The Judge stated in his sentencing remarks:

"On 15^th May you got into an argument with the complainant… The basis of your argument was that you and your partner had rented a room in his house for some six or seven weeks, difficulties had arisen and he had asked you, as was entitled to do, to leave. He had indicated when the deposit was to be returned to you, namely when you left, and you seem to take exception to that.

What started as a verbal argument in the house in front of others escalated outside. The complainant had left to distance himself from what was going on and it was at that point you went back to your room and deliberately armed yourself with what has been described either as a long knife or a machete. You came out of that house and attacked [the complainant], striking him once to the head without machete or knife. You caused a very serious injury to the head.

The Dr's report shows that the laceration was 15 cm x 3 cm, had cut through all the layers of the skin and caused minor tiny flake fractures of the scalp, of the skull, and had caused arterial damage which was why those treating him found it so difficult to stop the bleeding. There have been complications since and he has been left with a highly visible and permanent T-shaped scar on his head and the psychological consequences of what you did.

Mr Boyd, you've pleaded guilty to a single count of section 20 wounding. You have entered that plea on the morning of your trial knowing the complainant and other witnesses had already attended court."

6. By reason of his conviction for unlawful wounding with intent and his sentence of imprisonment, the Respondent was subject to automatic deportation under section 32 of the UK Borders Act 2007 unless there was an applicable exception under section 33.
7. On 16 December 2010 the Respondent was served with notice of liability to deportation. He then claimed asylum, and that his return to Jamaica would infringe his rights under Articles 2, 3 and 8 of the Convention. By letter dated 5 April 2013, the Secretary of State rejected all his claims. He appealed to the First-tier Tribunal. At the hearing before the First-tier Tribunal, he did not pursue his appeal against the rejection of his claim for asylum, or that under Articles 2 and 3, but restricted his appeal to his claim under Article 8.

The decision of the First-tier Tribunal

8. The Respondent is not living with any partner, and has no children. The First-tier Tribunal set out its reasons for allowing his appeal in paragraphs 53 to 61 of its determination:

"53. By the terms of the Human Rights Act 1998 the public authorities bound to maintain the obligations of this country with respect to those aspects of the European Convention which were incorporated into domestic law. We do of course acknowledge that certain amendments have been made to the Immigration Rules, with effect from 9 July 2012, to bring into the Rules certain provisions directly relating to Article 8 of the European Convention. In that respect paragraph 398 applies to the circumstances of the Appellant, as he received a period of imprisonment of two years and six months. For those reasons paragraphs 399 and 399A of the Immigration Rules do not here apply.

55. Having considered all aspects of this appeal it is a finding of this Tribunal that the Deportation Order does constitute an unlawful breach of the Appellant's Article 8 rights under the European Convention. We now set out our reasons, further to the indication as to the outcome of this appeal which we gave following an adjournment at the end of the hearing.

55. We confirm that we took into account all evidence placed before us, including documentation, which we have detailed above. As summarised above we heard evidence from the Appellant and from four supporting witnesses. Clear submissions were made by both representatives. We have been assisted by the skeleton argument provided by Mr Rene. Of course we have paid careful and particular account to the terms of the Respondent's deportation decision letter which set out the reasons why the Respondent considered that it was appropriate to make a Deportation Order. We also take into account, following the views expressed by the Upper Tribunal in MF Nigeria [2012] UKUT 393 (IAC), that full consideration of the European Convention must take place, with this Tribunal required to undertake a two-stage approach to appeals which include grounds relating to Article 8 of the European Convention but where, nevertheless, amendments are stated to have been made to the Immigration Rules in order to reflect the requirements of the Convention. We have also taken particular account of the decision of the Upper Tribunal in Ogundimu Nigeria (above) which of course refers to other caselaw, including decisions of the European Court of Human Rights, including Masolv v Austria [2008] ECHR 546.

56. We find a number of circumstances to be significant in this appeal. In reaching the decision which we did we considered those factors on a cumulative basis in undertaking the required balancing exercise to assess Article 8 issues. We found there to be no basis to doubt the truth of the evidence given by any witness who appeared before us, including the Appellant. Indeed, the Appellant was particularly frank in admitting to us that he had used cannabis in the relatively recent past, although he expressed that as having been as a result of experiencing stress. We find that the Appellant has a very supportive family. It is very significant that he has been in this country for the length of period which he has. The factual detail in that respect is referred to above. We appreciate that he did not have the benefit of immigration leave but nevertheless we find that because the Appellant has been here since the age of 12 years, his period of time spent in this country is given weight. He has been away from Jamaica since he first came to the United Kingdom. That is a very long period indeed. Although we accept that family life rights could not be considered as engaged for the purposes of Article 8(1) of the European Convention, there being no particular dependence by the Appellant on adult family members in this country, private life rights are most certainly strongly engaged.

57. The stages set out in Razgar must be followed. We find that the potential removal of the Appellant to Jamaica would have consequences of sufficient gravity to engage Article 8 rights. His private life is well-developed in this country. The threshold is relatively low. Of course for an interference with engaged Article 8 rights to be lawful, the same must be necessary in a democratic society. For that to be so the decision and the consequences must be proportionate to the legitimate and lawful aim of the Respondent in discharging her duty with respect to ensuring an appropriate system of immigration control. Accordingly the ultimate test is whether, on the facts, the same is proportionate in all the circumstances. Of course we take into account issues involving public interest and the economic interests of society.

58. The Appellant was very frank in indicating clearly that he sought professional help in relation to issues concerning his temper and his behaviour generally. Although a full programme has not been available to him thus far, we note that he has been successful in not having any adverse encounters with the authorities in this country since he was released from prison. We also found it a reasonable point that was made on his behalf that if the Respondent had seriously considered the Appellant to be a significant threat to society, then action would have been taken much earlier to make the Deportation Order. The time between the notification of an intention to consider making an Order and the making and service of the Order was significant. We do find that on the evidence the Appellant has changed his attitude with respect to his own behaviour and to society generally. We accept that he would benefit from further professional assistance in that regard. Miss Rowe referred to that in her evidence. We give weight in particular to what she said. She has clear professional experience within the field. We take note of the evidence given by the three other supporting witnesses. We were particularly impressed by the evidence of the Appellant's sister, Leonie Boyd. We found that she spoke with sincerity and that she gave a very clear assessment of a number of issues relating to the Appellant's behaviour in the past and the future facing the Appellant.

59. It is highly pertinent that the Appellant has not found himself in trouble with the authorities since his release. We also have a degree of confidence that the Appellant, with the opportunity of further support, appreciates that he does not need to resort to the use of what is sometimes referred to as recreational drugs in order to secure his future. In that respect we believe that if the Appellant is entitled to remain in this country he will be significantly assisted by not having to face the fear of returning to Jamaica, a country which he left when he was 12 years old. We also accept that he has no close family in that country whose assistance he could gain and we accept the overall objective evidence which indicates a high level of violence in Jamaica. We accept the evidence given by witnesses that those individuals who are of Jamaican nationality who return - or are returned compulsory - to Jamaica would be particularly of interest to rogue elements in Jamaica. Such an individual would stand out and it is clear from the evidence that regrettably the forces of law in order in Jamaica are unable to protect every individual who might find himself vulnerable. Due to the time the Appellant has spent in this country we also find that the ties which he has are clearly established in his life now are in this country rather than in Jamaica. He could not enjoy or exercise his private life rights in Jamaica as he can do so here.

60. We took into account that the Appellant took advantage of courses which were open to him whilst he served his custodial sentence and we believe that that attitude also shows the Appellant to have appropriate motivation. We have taken account of the reference letters which are supportive of him and which were presented to us. Indeed, his approach has been confirmed by the Probation Service documents which are within the Appellant's bundle. He is also engaged in some voluntary work, which is to his credit. We find it to be particularly significant that he has very clearly the support of loyal and genuine family members and friends, many of whom were present throughout the hearing of this appeal. We find that support and friendship to be sincere and we give it weight in terms of assessing overall those factors to be taken into account in our consideration of proportionality.

61. A phrase was used by the Appellant's sister, namely the request that the Appellant be given "one more chance". In undertaking our assessment of proportionality we found that on the balance of probabilities the Appellant should be entitled to remain in the United Kingdom on the basis that his removal would unlawfully breach his engaged private life rights. Were our views in that respect in error, we find that the circumstances placed before us in this appeal should be found to be exceptional and in taking into account the public interest generally in deportation, we would find the same to be outweighed by the circumstances before us, with reference to paragraph 397 of HC395."

The determination of the Upper Tribunal

9. The Secretary of State appealed with permission of the First-tier Tribunal. The Upper Tribunal's determination is dated 15 November 2013 and is relatively brief. The Upper Tribunal Judge stated:

"16. The panel set out its reasoning in paragraphs 50 to 61. All the factors which assist the claimant are set out. I need to consider whether the factors which go to the public interest in deportation have been equally or at least sufficiently considered."

17. The principle that the private and/or family life rights of the claimant need to outweigh the public interest in seeing him deported is referred to in paragraph 52. In paragraph 55 the panel said; "we have paid careful and particular account to the terms of the respondent's deportation decision letter which set out the reasons why the respondent considered that it was appropriate to make a deportation order." The relevant part of the decision letter refers to the legitimate aims of preventing disorder and crime and maintaining an effective immigration control, the public good and public interest which would be served by the removal of the claimant, the nature and seriousness of the offence which the Secretary of State regarded as serious and compelled her to give significant weight to the question of protecting society against crime.

18. In paragraph 57 the panel said; "the decision and the consequences must be proportionate to the legitimate and lawful aim of the respondent in discharging her duty with respect to ensuring an appropriate system of immigration control. Accordingly the ultimate test is whether, on the facts, the same is proportionate in all the circumstances. Of course we take into account issues involving public interest and the economic interests of society."

19. It would have been better if the panel had spelt out the factors relevant to the public interest in terms and not by reference but I find that in a clear and detailed determination the panel did pay sufficient regard to the factors going to the public interest. The panel considered and did more than pay lip service to the public interest factors which the Secretary of State had set out.

20. The panel referred to MF (Article 8 - new rules) Nigeria [20121 UKUT 393 (IAC) (31 October 2012) and followed a two-stage process in considering Article 8 under the Immigration Rules and the Strasbourg jurisprudence. Since the hearing before the panel. The Court of Appeal have now heard the appeal in MF (Nigeria) and concluded that a two-stage process is not required, although a one stage or a two-stage process are not likely to lead to different conclusions. MF (Nigeria) in the Court of Appeal has since been revisited by the Upper Tribunal in Kabia (MR para 298 - "exceptional circumstances") 2013 UKUT 00569 (IAC1. This was not before me or addressed at the hearing but I consider that it makes no material change 'to the guidance contained in MF (Nigeria) in the Court of Appeal.

21. 1 find that the panel did have proper regard to the Immigration Rules in making the Article 8 assessment. This is apparent from paragraph 53 of the determination and the reference to paragraph 397 of the Immigration Rules in paragraph 61 which contains the same exceptional circumstances test as paragraph 398(c).

22. I find that the panel did not err in its consideration of the effect of delay by the Secretary of State and that the criticisms of the panel's reasoning in the second ground of appeal are no more than disagreements with findings properly made. They do not identify any error of law."

10. The Upper Tribunal Judge cited paragraphs 43 to 45 of the judgment of this Court in MF (Nigeria) and continued:

"24. In paragraph 61, albeit as an alternative conclusion, the panel found that the claimant's circumstances were exceptional and outweighed the public interest in deportation. Taken in context I find that the exceptionality test which the panel applied was not materially different to the test of very compelling reasons which the Court of Appeal equated to exceptional circumstances. The conclusion was generous but one open to the panel on the all the evidence. I find that the panel did not err in law and I uphold the determination."

The subsequent procedure

11. By letter dated 18 December 2013 the Secretary of State applied to the Upper Tribunal for permission to appeal to this Court. Her application was refused in an order dated 16 January 2014 notified to the Secretary of State and the Respondent by letter dated 21 January 2014.
12. Nonetheless, it was not until 3 October 2014 that the Secretary of State filed her notice seeking permission to appeal out of time against the determination of the Upper Tribunal. This was over 7 months out of time. The Secretary of State's skeleton argument in support of her application for permission to appeal did not give any reason for the delay, or seek to justify it. She applied for the necessary long extension of time on the ground, essentially, that the appeal was meritorious. Furthermore, the skeleton did not identify any point of principle or practice that the Secretary of State contended was important or any other compelling reason for the appeal to be heard.
13. On 12 January 2015 Gloster LJ considered the Secretary of State's application on the papers and extended the Secretary of State's time and granted permission to appeal. She considered that there were arguably important points of principle or practice engaged by the appeal.
14. The Secretary of State contended that the First-tier Tribunal and the Upper Tribunal had either failed to take the public interest in the Respondent's deportation properly into account and had failed to give adequate reasons for their decisions.
15. The Respondent's skeleton argument, dated 26 February 2015, asked this Court not to extend time and to uphold the decisions of the First-tier Tribunal and Upper Tribunal, on the ground that they had properly taken the public interest into account, and this Court could not interfere with a decision that was open to them.

The issues in this Court

16. There were thus two principal issues before this Court:

i) Should the extension of time to appeal granted to the Secretary of State, and the grant of permission to appeal, be set aside?

ii) If not, was the decision of the Upper Tribunal one that was open to it?

Time

17. Both sides were guilty of wholesale failures to comply with the requirements of the CPR. The Court has made it clear that the Rules are to be complied with, and parties cannot expect failures to comply with time limits or other procedural requirements not to be strictly enforced. That is particularly important given the increased pressures on the time of the Court of Appeal and the unnecessary Court time taken in dealing with procedural failures. Furthermore, the strictness with which procedural requirements must be complied with is as applicable to governmental authorities as to private parties: R (Hysaj) v Home Secretary [2015] 1 WLR 2472 [2014] EWCA Civ 1633 at paragraph 425.
18. CPR 52.4 requires an appellant's notice to be served on each respondent as soon as practicable, and in any event not later than 7 days after it is filed with the Court. Mr Rene, on behalf of the Respondent, did not suggest that the Secretary of State had not complied with this requirement, and I note that the Secretary of State's notice included the name of the Respondent's solicitors.
19. The Practice Direction to CPR 52 provides, at 52CPD.4:

"(1) Where the time for filing an appellant's notice has expired, the appellant must –

(a) file the appellant's notice; and

(b) include in that appellant's notice an application for an extension of time.

(2) The appellant's notice must state the reason for the delay and the steps taken prior to the application being made.

(3) Where the appellant's notice includes an application for an extension of time and permission to appeal has been given or is not required, the respondent has the right to oppose that application and to be heard at any hearing of that application. In respect of any application to extend time –

(a) The respondent must–

(i) be served with a copy of any evidence filed in support of the application; and

(ii) inform the court in writing of any objections to the grant of the extension of time within 7 days of being served with the appellant's notice.

(b) A respondent who unreasonably opposes an application for an extension of time may be ordered to pay the costs of the application.

(c) An application for an extension of time will normally be determined without a hearing unless the court directs otherwise."

It is important to note that paragraphs (3)(a)(i) and (ii) apply whether or not permission to appeal has already been given or is not required.

20. The Secretary of State's notice did not comply with paragraph (2) of the Practice Direction. Conversely, the Respondent did not comply with paragraph (3)(a)(ii): no representations were made to the Court of Appeal on behalf of the Respondent as to why the Secretary of State's time to appeal should not be extended. If the Respondent had informed the Court of his objection, it is more than possible that the extension of time would have been refused, given the lack of any excuse for the delay and its very substantial duration. As it is, Gloster LJ may have proceeded on the assumption that there was no objection to the extension of time sought by the Secretary of State.
21. Following the grant of permission to appeal, no application to set it aside was issued on behalf of the Respondent. If it had been, CPR 52.9 would have applied to the application. So far as is material, it is as follows:

"(1) The appeal court may –

(a) strike out the whole or part of an appeal notice;

(b) set aside permission to appeal in whole or in part;

(c) impose or vary conditions upon which an appeal may be brought.

(2) The court will only exercise its powers under paragraph (1) where there is a compelling reason for doing so."

22. No application under CPR 52.9 was made on behalf of the Respondent. If it had been, it is at least possible that the Court would have determined it as a preliminary issue in a short hearing. Instead, the grant of the extension of time was only challenged in the skeleton argument for the Respondent. The result was that the issue raised by the Respondent and the Secretary of State's substantive appeal came before the Court together, with a hearing day set aside for the hearing. If the Court had permitted the application to set aside the permission to appeal to be made in this way, and it had succeeded, most of that hearing day would have been wasted.
23. Mr Rene also sought to have the permission to appeal set aside on the ground that the Secretary of State had failed to identify any important point of principle or practice or other compelling reason for permission to be granted for a second appeal. In this respect the Secretary of State had failed to comply with 52CPD.5A. However, this ground of the Respondent's application failed to satisfy the requirement of a compelling reason to set aside the permission to appeal.
24. Ultimately, the Court refused to set aside the order of Gloster LJ because of the failure of the Respondent to object to the Secretary of State's applications before she made her order and his failure to issue an application for an order under CPR 52.9 timeously or at all, and in any event he failed to show a compelling reason for setting aside either the extension of time or the grant of permission to appeal.

The substantive appeal

25. I have set out at length the reasons given by the First-tier Tribunal and the Upper Tribunal because I frankly find them deficient. I have to say that I entirely fail to see how the determination of the First-tier Tribunal or that of the Upper Tribunal can be supported. This was a very clear case for upholding the deportation order. The offence committed by the Respondent was extremely serious. He had been in this country for a considerable time, but his presence was unlawful, which means that little weight can be attached to it. He had no child or partner, and therefore no nuclear family life to take into account. The Respondent had not committed any offence since his release from prison, but the period since his release was not substantial, and the risk of further offending is only one of the factors to be considered by the Secretary of State and the Tribunals on appeal. The First-tier Tribunal seems simply to have weighed the interests of the Respondent against the decision of the Secretary of State, with no appreciation of the important public interest in the deportation of a serious criminal. It regarded the circumstances of the Respondent as exceptional, but Mr Rene was unable to identify any factor in his case that could be regarded as exceptional, and there is no such factor. For this reason, the Upper Tribunal erred in finding that the First-tier Tribunal had correctly applied either an exceptionality test or that there were very compelling reasons for him to be allowed to remain in this country.
26. My above remarks would apply to a case that preceded the introduction of paragraphs 398 to 399B of the Immigration Rules. However, these provisions did apply to the decision of the Secretary of State in relation to the Respondent, and were referred to by the First-tier Tribunal. In Secretary of State for the Home Department v AJ (Angola) and AJ (Gambia) [2014] EWCA Civ 1636, Sales LJ set out those Rules at paragraph 9. Having referred to the judgment of this Court in MF Nigeria [2013] EWCA Civ 1192; [2014] 1 WLR 544, Sales LJ said, in a judgment with which the other members of the Court agreed:

"39. The fact that the new rules are intended to operate as a comprehensive code is significant, because it means that an official or a tribunal should seek to take account of any Convention rights of an appellant through the lens of the new rules themselves, rather than looking to apply Convention rights for themselves in a free-standing way outside the new rules. This feature of the new rules makes the decision-making framework in relation to foreign criminals different from that in relation to other parts of the Immigration Rules, where the Secretary of State retains a general discretion outside the Rules in exercise of which, in some circumstances, decisions may need to be made in order to accommodate certain claims for leave to remain on the basis of Convention rights, as explained in Huang and R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin).

40. The requirement that claims by appellants who are foreign criminals for leave to remain, based on the Convention rights of themselves or their partners, relations or children, should be assessed under the new rules and through their lens is important, as the Court of Appeal in MF (Nigeria) has emphasised. It seeks to ensure uniformity of approach between different officials, tribunals and courts who have to assess such claims, in the interests of fair and equal treatment of different appellants with similar cases on the facts. In this regard, the new rules also serve as a safeguard in relation to rights of appellants under Article 14 to equal treatment within the scope of Article 8. The requirement of assessment through the lens of the new rules also seeks to ensure that decisions are made in a way that is properly informed by the considerable weight to be given to the public interest in deportation of foreign criminals, as declared by Parliament in the 2007 Act and reinforced by the Secretary of State (as the relevant Minister with responsibility for operation of the immigration system), so as to promote public confidence in that system in this sensitive area.

In LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310, this Court again emphasised the points made in both SS (Nigeria) and MF (Nigeria). It dismissed an appeal from the Upper Tribunal, which had allowed an appeal from the FTT. This Court held that the FTT in that case "clearly erred" in its understanding and application of the new rules, by considering the case of a foreign criminal based on Convention rights outside the new rules (see para. [14]), just as the Upper Tribunal has done in both the cases before us. As in the cases before us, the error had occurred because the decision of the FTT had been made before the judgment of this Court in MF (Nigeria) was handed down. At para. [17], Moore-Bick LJ (giving the leading judgment) said this:

"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.""

27. More recently, in MA (Somalia) [2015] EWCA Civ 48, Richards LJ said:

"17. It follows from MF (Nigeria) that MA's case should have been considered only within the Immigration Rules and on the basis that the scales are heavily weighted in favour of deportation and that something very compelling is required to outweigh the public interest in deportation."

28. Neither the First-tier Tribunal nor the Upper Tribunal gave to the public interest in the deportation of the Respondent "the great weight" that was required.
29. It followed that the Secretary of State's appeal had to be allowed. It was not suggested that any new factor had arisen since the determination of the Upper Tribunal that might lead to the Respondent's appeal being upheld if it were remitted to the Tribunal. Accordingly, in my judgment the deportation order had to stand and take effect.

Lord Justice Briggs:

30. I agree.

Lord Justice Elias

31. I too agree.