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)
DA004492013

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/03/2015

Sir Stanley Burnton:

Introduction

1. This is the appeal of PF, a citizen of Nigeria, against the determination of the Upper Tribunal (Immigration and Asylum Chamber) (the President and Upper Tribunal Judge King) allowing the Secretary of State's appeal against the decision of the First-tier Tribunal allowing PF's appeal against the Secretary of State's decision to deport him. The Upper Tribunal remitted the appeal for re-hearing before a differently constituted panel of the First-tier Tribunal.
2. Having heard Mr Bonavero's submissions on behalf of the Appellant, we announced our decision to dismiss the appeal for reasons to be given in our written judgments to be handed down later. These are my reasons for dismissing the appeal.

The facts

3. The Appellant is aged 38. He came to this country in 1990 on a visitor's visa, and remained after the expiry of his leave. He was in this country unlawfully from February 1991 until 20 March 2000, when he was granted indefinite leave to remain.
4. In 1996 PF was convicted of a number of minor offences. In 1997 he was convicted of possession of a Class A controlled drug with intent to supply and sentenced to 4 years' detention in a Young Offenders' Institute. In March 2002 he was convicted of using threatening, abusive or insulting words or behaviour with intent to cause fear of, or to provoke, violence. He was given a conditional discharge. More seriously, in November 2002 he was convicted of possession of ammunition without a certificate, for which he was sentenced to 30 months' imprisonment. He was also convicted of simple possession of cannabis, a class B drug, for which he was sentenced to one month's imprisonment to be served concurrently. In May 2010 he was convicted of two counts of conspiracy to supply a Class A controlled drug, namely heroin. In September 2010 a sentence of 5 years and 8 months' imprisonment was imposed for those offences. In sentencing him, the Judge said:

You pleaded guilty at an early stage of these proceedings to count 1 of conspiracy to supply heroin in April 2009 and count 4, conspiracy to supply heroin in September 2009. Your basis of plea accepts that you are in a managerial role in respect of street dealing. In April 2009 you used an address in Hackney for the storage of heroin and money. You were directing X in the supply of heroin. He was arrested with two packs of heroin and he had a storage facility with four packages of heroin. In September together with Y you used a different address in Holloway as storage for heroin and money. You again were directing the street supply of diamorphine, again attempting … to stay in the background and to avoid detection by the police. Of those which you engaged … was caught with a large amount of cash and some 121 grams of diamorphine on him.

….

Because of your previous convictions and because of your role I am determined that the appropriate starting point would have been at the very top end of the range…, namely one of 8 years. Because of your plea of guilty I am able to reduce that by the full 30%. 30% off 8 years means a sentence of five years and eight months' imprisonment.

5. The Appellant suffers from sickle-cell anaemia. His mother, four sisters, two brothers and nieces and nephews are resident in the United Kingdom. He claims to be in a genuine and subsisting relationship with MP. She has one child from a previous relationship. The Appellant's daughter A was born on 7 May 1996 to a different mother, MF, and gave evidence at the hearing before the First-tier Tribunal. His second daughter was born in February 2007. There is a stepson, who suffers from attention deficit hyperactivity disorder.
6. Before the First-tier Tribunal, there were positive reports from the Appellant's Offender Manager. In her report dated 12 October 2012 she assessed him at low risk of harm to the public and low risk of reoffending. That assessment was repeated in her report dated 6 June 2013, in which she said:

I can confirm that [the Appellant's] compliance with his licence has been most satisfactory. As part of his sentence plan objectives [the Appellant] has engaged with the Probation Education Training and Employment officer and has gained a place on a mentoring training programme with Catch 22 as [the Appellant] has expressed a keenness to steer ex-offenders to lead pro-social lives using his own experiences as a valid testimony.

In addition [the Appellant] is attending Newham College on a part time basis where he is studying business management.

… Since the commencement of his licence, he has not been charged with further offending and has expressed a determination to become a law abiding citizen. I am in support of [the Appellant] to remain in the UK to enable him to continue with his rehabilitation.

The determination of the First-tier Tribunal

7. The Appellant's appeal against deportation was heard by a panel consisting of First-tier Tribunal Judge Herbert OBE and Mr G H Getlevog as non-legal member. They heard evidence from the Appellant, MF, MP and, as mentioned above, his daughter A. The only issue before them was whether the Appellant's deportation would breach his rights under Article 8 of the European Convention on Human Rights, and those of his family.
8. The Tribunal's determination disclosed fundamental differences between the members of the panel. Both members of the panel accepted that the Appellant had a private and family life in this country. Apart from that, they disagreed on all the material issues. In particular, Mr Getlevog did not accept as credible that the Appellant has changed his lifestyle and character to the extent that he no longer posed a risk of reoffending. On the other hand, Judge Herbert accepted that he had been or was in the process of being rehabilitated, and that he posed a low risk of reoffending. Mr Getlevog "was quite clear that he did not view the Appellant as having a significant private and family life to the extent that it could possibly be regarded as exceptional or override the presumption in favour of deportation". He was not satisfied of the subsisting nature of the Appellant's relationship with MP. Judge Herbert's view was that the Appellant "did have a purposeful and beneficial relationship with his younger children, and MF confirmed that he played an important part in the life of his eldest daughter".
9. Paragraphs 91 to 94 of the determination of the First-tier Tribunal are as follows:

91. Whilst I fully accept there is evidence upon which a decision could be made in what is a finely balanced decision to uphold deportation order, I find that on the peculiar facts of this case there are sufficient signs that the Appellant is sincere about setting his case against his previous criminal conduct that he has effectively been in the United Kingdom for a significant period of time, over 20 years, and that the detrimental effect on his children and partner outweigh the benefit to the public of him being removed from the jurisdiction.

92. I disagree with Mr Getlevog on the fundamental assessment that removing this Appellant in the midst of ongoing rehabilitation serves the public good and that the public good is served by the effective destruction of this family. The destruction of the family may not have an immediate consequence to society but they will almost certainly be a cost in the long term. A fundamental principle sentencing is the basic recognition that rehabilitation is an intrinsic part of sentencing. The deportation of this appellant would effectively remove that aspect of sentencing has been subordinate to the overwhelming need to prevent disorder and crime. My view is that this appellant has shown sufficient signs of rehabilitation to demonstrate that his removal is not necessary to maintain deterrent sentencing or show public revulsion for the crimes he has committed. Rehabilitation is an equally and some would argue more effective tool to combat crime.

93. The desire for rehabilitation is of a fundamental principle sentencing which also if one is looking at deterrence and public revulsion as a prime mover behind immigration policy than the public interest also recognises the potential for rehabilitation that exists in every criminal, no matter how serious the crime that they have committed. Given the balancing act and the fundamental difference of opinion I conclude that my decision as Immigration Judge prevails given my assessment and interpretation of the law.

Conclusion

94. I therefore allow this appeal for the reasons stated above under [Article] 8 as I find that the appellant's removal would place the United Kingdom in breach of its international obligations.

Events between the determination of the First-tier Tribunal and the substantive hearing before the Upper Tribunal

10. The determination of the First-tier Tribunal was promulgated on 10 July 2013. On 17 July 2013 the Secretary of State applied for permission to appeal to the Upper Tribunal. On 19 August 2013 the application was refused by a Judge of the First-tier Tribunal. On 23 August 2013, notice of that decision was sent to the Secretary of State and the Appellant's solicitors. On 3 September 2013, the Secretary of State renewed before the Upper Tribunal her application for permission to appeal. Neither the Appellant nor his solicitors were notified of the fact that the application had been renewed.
11. Events thereafter reflect abject incompetence within the Home Office, with the right hand wholly ignorant of the actions of the left hand. Notwithstanding the decision to seek to appeal the determination of the First-tier Tribunal, on 9 September 2013 the Home Office Criminal Case Work Directorate (Liverpool) sent the following letter to the Appellant's solicitors:

In light of your client's allowed appeal of 10 July 2013 against his deportation, he will be granted Limited Leave to Remain in the UK. This leave will be issued on a Biometric Residence Permit. I would be grateful if you could advise your client of the following:

This letter is not evidence of your leave to remain in the United Kingdom, of right to work or of entitlement to benefits.

You are required to enrol biometric information (scanned fingerprints and photograph) in order to obtain a Biometric Residence Permit…

The Biometric Residence Permit is the official document issued by the UK Border Agency to confirm your immigration status in the United Kingdom. Please complete the enclosed application form .…

Details of how to enrol your client's biometric information will be sent to you once we receive your client's completed forms.

12. On 13 September 2013, Upper Tribunal Judge Warr acceded to the Secretary of State's renewed application for permission to appeal. A formal notice of decision was issued to both parties on that date.
13. On 17 September 2013, the Appellant's solicitors posted the completed application for a Biometric Residence Permit to UKBA. On the same date, the Home Office instructed Serco to remove the Appellant's electronic tagging device "due to him winning his appeal" and instructed the relevant Reporting Centre to cancel reporting events as "He is no longer required to report as he has now won his appeal".
14. On 18 September 2013 the Home Office Criminal Casework Directorate wrote at length to the Appellant's solicitors:

Please convey the contents of this letter to your client. This letter entitles the applicant to a fee-free biometric enrolment at the Post Office Limited.

Dear Mr F,

As part of your process for granting you leave you must have your biometric information (scanned fingerprints and photographs) taken. This letter in itself confers no leave to enter or remain in the United Kingdom and does not constitute proof of your immigration status …

Even though the Home Office has agreed to grant you leave to remain in the United Kingdom, it is only the Biometric Information Residence Permit that constitutes proof of your immigration status in the United Kingdom and this permit cannot be issued until you have enrolled your biometric information …

… It is only the Biometric Residents Permit that constitutes proof of your immigration status in the United Kingdom.

15. Also on 18 September 2013, the Appellant's solicitors telephoned the Secretary of State's Special Appeals Team. The record of the call confirms that the Upper Tribunal's grant of permission to appeal had been received by his solicitors. It notes:

Things got as far as the Respondent having his electronic tag removed and the Home Office writing to the Respondent to inform him we would be granting him Limited leave. It is clear that an admin error cropped up with SAT [Specialist Appeals Team] and CCD [Criminal Casework Directorate] not communicating effectively.

The Appellant's legal representative was informed that the appeal would be pursued.

16. On 2 October 2013, the Appellant's solicitors forwarded their appeal hearing bundle to the Secretary of State's representative.
17. On 8 October 2013, the Appellant and his solicitors were informed in writing that the cancellation of the bail conditions had occurred in error and that these would be reintroduced with effect from 14 October 2013.
18. At some date, apparently after 18 September 2013, the Appellant presented himself at a Post Office, where his biometrics were duly registered. However, no Biometric Residence Permit was issued to the Appellant.
19. The Secretary of State's appeal was listed for hearing before a panel of two Upper Tribunal Judges on 20 November 2013. It was on this occasion that the Tribunal raised the question whether the Appellant had a legitimate expectation that he would be granted leave to remain, and that the appeal would not be pursued. That contention had not been raised by the Appellant. In any event, however, the Secretary of State was not ready to proceed. An adjournment was requested, and granted, on the basis that time was needed to enable the Secretary of State to check the authenticity of the letter dated 9 September 2013 sent on her behalf. In paragraph 6 of the determination under appeal to this Court, the Upper Tribunal commented:

That this was highly unsatisfactory per se is beyond plausible argument. To this we must add the comment that it is truly remarkable that the Secretary of State's representative, against the background documented above, was unable to confirm the authenticity of the Secretary of State's letter of 9 September 2013 and, evidently, doubted its authenticity to the extent that the hearing had to be adjourned. From every perspective, this was frankly astonishing. Furthermore, it gave rise to a period of pre-eminently avoidable delay and a grave waste of Tribunal time and public resources. This must be deprecated in the strongest terms.

I entirely agree.

20. On 22 November 2013 the Secretary of State wrote to the Appellant's solicitors, apologising for the earlier errors and inaccuracies. Her letter stated that the earlier letters of 9 and 18 September 2013 were "issued in error due to an administrative oversight" by reason of "a misinterpretation of information received from the Home Office's Specialist Appeals Team". It continued:

I apologise for the administrative errors that have occurred in your client's case and for any inconvenience and misunderstanding that has been caused. At present the Home Office will await the outcome of the proceedings at the Upper Tier Tribunal before making a decision on how to proceed in your client's case. Again I apologise for the error …

21. At the reconvened appeal hearing on 7 January 2014 the Secretary of State was still not properly prepared. The Upper Tribunal rightly condemned this in paragraph 7 of the determination.

The Upper Tribunal's determination

22. Two preliminary issues were raised before the Upper Tribunal:

(1) Whether the Secretary of State's appeal to the Upper Tribunal was deemed to have been abandoned.

(2) Whether to permit the appeal to proceed would unlawfully frustrate a substantive legitimate expectation on the part of the Appellant generated by the conduct of the Secretary of State's agents following the determination of the First-tier Tribunal.

23. The Upper Tribunal held that the Secretary of State had not abandoned her appeal. Mr Bonavero, on behalf of the Appellant, has not challenged this conclusion, and I need say no more about it.
24. On the issue of legitimate expectation, the Upper Tribunal rightly held that there had been clear and unequivocal representations to the Appellant that he would be granted leave to remain, which would be inconsistent with the Secretary of State pursuing her appeal. Nonetheless, it held that she was not precluded from acting inconsistently with those representations. The Tribunal stated:

17. As a matter of fact, the Secretary of State subsequently reneged on the representation made. The promise, or assurance, was withdrawn. This gives rise to an interface between the personal interest of the [Appellant] and the public interest. Our second main conclusion is that, in the particular matrix of this appeal, the public interest must prevail. This conclusion has several elements. The first is that the representation made was the product of pure, genuine error: the Secretary of State's left-hand did not know what the right is doing. Secondly, the [Appellant] gained a sheer, undeserved windfall in consequence. Thirdly, the representation was withdrawn speedily: its lifespan was confined to approximately one month. Fourthly, the representation was made in circumstances where the Secretary of State was entitled by statute to continue to challenge the decision of the FtT. Such efforts were in fact continuing and no relevant time limit had expired. Moreover, the period during which the [Appellant] and his legal representatives were unaware of this continued challenge was short lived, confined to some 2 weeks, ending with the date on which the Upper Tribunal's decision to grant permission to appeal was received: within some few days of the date of the Notice of Decision, 13 September 2013. Fifthly the grant of permission to appeal to the Secretary of State establishes that the Secretary of State's continuing challenge to the decision of the FtT was not speculative or formulaic. Rather, it was serious in nature was judicially adjudged to possess sufficient merit to overcome the relevant threshold. Finally, we consider that the decision of the FtT is so unsatisfactory that it should properly be reviewed by the Upper Tribunal.

…

19. To summarise, the [Appellant] was a fortuitous and undeserved beneficiary of a short lived, genuine administrative error. We consider that his good fortune must bow to the significant public interests identified above. We are satisfied that to give effect to the Secretary of State's withdrawal of the representation made will not be so unfair to the [Appellant] as to countenance and sustain a misuse of public power. In the particular circumstances of this appeal, the public interest must prevail.

25. The Tribunal therefore proceeded to consider the Secretary of State's substantive appeal. They referred to Article 8 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 ("the 2008 Order"):

If the decision of the Tribunal is not unanimous, the decision of the majority is the decision of the Tribunal; and the presiding member has a casting vote if the votes are equally divided.

26. The Upper Tribunal then referred to paragraph 10.2 of the Immigration and Asylum Chamber of the First-tier Tribunal and the Upper Tribunal Practice Statements issued by the Senior President of Tribunals:

10.2 Since Article 8 of the 2008 Order provides that the decision of the majority is the decision of the Tribunal (and that the presiding member has a casting vote), where the jurisdiction of the Tribunal is exercised by more than one member the resulting determination or other decision will not express any dissenting view or indicate that it is of a majority.

27. The Upper Tribunal held that the wholesale disclosure in the determination of the First-tier Tribunal of the differences between the lay member and the presiding member was a material error of law. This was a point raised by the Upper Tribunal itself: it had not been raised by the Secretary of State. Secondly, the Upper Tribunal held that in the circumstances of this case the First-tier Tribunal should have adjourned the Appellant's appeal to be heard by a differently constituted panel. The Upper Tribunal stated:

23. … We consider that the decision of the FtT is infected by two further errors of law. The first is that, in our estimation, the proper course of the panel was to have the appeal considered by different, reconstituted panel. As a matter of good practice, where differences of opinion between panel members are as acute and fundamental as those disclosed in the determination under scrutiny in this appeal, we consider that the panel should proceed no further. While this will have regrettable costs and delay implications, such cases are likely to be very rare.

24. In the particular context of this case, we consider that the panel's failure to stop, adjourn and reconstitute was erroneous in law. The final malaise in the FtT's determination is that it offends the fundamental principle that justice must not only be done, but must manifestly and undoubtedly be seen to be done. Citation of authority for this principle is unnecessary. The determination of the FtT makes for disturbing reading. Its contents disclose a judicial decision-making process and outcome which we consider inimical to the rule of law. This decision cannot be permitted to stand in the contemporary legal culture which places such emphasis on appearances and due process.

28. Accordingly, the Upper Tribunal allowed the Secretary of State's appeal to the extent that the decision of the FtT was set aside. In addition:

Given our profound concerns about what transpired at first instance, we consider that the appeal should be remitted for fresh consideration and determination by the FtT. This exercise will be undertaken by differently constituted FtT.

The contentions of the parties on the appeal to this Court

29. For the Appellant, it was contended that the Upper Tribunal had erred in finding that the First-tier Tribunal had erred in law:

(a) Article 8 of the 2008 Order confers power on the presiding member to exercise a casting vote. That power is only exercisable when the members of the tribunal are divided as to the outcome of the appeal before them. Any such disagreement is fundamental, in the sense that it goes to the success or failure of the appeal. The presiding member of the panel made no error of law in exercising his casting vote, which is precisely what the 2008 Order envisages and authorises.

(b) The failure to comply with paragraph 10.2 of the Practice Statements was not a material error, since it did not affect the outcome of the appeal, i.e., the decision of the First-tier Tribunal to allow the Appellant's appeal.

(c) The Secretary of State's contentions as to the substance of the determination of the First-tier Tribunal amounted to no more than a difference of assessment as to the proportionality of the deportation of the Appellant under Article 8.2 of the Convention, and demonstrated no legal error on the part of the First-tier Tribunal. It followed that the Upper Tribunal should not have set aside the determination of the First-tier Tribunal.

30. Furthermore, the Appellant contended that the Upper Tribunal erred in failing to uphold the legitimate expectation of the Appellant based on the letters received by his solicitors and communicated to him.
31. For the Secretary of State, it was submitted in writing that:

(a) The First-tier Tribunal had erred in law, in that the presiding member failed to consider whether or not it was appropriate to exercise his casting vote. In any event, given the extent of the differences between the members of the panel, the presiding member had erred in law in proceeding to exercise his casting vote. The only proper course in the circumstances was to adjourn the appeal to be heard by a differently constituted panel.

(b) The First-tier Tribunal Judge had erred in law in justifying his exercise of the casting vote on the basis of his "assessment and interpretation of the law" (paragraph 93 of the determination, quoted above). The differences between the Judge and the lay member were not in the main differences as to the law, but as to the primary facts, the inferences to be drawn from them, and of the evaluation of Article 8 rights in the light of the primary and secondary factual findings.

(c) The First-tier Tribunal's failure to comply with paragraph 10.2 of the Practice Direction was a material error of law.

(d) The decision of the First-tier Tribunal was inconsistent with the correct legal approach to deportation, set out in the judgments of the Court of Appeal in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550, [2014] 1 WLR 998, MF (Nigeria) v SSHD [2013] EWCA Civ 544 [2014] 1 WLR 998, in YM (Uganda) v SSHD [2014] EWCA Civ 1292 and SE (Zimbabwe) v SSHD [2014] EWCA Civ 256.

(e) The First-tier Tribunal erred in law in taking into account the effect of the deportation of the Appellant on his rehabilitation: see SE (Zimbabwe) at [43] to [56].

(f) The First-tier Tribunal Judge failed to identify why the circumstances of PF's case were so exceptional that deportation would be disproportionate.

(g) The Upper Tribunal had been wrong to consider the issue of legitimate expectation, which was extraneous to the statutory jurisdiction of the Upper Tribunal, which was to determine whether the First-tier Tribunal had made a material legal error. Nonetheless, "As permission has been granted for a second appeal on this point, and no objection was apparently taken to the point being raised below, and it is not clear from the UT's reasons how the point came to be argued or how it was argued, the SSHD does not, at this stage, actively submit that this Court ought not to rule on it. But she reserves her position on the correctness of the course of action taken by the UT."

(h) In any event, the Upper Tribunal rightly rejected the Appellant's contentions based on his legitimate expectation.

Discussion

(1) Legitimate Expectation

32. In my judgment, the Upper Tribunal should not have raised or considered the Appellant's case on legitimate expectation. It was extraneous to the statutory jurisdiction of the Upper Tribunal, which is, firstly, to decide whether "the making of the decision [of the First-tier Tribunal] concerned involved the making of an error of law": section 12(1) of the Tribunals, Courts and Enforcement Act 2007. It is only if the Upper Tribunal finds that there was such an error of law that it may set aside the decision of the First-tier Tribunal, and if it does so either remit the case to the First-tier Tribunal or re-make the decision: section 12(2). The representations of the Secretary of State on which the Appellant relied had no impact whatsoever on the decision of the First-tier Tribunal.
33. I incline to the view that since this is a question of jurisdiction, it was not open to this Court to ignore it, even if the Secretary of State did not wish to take the point. However, since there was no argument before us addressing this point, I say no more about it.
34. The proper course for an appellant who seeks to rely on a legitimate expectation against the Secretary of State is to commence judicial review proceedings in the Administrative Court. Those proceedings might well be transferred to the Upper Tribunal, but such a transfer would confer the necessary jurisdiction on it.
35. In any event, however, I consider that the Upper Tribunal rightly rejected the Appellant's case on legitimate expectation, for the reasons relied upon by the Secretary of State. The relevant factors are as follows:

(a) The Secretary of State's representations were made entirely in error. Where the court is satisfied that a mistake was made, it should be slow to fix the public authority permanently with the consequences of the error: R v Department for Education and Employment ex parte Begbie [2000] 1 WLR 1115 at 1127B-D.

(b) The information that the Secretary of State wished to pursue her appeal must have disappointed the Appellant and his family. However, the expectation engendered by the representations cannot have lasted more than 9 days, and not the one month referred to by the Upper Tribunal at paragraph 17 of its determination. The first representation regarding the potential grant of leave to remain was in the letter of 9 September 2013. On 13 September the Upper Tribunal granted permission to appeal and sent its decision to both parties. In any event, on 18 September 2013, the Appellant's legal representatives were informed that there had been an error in internal communication which had resulted in the letter of 9 September being sent and that the appeal would be pursued.

(c) There was no evidence of detrimental reliance on the Secretary of State's representations.

(d) There is a strong public interest in the issue of the Appellant's deportation being decided on its merits.

(2) The exercise by the presiding member of the First-tier Tribunal of his casting vote

36. In my judgment, the submissions on behalf of the Appellant fail to distinguish between the power conferred on the presiding member of the Tribunal by Article 8 of the 2008 Order and the discretion whether or not to exercise that power. Indubitably, the presiding member has a casting vote. It does not follow that he may properly exercise it irrespective of the nature and extent of the disagreement between the members of the panel.
37. Here, the differences between the presiding member and the lay member could scarcely have been greater. They were not differences as to the applicable law, which in general may justify the exercise of the casting vote by the judge, or even as to the evaluation of the Article 8 claim. They included such fundamental primary factual issues as the nature and extent of the relationship between the Appellant and MP and the children to whom I have referred, and whether or not the Appellant was genuinely on the way to rehabilitation. If the lay member's views on either of those issues were well founded, there could be no question of his appeal succeeding.
38. In my judgment, in these circumstances, the power to cast a casting vote could not properly be exercised. To cast it involved an error of law. I also consider that the justification for the exercise of the casting vote in paragraph 93 of the determination disclosed a legal error. The differences between the lay member and the Judge were not confined to the Judge's "assessment and interpretation of the law", but, as I have pointed out, went much further.
39. For this reason alone, the Upper Tribunal was right to set aside the determination of the First-tier Tribunal.

(3) The First-tier Tribunal's failure to comply with paragraph 10.2 of the Practice Statements

40. I accept Mr Bonavero's submission that, while this was an error of law, it was not material to the decision of the First-tier Tribunal, since it did not of itself affect the order resulting from its determination. What it did do is reveal the differences between the members of the panel, the exercise by the presiding member of his casting vote, and his reasons for doing so.

(4) Were there substantive errors of law in the determination of the First-tier Tribunal?

41. Mr Bonavero pointed out that in paragraphs 31, 47 and 58 of the determination the First-tier Tribunal recognised the need for the Appellant to show that there were exceptional circumstances justifying his appeal being allowed. For present purposes, it is sufficient to cite paragraph 47:

47. There is according to the Immigration Rules however a presumption in favour of deportation which can only be discharged in exceptional circumstances and following the jurisprudence under Article 8.

Mr Bonavero submitted that it followed that the First-tier Tribunal had applied the correct test. Disagreement as to the weight to be given to the various relevant factors considered by the Tribunal did not amount to an error of law.

42. The most convenient summary of the correct approach in deportation cases is to be found in the judgment of the Court of Appeal in MF:

42 At para 40 [of his judgment in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin)] Sales J referred to a statement in the case law that, in "precarious" cases, "it is likely to be only in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of art 8". This has been repeated and adopted by the ECtHR in near identical terms in many cases. At paras 41 and 42, he said that in a "precarious" family life case, it is only in "exceptional" or "the most exceptional circumstances" that removal of the non-national family member will constitute a violation of article 8. In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, 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.

43. In my judgment, the determination of the First-tier Tribunal did not identify, as it should have done, what were the features of the Appellant's case that amounted to compelling reasons, or were exceptional circumstances, justifying the success of his appeal. Indeed, I would go further and state that I have been unable to identify in the determination findings of fact that could properly be categorised as exceptional, or amounting to compelling reasons for him to be allowed to remain in this country, given the seriousness of his repeated criminal conduct. I fully recognise that if the Judge's factual findings are well founded, there will be a real and damaging impact on his partner and the children; but that is a common consequence of the deportation of a person who has children in this country. Deportation will normally be appropriate in cases such as the present, even though the children will be affected and the interests of the children are a primary consideration. In some cases the family may be able to join the deportee in the country of his nationality, but that was not explored in this case, and I assume was not a real possibility.
44. I also consider that the First-tier Tribunal's consideration of and emphasis on the Appellant's rehabilitation was mistaken. In SE (Zimbabwe) (referred to above) Jackson LJ said, in a judgment with which the other members of the Court agreed:

48. SE is a violent offender, who has made good progress towards rehabilitation. At the time of sentence, his risk of re-offending was assessed as high. That risk is now assessed as medium. It is reasonable to suppose that if SE is deported to Zimbabwe, he will not receive the same level of support and assistance in continuing his rehabilitation process. However, it is also right to note that there was no evidence about this because the issue was not raised; the observation of the Upper Tribunal on the point was really in the nature of an aside.

49. From that point of view, it may be thought that it is desirable for SE to remain in the UK, so that he can access the services of probation officers and other professionals. On the other hand, in the general run of cases, I do not think that this is a valid consideration under article 8 of ECHR. The prospective deportee cannot say:

"I am a criminal. I am only part way through the process of rehabilitation. If I remain in the UK, I will probably become reformed with the help of probation officers and other professional staff. If deported to my home country, I am likely to return to my criminal ways. Therefore I should stay here."

50. In my view, absent exceptional circumstances, this is not a valid argument. The offender cannot rely upon his own partially unreformed criminality as a factor relevant to either his family life or his private life.

45. The risk of reoffending is of course a relevant consideration in a deportation case. However, it follows from the judgments in SE (Zimbabwe) that the fact that the deportee is in the process of rehabilitation is not, in general, a factor to be taken into account. The First-tier Tribunal erred in taking it into account.

Lord Justice Treacy:

46. I agree.

Lord Justice Sullivan:

47. I also agree.