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
		24 June 2015

LORD JUSTICE LEWISON:

1. This is a renewed application for permission to appeal by EG against a decision of the Upper Tribunal which allowed the appeal of the Secretary of State against a decision by the First-tier Tribunal that EG was entitled to remain in the United Kingdom by virtue of Article 8 of the European Convention on Human Rights. EG had in fact also made a claim under Article 3 for humanitarian protection, but that was rejected by the First-tier Tribunal really on the ground that they were not satisfied with the veracity of EG's evidence, and there has been no appeal against that. So the application is based only on Article 8.
2. The test for permission to appeal is of course the second appeals test, which has two limbs. The first is that the appeal must raise some important point of principle or practice. As to that limb, firstly the point must be raised by the appeal, and so it is not enough merely to assert that the Tribunal has failed to apply settled law; and secondly the point must be important. The second limb of the test is that there is some other compelling reason for this court to hear the appeal. In some cases, particularly in asylum cases where the consequences are so dire for the appellant if it turns out that the Upper Tribunal was wrong, this court has rather watered down the compelling reason test. But in the present case there is no question of such harsh consequences for the appellant personally, because, as I have said, the Article 3 claim was dismissed and the First-tier Tribunal found that he had no genuine fear of persecution. So the first limb is the relevant limb.
3. The Upper Tribunal overturned the First-tier Tribunal's decision because the Upper Tribunal considered that the findings which the First-tier Tribunal had made about the seriousness of the appellant's offence had not been properly fed into their consideration of Article 8. This is not a question simply of a presumption in section 72 which is for limited purposes: it is a question of the positive findings of fact which the First-tier Tribunal made.
4. The appellant was sentenced to a lengthy term of imprisonment for possession of Class A drugs with intent to supply. His most recent offence, according to the First-tier Tribunal, was committed in order to provide financially for himself and his family as well as to fund his own drug habit. That is the finding they made at paragraph 132. At 133 the First-tier Tribunal said:

"Taking into account the appellant's past history we are not satisfied that the financial issues would not still play a part in his decision making in the future."

5. Although somewhat elliptically expressed because of the double negative, I read that as saying that they were satisfied that financial issues would still play a part in his decision making in the future. They go on in paragraph 134 to say:

"We are satisfied that being involved in drug dealing and production does create a danger to the community."

6. That is not simply saying the appellant has failed to rebut the section 72 presumption; that is a positive finding.
7. When they come to consider Article 8, these two findings, which really relate to the future prospects of the appellant, play no part in the reasoning at all. Nor, as it seems to me, does the FTT acknowledge that part of the public policy for the deportation of foreign criminals is that of deterrence; they concentrate simply on the appellant alone. I consider, therefore, that the Upper Tribunal were justified in deciding that the First-tier Tribunal had made an error of law sufficient to enable the Upper Tribunal to intervene.
8. So far as the Upper Tribunal is concerned, they, as it seems to me, applied the correct test which they drew from the decision of the Upper Tribunal in Kabia, namely circumstances in which deportation would result in unjustifiably harsh consequences for the individual or their family such that deportation would not be proportionate. The question, therefore, is not whether the consequences are harsh, as undoubtedly they would be, but whether they are unjustifiably harsh. The Upper Tribunal considered those questions in paragraphs 23 to 25 of their decision and they came to the conclusion that the public interest outweighed the consequences, albeit harsh, which the appellant's deportation would have. As they said in paragraph 25:

"... we do not consider that the appellant's deportation would result in unjustifiably harsh consequences for the appellant or his children or their respective mothers".

9. I do not consider, contrary to Mr Fripp's submissions, that they misdirected themselves in relying on the decision of the Court of Appeal in Lee, which in effect holds that deportation does have harsh consequences. The question for the Upper Tribunal was whether those harsh consequences were unjustifiable. That, as it seems to me, is a question of evaluation rather than of law. I do not consider that the first limb of the second appeals test has been satisfied either, and in those circumstances I refuse permission to appeal.