England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER
Upper Tribunal Judge Kekic
Upper Tribunal Judge Reeds
DA/01351/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st July 2015

Lord Justice Moore-Bick :

1. This is an appeal against the decision of the Upper Tribunal dated 7^th February 2014 dismissing the appellant's appeal against a deportation order made against her by the Secretary of State.
2. The appellant, Mrs. Taylor, is a national of Colombia who first entered the United Kingdom on a false passport in 2006 in order to find employment that would enable her to provide for her four children and her mother, all of whom remained in Colombia. While in this country she met a British national, Mr. Ronald Taylor, and returned to Colombia in September 2008 in order to get married to him. On 27^th November 2008 she returned to the United Kingdom with him, having been granted 2 years' leave to enter as his spouse. Together with a Colombian friend, Mauro, whom she had met in this country they set up a small business importing flowers and foodstuffs from Colombia. The day to day management of the business was left in the hands of Mauro. In due course the appellant and her husband became aware that the business was being used as a cover for importing cocaine. When they challenged Mauro he threatened reprisals against the appellant's mother and children in Colombia.
3. Eventually the police intercepted a parcel of 20 kg of cocaine of 60% purity in the course of importation under cover of the appellant's business. She and her husband were arrested and in due course they both pleaded guilty to being knowingly involved in the evasion of the prohibition on the import of a Class A drug. The appellant was sentenced to 8 years' imprisonment and her husband to 9 years' imprisonment. As a result, the appellant became liable to deportation as a foreign criminal under section 32 of the UK Borders Act 2007, the material parts of which provide as follows:

"(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.

(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33)."

4. Section 33 provides as follows:

"33 Exceptions

(1) Section 32(4) and (5)—

(a) do not apply where an exception in this section applies . . .

(b) . . .

(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—

(a) a person's Convention rights, or

(b) the United Kingdom's obligations under the Refugee Convention."

5. Paragraphs 398 to 399A of the Immigration Rules are directed to those cases in which foreign criminals who are liable to deportation claim that removal would involve an unlawful infringement of their rights under Article 8 of the European Convention on Human Rights ("the Convention"). Paragraph 398 in the form in force at the relevant time provided, so far as material, as follows:

"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) . . .

(c) . . .

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."

6. Paragraph 399 is concerned with two instances in which exceptional circumstances are established. The first concerns the existence of a parental relationship between the person liable to deportation and a child living in this country; the second concerns the existence of a subsisting relationship between the person liable to deportation and a partner who is settled in this country. In the latter case the partner has to have lived in this country for at least 15 years and there must have been "insurmountable obstacles" to family life with that partner continuing outside the UK. Paragraph 399A is directed to the case where the person liable to deportation has lived continuously in the UK for at least 20 years and has no ties with the country to which he would have to go if required to leave the UK or is aged under 25 years, has spent at least half of his life living continuously in the UK and has no ties to that country.
7. Since paragraph 398(a) applies in this case, neither of those provisions is directly relevant, but I have drawn attention to them because they serve to emphasise the rigorous requirements which foreign criminals face for obtaining leave to remain when sentenced to between 12 months' and 4 years' imprisonment. One might therefore reasonably expect that the requirements of the rules would be no less rigorous for those who have been sentenced to more than 4 years' imprisonment and that the expression "exceptional circumstances" in paragraph 398 would be interpreted with that in mind. It is not surprising, therefore, that in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 WLR 998 this court should have described the position as follows:

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" [sc. to which paragraph 398 refers].

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."

It follows that only very compelling reasons will be sufficient to outweigh the strong public interest in the deportation of a foreign criminal.

8. The Secretary of State made a deportation order against the appellant pursuant to section 32(5) of the 2007 Act. The appellant lodged an appeal with the First-tier Tribunal on the grounds that to deport her would unlawfully interfere with her rights under Article 8 of the Convention. She relied on the fact that she had behaved very well in custody and had since demonstrated positive good character by caring for her elderly parents-in-law, with whom she had a close relationship and who had come to rely heavily on the support they received from her. She had done all that could reasonably be expected of her by way of rehabilitation and was unlikely to re-offend.
9. The tribunal noted the observation of this court in Richards v Secretary of State for the Home Department [2012] EWCA Civ 244 that "the strong public interest in deporting foreign criminals is now not merely the policy of the Secretary of State but the judgment of Parliament", (a point emphasised in the subsequent case of SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 256; [2014] 1 WLR 998). It also recognised that the public interest in deportation encompassed the need for deterrence, the promotion of public confidence in the treatment of foreign criminals and the need to express society's condemnation of those who commit serious offences. Nonetheless, it was persuaded that there were in this case very compelling reasons in favour of allowing the appellant to remain in this country sufficient to outweigh the public interest in her deportation. The circumstances on which it relied were (a) her behaviour in custody, which was described as "exemplary", (b) a low risk of re-offending, (c) that since being granted day release from prison she had volunteered for service with Surrey Community Action, which regarded her conduct as "quite exceptional", (d) her considerable attempts to rehabilitate herself, (e) the caring role she had undertaken towards her parents-in-law and (f) the existence of a genuine marriage of five years duration to a British national who would be very unlikely to be allowed to travel to see her in Colombia during the remainder of his 4½ year licence period, thus jeopardising the relationship. The tribunal thought she had shown herself worthy of a second chance.
10. The Upper Tribunal concluded that in reaching its decision the First-tier Tribunal had erred in law by failing to attach sufficient weight to the public interest in deporting foreign criminals and failing to consider some factors at all. In particular it did not think that the tribunal had drawn a clear distinction between factors that would ordinarily be relevant to a decision on the proportionality of removal and the factors which in this case were considered to amount to exceptional circumstances required to outweigh the public interest in deporting foreign criminals. Factors which the tribunal considered the First-tier Tribunal had failed to take into account included the appellant's inability to meet the minimum requirements of paragraphs 398 and 399 of the Rules, the fact that there was nothing specific to establish that the appellant's husband would not be allowed to visit her in Colombia during his licence period, the fact that her parents-in-law had managed without her care while she was in prison and her family ties to Colombia. Overall, it considered that the First-tier tribunal had failed to explain properly why the positive factors on which it relied were strong enough to outweigh the public interest in deportation. It therefore set aside the decision. At a subsequent hearing the tribunal, similarly constituted, re-made the decision dismissing the appellant's appeal against the Secretary of State's decision.
11. Mr. Raza Husain Q.C. put forward two submissions on behalf of the appellant: (i) the Upper Tribunal had had no jurisdiction to set aside the decision of the First-tier Tribunal; and (ii) that in any event the Upper Tribunal itself had erred in law in balancing the public interest in deporting the appellant against the circumstances militating in favour of allowing her to remain in this country.

The jurisdiction of the Upper Tribunal

12. There were two different aspects to this limb of Mr. Husain's submissions. The first concerned the scope of the permission to appeal granted to the Secretary of State; the second the question whether the First-tier Tribunal had committed an error of law.
13. The application for permission to appeal to the Upper Tribunal was supported by grounds of appeal which were longer and more argumentative than was really justified. Mr. Husain submitted that they contained nothing more than a disagreement with the conclusion reached by the First-tier Tribunal and accordingly did not identify an error of law capable of being the subject of an appeal.
14. I am unable to accept that submission. The Secretary of State identified two grounds of appeal. The first was that the First-tier Tribunal had misdirected itself by adopting what was described as a "two-stage" test, i.e. by considering the appellant's article 8 rights and the requirements of the Immigration Rules separately. The second was that the tribunal had erred in law by failing to give adequate reasons for its conclusion that there were in this case exceptional circumstances which outweighed the public interest in deportation. Whether viewed independently or in combination, however, the argument which the Secretary of State sought to advance on appeal was that the tribunal had failed to give sufficient weight to the requirements of the Immigration Rules and consequently to the weight to be given to the public interest in the deportation of foreign criminals. Both grounds raised questions of law and it was for the tribunal to determine whether they were sufficiently arguable to justify granting permission to appeal. The terms in which permission to appeal was granted were more succinct, but they reflected the substance of the application for permission. In my view the Upper Tribunal had jurisdiction to consider whether the First-tier Tribunal had indeed erred in law.
15. The second, and more important, question is whether the Upper Tribunal was right to hold that the First-tier Tribunal had made an error of law in reaching its conclusion. As the tribunal recognised in paragraph 11 of its decision, the crucial question is whether the First-tier Tribunal took into account all the important factors and whether it gave sufficient weight to the public interest. Mr. Husain submitted that it had and drew our attention to passages in the decision of the First-tier Tribunal in which aspects of the public interest were mentioned. He also relied on the fact that the Upper Tribunal did not express the view that the decision of the First-tier Tribunal was perverse. The only proper conclusion, he submitted, was that there was room for disagreement in the application of the balancing exercise and that it could not be said that the decision reached by the First-tier Tribunal had not been open to it.
16. This, it seems to me, is the central point in this appeal. Although Mr. Husain was able to criticise some aspects of the Upper Tribunal's decision, I do not think it is helpful to analyse that decision in detail. The real question is whether it was right to conclude that the First-tier Tribunal had failed to give sufficient weight to the public interest. In paragraph 45 of its decision the First-tier Tribunal recognised the need to attach significant weight to the public interest, although it might be said that it failed to identify clearly the different purposes served by deportation, namely, to reflect public revulsion at serious crime, to protect the public from further offending and to deter others who might be tempted to act in a similar way. Having dealt with the public interest quite succinctly, the tribunal went on to consider the positive aspects of the appellant's case before concluding in relatively brief terms that exceptional factors existed in this case sufficient to justify setting aside the deportation order. What one does not find, however, is any discussion of the public interest of a kind that would indicate that the tribunal was aware of its importance or the reasons underlying it, or any attempt to explain why the circumstances of this particular case were sufficient to outweigh it.
17. None of that might matter if the decision had spoken for itself, but in my view it does not. The factors to which the tribunal attached importance reflected credit on the appellant, but it is difficult to see that they amounted to exceptional circumstances or very compelling reasons of a kind that could properly outweigh the public interest in her deportation. Nor do I think that the risk to her marriage takes the matter much farther. Some indication of the kind of circumstances that will meet that requirement are to be found in paragraphs 399 and 399A of the Rules, to which I have referred, but it is to be noted that they do not apply in the case of a person who has been sentenced to a term of imprisonment of 4 years or more. The appellant's sentence in this case was considerably longer than that and reflected the seriousness of her offence. The public interest in her deportation was correspondingly heightened. In my view the Upper Tribunal was right to hold that it was not open to the First-tier Tribunal to find in this case that there were exceptional circumstances or very compelling reasons of a kind that outweighed the public interest in deportation.
18. In my view, therefore, the Upper Tribunal was right to hold that the First-tier Tribunal erred in law and that its decision could not stand.

(b) The decision of the Upper Tribunal

19. In its decision dated 7^th February 2014 the Upper Tribunal re-made the decision and dismissed the appellant's appeal. The findings of fact made by the First-tier Tribunal were preserved, apart from its finding that deportation would effectively bring an end to the appellant's marriage. That was a matter in dispute and was the subject of evidence. The other findings are set out in paragraph 12 of the decision and were accepted in full. In addition, the tribunal received evidence from the appellant, her husband, her mother-in-law and others who had supported her case before the First-tier Tribunal. The essential facts were not in dispute, but the tribunal set out the evidence and submissions in some detail before reaching its conclusion. It was not satisfied that deportation would bring an end to the appellant's marriage, but in any event it did not regard that as a critical factor. The tribunal considered the appellant's case in great detail and with considerable care. It concluded that the factors favouring the appellant were neither exceptional nor sufficient to outweigh the public interest in her deportation. It therefore dismissed her appeal.
20. Mr. Husain submitted that the Upper Tribunal had itself erred in law in reaching its conclusion, in particular in failing to give sufficient weight to the degree of rehabilitation that the appellant had achieved. In that connection he reminded us that in Danso v Secretary of State for the Home Department [2015] EWCA Civ 596 the court had recognised that rehabilitation was a factor to be taken into account and could in some cases be an important factor.
21. I would certainly not wish to diminish the importance of rehabilitation in itself, but the cases in which it can make a significant contribution to establishing the compelling reasons sufficient to outweigh the public interest in deportation are likely to be rare. The fact that rehabilitation has begun but is as yet incomplete has been held in general not to be a relevant factor: see SE (Zimbabwe) v Secretary of State for the Home Department [2014] EWCA Civ 256 and PF (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 596. Moreover, as was recognised in SU (Bangladesh) v Secretary of State for the Home Department [2013] EWCA Civ 427, rehabilitation is relevant primarily to the reduction in the risk of re-offending. It is less relevant to the other factors which contribute to the public interest in deportation. In any event, the tribunal in this case was clearly aware of the extent to which the appellant had rehabilitated herself. It was for the tribunal to decide how much weight should be attached to that.
22. As he accepted, Mr. Husain's argument involved the submission that the tribunal's decision was not reasonably open to it, but in my view that submission is unsustainable. The tribunal identified and carefully considered all the factors which favoured the appellant and gave full weight to them. It was entitled, nonetheless, to conclude that they were not strong enough to outweigh the public interest in deportation.
23. For these reasons I would dismiss the appeal.

Lord Justice McCombe :

24. I agree.

Lord Justice Vos :

25. I also agree.