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
		8 March 2016

Lord Justice Tomlinson:

1. This is a renewed application to bring a second appeal in respect of a determination by the Upper Tribunal promulgated on 10 November 2014. There was on that occasion before the Upper Tribunal an appeal by the Secretary of State against a decision of the First-tier Tribunal promulgated on 9 June 2014 pursuant to which the First-tier Tribunal allowed the appeal of the Appellant, to whom I will refer as IT.
2. IT is a national of Jamaica born on 9 April 1979. He arrived in the United Kingdom as a visitor on 1 November 2000 and failed to leave the United Kingdom upon the expiration of his six-month leave to enter. He took no steps to regularise his position. He apparently met his partner in 2002 or 2004 and they began to cohabit in 2006. There are five children.
3. On 4 May 2004 IT was convicted of supplying class A drugs. He was sentenced to five terms of four years' imprisonment, those terms ordered to run concurrently. It appears that he was convicted under a name which was not his own. The circumstances in which that occurred are discussed by the First-tier Tribunal. He was released from prison sometime in 2006 having no doubt spent some time on remand prior to his conviction. There was other criminality following his release from prison.
4. One of the problems that has arisen in this case is that as a result of having been convicted under the name "Simon Anthony Merchant" the Secretary of State was not notified at the time of a conviction registered against him in the name "IT". Similarly when in June 2013 he was convicted for the possession of a class B drug and when in 2011 he was cautioned by the police for assault it would seem that the connection was not made between IT and the very serious conviction in 2004 which attracted the four-year sentence of imprisonment.
5. The significance of the four-year sentence of imprisonment is of course that Rule 398 of the Immigration Rules in the form in which they were applicable at the time of the Secretary of State's decision to deport provide that:

"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 and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

[…]

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. Paragraphs 399 and 399A are only applicable in circumstances where paragraph 398B or 398C applies but not where sub-rule 398A is applicable, and on the basis of the authorities (which are very helpfully set out by Mr Pilgerstorfer both in his skeleton argument and also in the Appellant's statement prepared for this hearing) it is plain that there can be no proper examination of a decision made by the Secretary of State in circumstances such as these without careful reference to both Rule 398A and Rules 399 and 399A bearing in mind that what will be required in order to demonstrate exceptional circumstances will be circumstances going over and beyond the types of matter which are dealt with in paragraphs 399 and 399A.
7. What is striking about the determination of the First-tier Tribunal is that at no point does that Tribunal set out either the applicable parts of Rule 398 or indeed Rules 399 or 399A, nor does it set out the principles to be derived from the relevant authorities. In giving permission to appeal to the Upper Tribunal, Upper Tribunal Judge Gill noted this shortcoming and said this:

"It is arguable that the panel of the First-tier Tribunal erred in its approach to the balancing exercise when it considered the issue of exceptionality. The panel did not refer to paragraphs 398, 399 and 399A of the Immigration Rules. The relevance of this is that the scheme set out in paragraphs 398, 399 and 399A shows that Parliament has decided that those who have received sentences of imprisonment of four years or more should not have the benefit of paragraphs 399 and 399A. This means that in cases that fall within paragraph 398A the fact that paragraphs 399 and 399A may be satisfied was regarded by Parliament as insufficient in itself to outweigh the state's interests. This is the context in which an assessment as to whether there are exceptional circumstances such that the public interest is outweighed by other factors had to be determined in this case."

8. When the matter came before Judge Pinkerton on the substantive hearing in the Upper Tribunal he noted at paragraph 16 that the First-tier Tribunal had apparently considered the Appellant's claim under Article 8 as a matter which "may" be considered in conjunction with Rule 398, and inferentially Judge Pinkerton seems to have recognised that that was inappropriate bearing in mind that it is plain that the Rule (as is made clear by the authorities) mandates that the Article 8 claim must be looked at through the lens of Rule 398 and Rules 399 and 399A. But Judge Pinkerton went on to say that although the use of the word "may" was not apparently appropriate, in context he did not regard that as a material misdirection.
9. It seems to me with great respect to the Upper Tribunal that the approach of the First-tier Tribunal was arguably completely flawed in that the First-tier Tribunal appears to have thought that it was at liberty to conduct a freestanding appraisal of the Appellant's Article 8 rights without regard to the Immigration Rules. That was a misdirection.
10. Furthermore, there are other aspects of the determination of the First-tier Tribunal which to my mind give rise to serious question. In dealing with the question of delay the First-tier Tribunal concluded at paragraph 48 that in the light of the period of time which elapsed between the Appellant's conviction and the Secretary of State's decision to deport it was "difficult to see that the Respondent [the Secretary of State] finds the Appellant's exclusion from the UK conducive to the public good". That again as it seems to me betrays a fundamental misunderstanding of the framework against the background of which the Tribunal must evaluate the position. It is nothing to the point whether the Secretary of State finds the Appellant's exclusion from the UK conducive to the public good. The fact is that Parliament has determined that the deportation of foreign criminals is in the public interest and so far as concerns foreign criminals to whom a sentence of four years or more has been given, it has made clear that it will only be in very exceptional circumstances that those considerations will be regarded as outweighed.
11. Furthermore, the First-tier Tribunal appears to have regarded the lapse of time between conviction and the deportation order as a matter to be weighed in the balance against the Secretary of State without regard to the consequences and the effect of the delay. Again, as it seems to me that is arguably a mistaken approach.
12. For all these reasons, therefore, and notwithstanding that Lloyd Jones LJ refused the application for permission to appeal, I am satisfied that for the reasons set out in full in Mr Pilgerstorfer's very comprehensive and careful skeleton argument of 24 March 2015 and in his Appellant's statement of 4 March 2016 there are here very important points of principle or practice such as he has identified and indeed other compelling reasons for the Court of Appeal to entertain a second appeal. It is of course a matter of great public concern that Parliament's intention so far as concerns the deportation of foreign criminals should be fully understood by the tribunals and it is in my judgment fairly arguable that the First-tier Tribunal and the Upper Tribunal have here failed to carry out the Parliamentary intention and indeed have failed to have regard to the guidance given by this court. I am conscious that there has been since the determination of the Upper Tribunal at least one further decision of this court, that is to say, the decision in LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310 in which important guidance was given, but nonetheless for the reasons I have indicated I am quite satisfied that it is appropriate that the Secretary of State should be granted permission to appeal in this case.

Order: Application granted