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
		19/04/2016

Lord Justice Gross :

INTRODUCTION:

1. Our task on this appeal is to determine whether the First-Tier Tribunal ("the FTT") erred in law and whether the Upper Tribunal ("the UT") itself erred in law in upholding the FTT's decision. Underlying this appeal, however, is the important policy question as to the public interest in the deportation of foreign criminals, applied in the context of an individual who, although guilty of serious criminal conduct, has lawfully resided in this country for over 40 years.
2. The Secretary of State for the Home Department ("the SSHD") appeals, with the permission of Laws LJ, granted at an oral renewal hearing on 12^th February, 2015, against the decision of the UT to dismiss her appeal against the decision of the FTT to allow the Respondent's ("LW's") appeal against deportation.
3. A brief chronology is helpful:

i) LW is a Jamaican national.

ii) He was born on 24^th April, 1957 (and so is now approaching 59).

iii) He entered the United Kingdom ("UK") in August 1973 (to join his father, who was living here with his mother), at the age of 16.

iv) He was granted indefinite leave to remain on 11^th October, 1973 and has lived in the UK lawfully ever since.

v) On the material available to this Court, he has only been to Jamaica twice since coming to the UK in 1973; both of those occasions were in 2010; one was for a short holiday, the other to attend his grandmother's funeral.

vi) Between 17^th December, 1976 and November 2011, he amassed in this country 21 convictions for a total of 35 offences.

vii) On the 24^th October, 2011, LW pleaded guilty to possession with intent to supply class A drugs (crack cocaine, "the conviction")).

viii) On the 6^th December, 2011, he was sentenced to 6 years imprisonment ("the sentence").

ix) On the 29^th May, 2013, the SSHD issued LW with a Deportation Order ("the Deportation Order") on the basis that, in the light of the sentence such an order is automatic under the legislation to which I shall come. It is fair to underline that the Deportation Order was based on the sentence alone – not LW's criminal record in general.

x) By its determination promulgated on the 22^nd August, 2013, the FTT allowed LW's appeal against the Deportation Order ("the FTT decision").

xi) Following an initial refusal by the FTT but with permission subsequently granted by a Judge of the UT (to which I shall return), the UT heard the SSHD's appeal from the FTT decision. By its determination promulgated on the 13^th March, 2014, the UT held that the FTT had not erred in law and upheld the FTT decision ("the UT decision"). As already indicated, the SSHD appeals to this Court from the UT decision.

4. It is convenient to mention LW's family at this stage. He and his wife have been together for over 20 years and married on 23^rd June, 2011. They have two children, one of whom, Tyrone, was just under 18 at the time of the FTT decision (and is now over 18). LW also has two stepchildren. LW's mother, brother and two sisters are also in the UK. LW's wife and children are all British citizens. It is said that he has always played an active role in his children's lives and has always lived with them, except when imprisoned. It may be noted that Tyrone was sentenced to a Detention and Training Order for a domestic burglary; he was released on licence on the 7^th February, 2013 and his licence expired on the 5^th September, 2013.

THE LEGAL FRAMEWORK

5. The UK Borders Act 2007 ("the 2007 Act") provides, so far as material, as follows:

" 32 Automatic deportation

(1) In this section 'foreign criminal' means a person –

(a) who is not a British citizen,

(b) who is convicted in the United Kingdom of an offence, and

(c) to whom Condition 1 or 2 applies.

(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(4) For the purpose of section 3(5)(a) of the Immigration Act 1971….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).

33 Exceptions

(1) Section 32(4) and (5) –

(a) do not apply where an exception in this section applies (subject to subsection (7) below)…..

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

(a) a person's Convention rights…..

(7) The application of an exception –

(a) does not prevent the making of a deportation order;

(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;

but section 32(4) applies despite the application of Exception 1 or 4."

6. In short, the effect of these provisions is that by s.32(4), Parliament has decided that the deportation of foreign criminals is conducive to the public good. By s.32(5), the SSHD is obliged to make a deportation order, subject to s.33. Turning to s.33, it identifies a number of exceptions which, if applicable, have the consequence that sub-sections 32(4) and (5) will not apply. The only exception here relevant is where the removal of the foreign criminal would breach his rights under the ECHR. However, pursuant to s.33(7), if the exception relied upon is that deportation would amount to a breach of the foreign criminal's ECHR rights, then s.32(4) continues to apply – i.e., it remains the case that deportation is conducive to the public good.
7. The detail is dealt with in the Immigration Rules, which reflect the statutory obligation of the SSHD to deport foreign criminals while recognising that there may be cases where the making of a deportation order would be incompatible with Art.8. Rules 398, 399 and 399A ("the new rules") were introduced in 2012 into the Statement of Changes in Immigration Rules (1994) (HC 395) by the Statement of Changes in Immigration Rules (2012) (HC 194). (New) Rule 398 of the Immigration Rules (in the terms current at the time of the decisions under challenge in this appeal) is in these terms:

" 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) 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 less than 4 years but at least 12 months; or

(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

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. "

8. The scheme here may be simply summarised. Rule 398 (a) deals with those sentenced to at least 4 years imprisonment. Rules 398 (b) and (c) deal with those sentenced to lesser periods of imprisonment. Rules 399 and 399A make provision for various circumstances where, given matters such as family relationships, implicitly at least, deportation would be contrary to Art. 8. Thus, for example – and perhaps germane to the present case – Rule 399A (a) deals with the case of a person who has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision and has no ties with the country to which he would have to go if required to leave the UK. It should be noted that (as cited in MF (Nigeria), referred to below) a document issued by the SSHD to assist caseworkers in applying the new rules, entitled "Criminality Guidance for article 8 ECHR Cases" (March 2013), asserts that a case is not exceptional "just because the exceptions to deportation in rule 399 or rule 399A have been missed by a small margin".
9. Crucially, for present purposes, both Rules 399 and 399A are premised on Rules 398 (b) or (c) applying. Neither Rules 399 nor 399A assists a person sentenced to at least 4 years imprisonment and who falls within Rule 398 (a), as does LW in this case. In cases where Rule 398 (a) applies, the person concerned requires "exceptional circumstances" to outweigh the public interest in deportation.
10. The new rules were considered in MF (Nigeria) v Home Secretary [2013] EWCA Civ 1192; [2014] 1 WLR 544. Giving the judgment of the Court, Lord Dyson MR observed (at [2]) that the new rules "…introduced for the first time a set of criteria by reference to which the impact of article 8 in criminal deportation cases was to be assessed." It was common ground (at [35]) that the first step to be undertaken under the new rules was to decide whether deportation would be contrary to an individual's Art. 8 rights, on the grounds that paragraph 398 (b) or (c) and one or more of the conditions set out in paragraphs 399 or 399A applied. The Court next posed this question (at [36]):

" What is the position where paragraphs 399 and 399A do not apply either because the case falls within paragraph 398(a) or because, although it falls within paragraph 398 (b) or (c), none of the conditions set out in paragraph 399(a) or (b) or paragraph 399A (a) or (b) applies? The new rules provide that in that event, 'it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.'"

The Court observed (at [38]) that paragraph 398 expressly contemplated a weighing of "other factors" against the public interest in the deportation of foreign criminals. The "central question" was whether the use of the phrase "exceptional circumstances" meant that the weighing exercise contemplated by the new rules was to be carried out compatibly with the ECHR.

11. The Court continued as follows:

" 40. ….. Ms Giovannetti [for the SSHD] submits that the reference to exceptional circumstances serves the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who do not satisfy paragraphs 398 and 399 or 399A. It is only exceptionally that such foreign criminals will succeed in showing that their rights under article 8.1 trump the public interest in their deportation.

41. We accept this submission…..

42. …..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 paragraphs 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. We accordingly respectfully do not agree with the UT that the decision-maker is not 'mandated or directed' to take all the relevant article 8 criteria into account….."

12. MF (Nigeria) has been followed repeatedly in this Court since; two references suffice. First, in LC (China) v SSHD [2014] EWCA Civ 1310; [2015] INLR 302, Moore-Bick LJ said this (at [17]):

" 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 …… The second is that it is wrong to consider the question of infringement of Art 8 rights outside the terms of the Immigration Rules…. "

13. Secondly, the significance of the approach adopted in MF (Nigeria) was, with respect, illuminated by the observations of Sales LJ in SSHD v AJ (Angola) [2014] EWCA Civ 1636, at [39] – [40]:

" 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……

40. ……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 ….so as to promote public confidence in that system in this sensitive area. "

14. Pulling the threads together:

i) The new rules provide a comprehensive code;

ii) The context is the great weight to be attached to the public interest in the deportation of foreign criminals;

iii) That public interest and related questions of public confidence reflect (1) protection of the public from re-offending; (2) deterrence; (3) public revulsion;

iv) The considerations in a deportation case are thus very different from those applicable to cases of immigration control;

v) A proportionality test, taking all the relevant Art 8 criteria into account and weighed in the scales against the public interest in deportation, is to be conducted - but through the lens of the new rules, rather than as a free-standing exercise;

vi) In the case of a person sentenced to at least 4 years imprisonment, paragraph 398(a) applies and neither paragraph 399 nor 399A is applicable; accordingly, it will only be in "exceptional circumstances" that the public interest in deportation will be outweighed by other factors;

vii) "Exceptional" here means something "very compelling" rather than something "unusual"; that something is "unusual" is, no doubt, a necessary but not sufficient condition for the determination that "exceptional circumstances" apply.

viii) The application of the new rules in an individual case is necessarily fact specific.

15. I turn briefly to the approach to be adopted by this Court when dealing with appeals from specialist tribunals, such as the FTT and UT here. In AH (Sudan) v Home Secretary [2007] UKHL 49, in a well-known passage, Baroness Hale of Richmond said this (at [30]):

" This is an expert tribunal charged with administering a complex area of law in challenging circumstances. ….the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right….. They and they alone are the judges of the facts…… Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently….. "

In MA (Somalia) v SSHD [2010] UKSC 49, Sir John Dyson SCJ (as he then was) expressed much the same thought in these terms (at [45]):

" ….the court should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the … [tribunal's]…assessment of the facts. Moreover, where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account. "

THE FTT DECISION

16. The FTT decision recorded the evidence and submissions before reciting the provisions of the 2007 Act, the new rules and Art. 8. At [31], the FTT stated that it had "taken into account relevant decided cases including…" and there followed a lengthy list of authorities, together with some observations on certain of them. At [35] and following, the FTT reflected what it described as its obligation "…..to treat the best interests of Tyrone as a primary consideration". Some lengthy citation of ZH (Tanzania) followed. Various other matters including the Judge's sentencing observations and the Pre-Sentence Report were then referred to.
17. At [51] to [55] the FTT addressed the new rules and Art. 8. The critical reasoning in this part of the decision appears from [53] – [54]:

"53. We have considered the afore-mentioned factors and documents such as the Judge's sentencing remarks, the pre-sentencing report and OASys report as well as the effect on the Appellant's family (in particular, the best interests of Tyrone) should the Appellant be deported and weighed them against factors such as the Appellant's criminal record and the public interest in removing foreign citizens convicted of serious offences.

54. Many men are sent to prison [for] drugs offences with the consequence that it is difficult for members of the family when such an event happens.

We do not find that there is anything exceptional in the suffering of family members whilst a person serves a sentence of imprisonment.

We do not find that the Appellant has shown that his medical problems are exceptional. Many persons suffer from diabetes.

However, we do find that it would be exceptional to deport a 56 year old person who has been resident in the United Kingdom for approximately forty years, who has strong family ties in the United Kingdom, no family or ties to Jamaica and who is, in effect, a 'home-grown offender'. He came to the United Kingdom when he was approximately sixteen and first offended when he was twenty years of age."

For these reasons, the FTT allowed LW's appeal under the Immigration Rules in relation to Art. 8.

18. The FTT then embarked on a lengthy and free-standing consideration of Art. 8 at [56] and following. In so doing, the FTT considered a number of authorities, properly categorised as dealing with immigration control rather than deportation: see, for example, Maslov v Austria [2009] INLR 47 GC. Ultimately, at [80], the FTT concluded that:

"….notwithstanding the Appellant's serious offending whilst in the United Kingdom, …the Appellant's Article 8 claim succeeds and that deportation of this appellant is not the appropriate course on the merits of his case…."

19. For completeness, it may be noted that the FTT rejected a claim by LW that his Art. 3 rights would be breached, on account of his diabetes, if he had to return to Jamaica.

THE UT DECISION

20. The UT decision may be taken very shortly. Essentially, the UT recorded the FTT decision and addressed the grounds then relied upon by the SSHD in turn. The UT held (at [29]) that the conclusions reached by the FTT "…were open to the panel on all the evidence and sufficiently reasoned". The FTT had not erred in law and the UT upheld its determination.

THE RIVAL CASES

21. For the SSHD, Ms Busch QC submitted that the FTT failed to place any, or any adequate, weight upon the significant public interest in deporting foreign criminals from the UK. Accordingly, there had yet to be conducted a properly conducted assessment of the proportionality of LW's deportation. The FTT decision was significantly flawed and the UT should have but did not, set aside that decision. The UT decision should be quashed, the appeal allowed and the matter remitted to the UT for reconsideration. Irrespective of the ultimate outcome in this case, quashing the flawed decisions here was important for public confidence in this sensitive area.
22. For LW, Ms Knights grouped her submissions under three headings: (1) The FTT had applied the wording of the new rules; (2) this Court should take into account that we were hearing an appeal from a specialist tribunal, indeed, two specialist tribunals which had reached the same conclusion; (3) the structure of the FTT decision itself and the FTT's approach did not reveal an error of law.
23. Under the first heading, Ms Knights emphasised that the FTT decision pre-dated the decision in MF (Nigeria), so the FTT could not fairly be criticised for failing to follow the language of the Court of Appeal in that case. Ms Knight acknowledged that MF (Nigeria) was available to the UT but no mention was made of it in the UT decision. The FTT had applied the wording of the rules; the public interest in deportation of foreign criminals was well-known and it was not an error of law for the FTT not to set out, expressly, the importance attached by the SSHD to that public interest – everyone knows it. Implicitly, bearing in mind that MF (Nigeria) had not yet been decided, when the FTT used the word "exceptional", it meant "compelling". There were compelling reasons for not deporting a 56 year old man (at the time of the FTT hearing), who had resided here for some 40 years and had close family ties.
24. Turning to her second heading, Ms Knights contended that where a specialist tribunal had cited the correct law or rule, this Court should be slow to infer that it had gone wrong in law. The FTT decision should not be subjected to unduly critical reasoning and we should not "rush" to find a misdirection, simply because this Court took a different view. The present case was about facts not law.
25. Under her third heading, Ms Knights invited us to consider the FTT decision "holistically". She conceded that the free-standing consideration of Art. 8 – from paragraph 56 onwards – was incorrect; it did not, however, disclose a material error because the FTT had already decided the case in LW's favour under the new rules. It was plain that the FTT was completely aware of the relevant public interest and not tenable to submit that the FTT had failed to give any or adequate weight to it.
26. Finally, Ms Knights agreed with Ms Busch that if this Court was minded to allow the appeal, then the right course was to remit case to the UT.
27. In reply, Ms Busch resisted what she termed the "elision" in Ms Knights' argument and the language of the FTT decision between "exceptional" and "compelling". The FTT had treated "exceptional" as meaning "unusual" rather than "compelling". The FTT – especially in paragraph 54 – had fallen into the trap of finding certain circumstances "exceptional" without asking the pertinent question of whether they were sufficiently compelling to override the public interest in the deportation of a foreign criminal. The first and second parts of the FTT decision could not be insulated from each other; if, as Ms Busch submitted, the second part was incorrect it was implausible that the FTT had adopted a correct approach in the first part.

DISCUSSION

28. In form, this is an appeal from the UT decision. However, given the nature of the FTT and UT decisions (already outlined), the reality is that the appeal involves an inquiry into the FTT decision; the UT decision will stand or fall depending on the view we take of the FTT decision.
29. In considering the FTT decision we keep well in mind the observations of the House of Lords and the Supreme Court in AH (Sudan) and MA (Somalia), both supra, as to the approach to be adopted when dealing with appeals from specialist tribunals.
30. However, even approached in this fashion, it is common ground that the FTT decision from [56] onwards was incorrect; the Art. 8 criteria ought to have been considered through the lens of the new rules rather than in the free-standing manner adopted by the FTT. All the more so, as a number of the authorities there considered by the FTT related to immigration control rather than deportation, so compounding the error.
31. Granted, therefore, that the FTT strayed in its decision from [56] onwards, what follows? To my mind, the FTT's reasoning in that second part of its decision is revealing as to its approach and thought processes; plainly, there is the risk that this second part of the decision "infected" the FTT's reasoning overall – an erroneous approach in the second part of its decision may betray a similarly erroneous approach in the first part of the decision. That said, it does not, by itself, establish that the FTT erred in the first part of its decision, where it sought to apply the new rules. In short, while the second part of the FTT decision casts serious doubt upon and invites critical scrutiny of the first part, confusion in the FTT's approach to Art. 8, especially as the FTT's decision pre-dated MF (Nigeria), does not necessarily mean that the FTT failed to address the new rules correctly.
32. I therefore return to [53] – [54], the paragraphs which are key to the FTT reasoning in the first part of its decision. Reading these paragraphs as benevolently as I can, I am unable to avoid the conclusion that the FTT here fell into error. While it is fair to say that mention is made of the public interest in "removing foreign citizens convicted of serious offences", I cannot detect any acknowledgment of the great weight to be attached to this public interest in the deportation of "foreign criminals" (as defined). It is because of the importance attached to that interest that there needs to be something compelling to outweigh it. The reference to the "Maslov" jurisprudence (FTT decision at [31] and elsewhere) strongly indicates that the public interest here featured as simply one amongst a number of considerations in the FTT's decision – as indeed it did in the FTT's reasoning at [56] and following. No special weight was given to the public interest in deportation at all. As consequence, the FTT's error, if I may venture to encapsulate it in a sentence, lay in treating "exceptional circumstances" as meaning "unusual circumstances" rather than "compelling reasons".
33. While by no means decisive, the FTT's unhappy reference to LW as a "home-grown offender" (at [54]) is itself revealing. Although, at first blush, there is an attractive ring to this description, it cannot survive analysis. Consider, for instance, the example of a foreign national who first comes to this country at 16 and is then of good character. Over the next 10 years, he commits a string of serious offences in this country. That he is a "home-grown offender" would not for a moment stand in the way of his deportation, absent other and compelling reasons. It is the offending in this country which makes the person in question a "foreign criminal"; such offending, in this country rather than elsewhere, is the reason for deporting him, not a reason for not doing so.
34. Rightly or wrongly (given the particular facts), the FTT made much of the position of Tyrone (LW's son, mentioned above). Suffice to say that as he is now over 18, the significance attached to his interests must necessarily diminish.
35. I would not gainsay that the fact of LW's residence in this country for approximately 40 years, is a point of importance. But to found "compelling reasons" for not deporting him, considerably more is required than that provided by the FTT (or the UT). The "passage of time" point was indeed well addressed by UT Judge Jordan when granting permission to appeal to the UT; he said this:

" This raises a question as to whether the passage of time alone is exceptional and if so, at what point does it become exceptional – 20 years, 25 years, 30 years, 40 years? If so, does that render removal disproportionate whatever the offending or is it only exceptional if you are sentenced to 6 years but not if it is 10 years or 15 years? "

36. Analysis of questions such as these is not to be found in either the FTT or UT decisions. The relationship between the length of residence, the length of sentence and the gravity of the offending (consider, for example, murder, rape and terrorism) would require careful consideration on a fact specific basis, always keeping in mind that the reasons need to be compelling to outweigh the very strong public interest in the deportation of foreign criminals.
37. For these reasons, the FTT has erred in law in its approach to the new rules. In upholding the FTT's decision, the UT has likewise erred in law. Neither decision can stand. I would accordingly allow the appeal. As was common ground, if our decision is to allow the appeal, then the matter must be remitted to the UT for its reconsideration in the light of the judgments of this Court.
38. For my part, by way of postscript, I am far from saying that, on the facts of this case it might not be open to the FTT (or UT) to conclude that there are compelling reasons for not deporting LW - based especially on the fact of 40 years' (lawful) residence so as to make deportation unconscionable despite his sentence for dealing in class A drugs. But – an important but – it matters to public confidence that any such decision is reached appropriately, after due regard is had to the great weight to be attached to the public interest in the deportation of foreign criminals and with "exceptional circumstances" properly understood as meaning "compelling reasons".

Lord Justice Elias :

39. I agree.

President of the Queen's Bench Division :

40. I also agree.