England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(Immigration and Asylum Chamber)
Upper Tribunal Judge King TD
DA/00578/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/02/2016

Lord Justice Simon:

Introduction

1. This is the Secretary of State's appeal against a determination in the Upper Tribunal (Immigration and Asylum Chamber) of UT Judge King TD, promulgated on 10 September 2013, in which he allowed an appeal by the Respondent from the Appellant's decision to deport him as foreign criminal ('the Determination').

The background facts and procedural history

2. The Respondent is a Jamaican National who has been in the United Kingdom since 2002. He married in 2006 and has a child (A) born in 2009. As at the date of the Upper Tribunal hearing in August 2013, his wife was in the early stages of pregnancy with their second child. He now has two children.
3. In July 2008 he was arrested for drug offences, and in November 2009 he was sentenced to a term of 5 years and 9 months imprisonment, following his late pleas of guilty to charges of conspiracy to supply Class A controlled drugs: Crack Cocaine and Heroin. Having served time on remand he was released from prison on licence in April 2011.
4. In a letter dated 23 August 2012 the Appellant notified the Respondent that a decision had been made to deport him in accordance with the provisions of s.32(5) of the UK Borders Act 2007. An 8-page 'Notice of Decision', giving the reasons, accompanied the letter. He was also notified of a right to appeal the decision under s.82(3A) of the Nationality, Immigration and Asylum Act 2002, and exercised that right. He argued that his deportation would be contrary to his right to a private and family life under article 8 of the ECHR; and his appeal was allowed by the First-tier Tribunal. The Appellant appealed that decision on the basis that the Tribunal had failed to consider the public interest in deporting foreign criminals and had failed to provide adequate reasons in the proportionality assessment. Judge King found that the Tribunal had made a material error of law and that its decision should be set aside and remade. It was in this way that the matter came before him for a re-determination. He too allowed the Respondent's appeal on Article 8 grounds and it is this decision which is the subject of the present appeal.
5. The Judge heard oral evidence from the Respondent, his wife and his mother-in-law (summarised at §§16-26, 27-32 and 33-36 of the Determination); and it is clear that the Judge was impressed by each of them.
6. At §§37-45 he set out the circumstances of the convictions as he understood them: the Respondent had been one of four men who had conspired over an indictment period of about 2 months to supply class A drugs. None of the conspirators were addicts and their motives had been entirely financial. At §39 the Judge noted:

Between 15 May 2008 and 16 July 2008 some 12,934 phone calls had been accepted by a particular Sim card. It seemed to the [Sentencing] Judge therefore that the conspirators were working on average a sixteen hour day, supplying class A drugs to the streets of London. So far as the launderer was concerned, £18,980 and £31,000 were recovered. So far as [the Respondent] was concerned, he was arrested at the address and headquarters of the conspiracy with cash of £5,500.24. Significantly, he had a piece of paper bearing the number which was used to ring to order drugs …

7. He also noted that there had been a Pre-sentence Report containing an OASys assessment that he was at low risk of reoffending, and which had recorded that he had taken responsibility for his crime and had undergone training while in prison. He had not offended since his release on licence.
8. At §§51-53 of the Determination the Judge referred to the decision of this Court in SS (Nigeria) v SSHD [2013] EWCA Civ 550, to which it will be necessary to return later in this judgment. He recognised (at §57) that the Respondent fell into the category of those who had been sentenced to a term of more than 4 years, and that in these circumstances Rule 398 of the Immigration Rules (as it was then worded) made clear that it would only be in exceptional circumstances that a person's right to private and family life would outweigh the public interest in deportation.
9. At §§58-60 he made three short observations which are relied on by the Appellant as showing that he had made crucial errors of law in his determination.

58. It is not argued in this case that there are such exceptional circumstances.

59. The issue therefore to be considered is whether or not Article 8 of the ECHR engaged upon general principles that had been applied before the Rules came into being.

60. In MK [(best interests of the child) India [2011] UKUT 00475 (IAC)] the appellant, his wife and two children were citizens of India and essentially it was found that that they may return to live there. The situation in this appeal is somewhat different as the appellant's wife and children are British subjects. Considerations of Zambrano and Sanade come into play.

10. After considering the various submissions made on each side the Judge considered the position of the Respondent's wife and daughter.

68. … It may be said that the situation of [the Respondent's] wife is little different from other wives who face the absence of their husbands, but in this particular circumstance I find that there is an inter emotional dependency within the family as a whole, linked to the emotional as well as the physical need for [the Respondent] to be present and the support he gives to the family as a whole. It is a family that has had difficulties and has coped but needs stability and support to maintain itself further.

69. It is also right to note that the appellant's offending was some time ago. He has not reoffended. The offence, albeit extremely serious and distressing, was however of relatively short duration during that two month period. The offence was committed out of greed which [the Respondent] sincerely regrets. In terms of deterrent and punishment the appellant received a very substantial prison sentence indeed.

70. This is not an easy case to determine. It seems to me, and I so find, that the removal of the appellant would adversely affect the lives not only of [his daughter] but also his wife and her mother and potentially brother-in-law. As I have indicated I do not detect from their evidence any concealment or lack of candour but rather a family endeavouring to cope with the situation into which it has been placed.

71. The presence of the appellant in the family will bring stability and a chance for a family to be supported and to develop, if not so much in financial terms but in emotional and human terms.

72. Doing the best that I can therefore to balance the interests of the family with those of the public as so eloquently expressed in the Rules, I find in the circumstances of this particular case, on the findings of fact which I have made, that removal of the appellant would in the circumstances be disproportionate and in breach of the fundamental human rights, not only of the appellant but of those emotionally and physically linked with him.

In these circumstances the Judge allowed the Respondent's appeal.

11. The Appellant sought permission to appeal on three grounds. First, the Judge had failed to apply the law as set out in s.32 of the UK Borders Act 2007 and the approach set out in SS (Nigeria) which made clear that a foreign criminal's claim to resist deportation on Article 8 grounds needed to be very strong to prevail over the public interest in deporting foreign criminals. Second (and alternatively) the Tribunal erred in exercising an 'Inquisitorial Function' in assessing the best interests of a child ('the Inquisitorial Function point'). Thirdly, the Court had erred in its view that the case of Zambrano (European Citizenship) [2011] ECtJ (C-34/09) 'came into play,' ('the Zambrano point'). These grounds were developed in a skeleton argument dated 10 December 2013 drafted by Counsel previously instructed by the Appellant.
12. Following refusal of permission to appeal on the papers on 16 January 2014, the application was renewed orally and, on 13 May 2014 Maurice Kay and Aikens LJJ granted permission to appeal. In view of the procedural point taken on behalf of the Respondent, I refer in part to the remarks of Aikens LJ when giving permission.

The main basis upon which the application is made, and the basis upon which I am prepared to give permission in this second appeal, is that it is at the very least highly arguable that Judge King failed to take account of the principle set out by Laws LJ in SS (Nigeria) … at paragraphs 48-55 under the general heading, 'The Deportation of Foreign Criminals'. The effect of his decision is that it recognises that there has been a sea change as a result of the 2007 Act setting in place the provisions for the deportation of 'foreign criminals'. What was executive policy has now become legislative policy. This has resulted in a change in the balance that there has to be in giving effect to this legislative policy when dealing with issues of proportionality.

13. On 9 June 2014 Ms Patry's skeleton argument on behalf of the Appellant was lodged with the Court, in which the three points in the grounds of appeal were developed.
14. The appeal was due to be heard in February 2015 and Ms Patry sent a Case Law Update to the Court in preparation for the appeal. This document referred to a number of recent Court of Appeal decisions which were relied on to show that it was an error of law for a tribunal to treat the new Immigration Rules as merely the first of a two-stage assessment, with the second stage conducted in the light of existing article 8 jurisprudence.
15. A skeleton argument prepared by Counsel previously instructed on the Respondent's behalf was received by the Court on 5 February 2015. Unfortunately, the hearing had to be adjourned due to the illness of the Appellant's Counsel.
16. On the morning of the present hearing of the appeal the Court received a skeleton argument prepared by Mr Sharma, for the Respondent. We understand that Ms Patry received it late in the evening of 19 January 2016. In this document Mr Sharma raised a number of wholly new points. He submitted that it was not open to the Appellant to rely on an argument that the Judge had erred in carrying out a two-stage approach since no permission had been given to argue the point. In relation to both the Inquisitorial Function point and the Zambrano point he raised new arguments and relied on new authorities neither of which had been set out in the Respondent's previous skeleton argument. Ms Patry objected to this late development which, she submitted, required her to take instructions, which could not be done at short notice.
17. One of the explanations for this late development was said to be that the Respondent's solicitors had only recently been informed of the hearing date, despite the Court Records showing that the notice of hearing was sent as long ago as March 2015. The other explanation was said to be the late receipt of the Appellant's composite skeleton argument.
18. The fact that the first hour of the hearing was taken up with arguments about how the appeal should proceed and whether there should be a further adjournment in the light of Mr Sharma's new arguments, and with the handing up of new authorities which the Appellant relied on and which should have been in the Court bundle, shows clearly that the parties had failed to prepare the appeal as they should. While I would accept that this area of the law generates a considerable amount of authority, the preparation on each side was unsatisfactory, despite the very adequate time available to them.

The law

19. Section 3(5) of the Immigration Act 1971 provided that a person who is not a British citizen is 'liable to deportation from the United Kingdom if (a) the Secretary of State deems his deportation to be conducive to the public good'.
20. As Aikens LJ noted when giving permission to appeal, section 32 of the UK Borders Act 2007 established a legislative policy in relation to the deportation of foreign criminals.

(4) For the purposes 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)

21. Section 33 provides:

(1) Section 32(4) and (5) -

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

…

(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) … [Section] 32(4) applies despite the application of Exception 1 …

22. A 'foreign criminal' is defined in s.32(1) as 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. Condition 1 is that the person is sentenced to a period of at least 12 months.
23. Section 55 of the Borders, Citizenship and Immigration Act 2009 sets out the Appellant's duty regarding the need to safeguard and promote the welfare of children when carrying out her functions in relation to immigration, asylum or nationality.
24. Rules 398, 399 and 399A were introduced into the Immigration Rules HC 395 in 2012 in order to provide criteria for the assessment of article 8 rights in relation to criminal deportation cases.
25. The Rules provide:

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;

…

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 circumstances.

26. Paragraph 398(b) applies to persons convicted of an offence for which they have been sentenced to a term of less than 4 years and more than 12 months imprisonment. Paragraph 398(c) applies where the deportation from the UK is conducive to the public good and in the public interest, because the Secretary of State is of the view that their offending has caused serious harm or they are persistent offenders who show a particular disregard for the law.
27. Paragraphs 399 and 399A apply where Paragraphs 398(b) or (c) apply; and are not directly material to the present case because the Respondent's case was determined by reference to Paragraph 398(a) since he was sentenced to a term of imprisonment of more than 4 years.
28. However, the terms of Paragraph 399(a)(i)(b) throw light on the assessment of 'exceptional circumstances.'

This paragraph applies where paragraph 398(b) or (c) applies if –

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK and

(i) the child is a British Citizen ..

…

and

…

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported.

29. On 22 May 2013 the Court of Appeal gave judgment in the case of SS (Nigeria) v SSHD [2013] EWCA Civ 550 to which, as noted above, the Upper Tribunal referred. SS had been sentenced to 3 years imprisonment, and the case therefore fell within Rule 399(b). At [13]-[32] Laws LJ carried out a thorough analysis of the relationship between the statutory provisions and the Rules on the one hand, and the affected person's rights under article 8 on the other.
30. At [37]-[42] he considered the nature of proportionality which he described as 'a primary touchstone of legitimacy' (importing the concept of 'minimal interference' in article 8 rights), and the margin of discretionary judgment exercised by the decision maker.
31. At [43]-[46] Laws LJ described two characteristics which apply to article 8 cases involving children: the first was that the interests of the child are a primary consideration; and the second, which applied to all removal cases, was that there was no class of exceptionality (in other words, there was no class of case where the law stipulated that an exceptional article 8 case must be shown in some cases but not in others).
32. He then conveniently summarised these matters and drew together certain conclusions from them.

47. It is worth drawing these general considerations together. (1) The principle of minimal interference is the essence of proportionality: it ensures that the ECHR right in question is never treated as a token or a ritual, and thus guarantees its force. (2) In a child case the right in question (the child's best interests) is always a consideration of substantial importance. (3) Article 8 contains no rule of 'exceptionality', but the more pressing the public interest in removal or deportation, the stronger must be the claim under Article 8 if it is to prevail. (4) Upon the question whether the principle of minimal interference is fulfilled, the primary decision-maker enjoys a variable margin of discretion, at its broadest where the decision applies general policy created by primary legislation. This approach strikes two balances: the balance between public interest and private right, the search for which 'is inherent in the whole of the [ECHR] ...' (see, amongst many statements to the same effect, Sporrong v Sweden (1982) 5 EHRR 85, paragraph 69); and the constitutional balance between judicial power and the power of elected government, and in particular the power of the legislature.

33. On 8 October 2013, shortly after the Upper Tribunal decision in the present appeal, judgment was given in MF (Nigeria) v. SSHD [2013] EWCA Civ 1192. MF had been sentenced to 18 months imprisonment, and the case therefore fell within §398(b) or (c), see [35]. Although the decision in SS (Nigeria) is not referred to in the case, there is no inconsistency of approach. At [41] the Court accepted the submission that it is only exceptionally that foreign criminals will succeed in showing that their rights under article 8(1) trump the public interest in their deportation.
34. At [42] the Court said this:

… 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.

The arguments of the parties

35. For the appellant, Ms Patry submitted that the Judge, having referred to SS (Nigeria) and cited from it extensively, had failed to apply the principles set out in the case. Instead of recognising that the public interest is injured if the criminal's deportation is not effected, and that such a result could only be justified by a very strong article 8 claim, the Judge failed to weigh the Respondent's article 8 claim on this basis. Having accepted that the Rules made clear that it was clearly in the public interest that foreign criminals who were sentenced to 4 years imprisonment or more should be deported unless there were exceptional circumstances, the Judge carried out an article 8 assessment without any recognition that the article 8 case had to be 'exceptionally strong' or 'compelling' to outweigh the public interest in deportation. Furthermore, the Judge adopted the 'two-fold process' as set out in MK (best interests of the child) India [2011] UKUT 00475 which, she submitted, was wrong in principle since the MK case was decided before the relevant Rules had come into force and the approach had been disapproved in subsequent cases.
36. Mr Sharma, for the Respondent, while submitting that it was not open to the Appellant to advance the appeal on the ground that the Judge had conducted a two-stage assessment since no permission had been given to appeal on the point, appeared to accept that the Judge did not weigh the article 8 claims on the basis that they had to be shown to be compelling in order to outweigh the public interest in deportation. However, he submitted that if one looked at the Judge's assessment there were in fact strong article 8 claims. He submitted that in this respect there were similarities to the case of MF (Nigeria) where the Court of Appeal (at [50]) had found that the Upper Tribunal had failed to recognise that the Rules were a complete code but accepted that it carried out a meticulous assessment of factors weighing in favour of deportation and those weighing against, and dismissed the Secretary of State's appeal.

Discussion

37. Since the decisions in SS (Nigeria) and MF (Nigeria), there have been a number of decisions of this Court that bear on the issues which arise on this appeal. Among these, two may be noted: LC (China) v. Secretary of State for the Home Department [2014] EWCA Civ 1310 and AJ (Angola) v. Secretary of State for the Home Department [2014] EWCA Civ 1636. In these cases the Court held that the Upper Tribunal had erred in law, not by ignoring the Immigration Rules, but by treating them as the first stage in a two-stage assessment, with the second stage consisting of the Upper Tribunal's interpretation of the existing article 8 jurisprudence. In LC (China) at [17] Moore-Bick LJ made clear that making an article 8 assessment outside the ambit of the Rules on deportation was wrong in law.

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, a weight and importance neither of which seem to have been appreciated by the First-tier Tribunal in this case. The second is that it is wrong to consider the question of infringement of article 8 rights outside the terms of the Immigration Rules, as the First-tier Tribunal did.

38. There are passages in the judgment of Sales LJ in AJ (Angola) to similar effect:

22. It is clear from the Upper Tribunal's decision that it first sought to apply the new rules, and then looked to see if there were other reasons under Article 8, outside the new rules, why leave to remain should be granted. This was reasoning on the model suggested by the House of Lords in Huang.

23. However, as the judgment of this Court in MF (Nigeria) explains, this was an error because the new rules, promulgated after Huang, constitute a complete code for consideration of foreign criminal cases contained within the Immigration Rules. In this regard, the new rules constitute a discrete section of the Immigration Rules unlike other parts of the Rules, in relation to which the Secretary of State retains a discretion which may be exercised outside the Rules: see R (Nagre) v. Secretary of State for the Home Department [2013] EWHC 720 (Admin).

39. It follows from these cases that the approach adopted by the Upper Tribunal in the present case was erroneous: the case should have been considered in the light of the changes brought about in the Immigration Rules or, as Sales LJ expressed it in AJ (Angola) at [39] and [40], there should have been an assessment of Convention rights 'through the lens of the new rules'. It is clear that the adoption of this erroneous approach led the Judge into further error: he failed to recognise that the public interest in deportation of foreign criminals and article 8 rights are not held in a suspenseful balance. As this Court has repeatedly reiterated, albeit using different language, the scales are weighed in favour of deportation unless 'there are circumstances which are sufficiently compelling (and therefore exceptional) to outweigh the public interest in deportation', per Lord Dyson MR in MF (Nigeria) at 46; there must be 'something very compelling' to outweigh that public interest, per Richards LJ in MA (Somalia) v. Secretary of State for Home Department [2105] EWCA Civ 48 at [17].
40. The Upper Tribunal's conclusions at §§70-72 of the Determination highlight the erroneous approach; and in my view the failure to apply the Rules properly constituted an error of law.
41. I have already referred to Mr Sharma's submission that even if the Upper Tribunal did not err in law, it had nevertheless made findings in relation to article 8 which were sufficiently compelling to outweigh the public interest in deportation. However, in my view, there are a number of difficulties with this submission.
42. First, although considerable weight was attached by the Judge to the article 8 rights of the Respondent and his family, and to the best interests of his child A, in the light of Rules 398 and 399 (a)(i)(b) the 'very compelling circumstances' which the Secretary of State must take into account are circumstances 'over and above' the fact that it would be 'unduly harsh for the child to remain in the UK without the person to be deported.' This applies to those convicted of an offence for which they have been sentenced to less than 4 years and more than 12 months (in other words a lighter sentence reflecting less serious criminality), but it plainly throws light on what may be sufficiently compelling circumstances for the purposes of Rule 398.
43. Second, the Judge embarked on an analysis of the offending in §69 of the Determination which was not open to him. In general, the facts of the conviction and sentence will be sufficient: matters of mitigation will be taken into account at the sentencing hearing. In the present case the Judge's investigation of the facts was bound to be incomplete (there was not even a full transcript of the sentencing remarks). Furthermore the offending was not historic and neither was it 'of short duration', the fact that the Respondent had not offended on licence was of little relevance and the fact that he had received a very substantial sentence was not, in the circumstances, a matter to be taken into account in his favour.
44. In my judgment, this was not, on the Upper Tribunal's present findings, a case in which the article 8 rights of the Respondent and his close family were compelling. The Upper Tribunal's failure to look at the case through the lens of Rule 398 led it to adopt an insufficiently rigorous approach to article 8, and the decision it reached cannot be said to be the only decision open to a rational tribunal on the evidence before it. It follows that the error of law was material.
45. On this basis I would allow the appeal.
46. I would however wish to add one or two points in the light of the way the case was argued.
47. First, it is implicit from what I have said above, that I reject Mr Sharma's submission that the Court should not permit the Appellant to argue that the adoption of the two-stage approach was wrong in law. The point is inextricably bound up with the primary point on this appeal and, as Vos LJ observed in the course of argument, this Court cannot simply ignore the law as it has developed since the date of the Determination.
48. Secondly, in relation to the Inquisitorial Function point, we did not hear full argument for the reasons already outlined and I would confine myself to two observations. First, I agree with the views of the Court in SS (Nigeria) that the circumstances in which a tribunal would need to satisfy itself as to the interests of a child by an inquisitorial procedure will be extremely rare, see Laws LJ at [38]-[42], Black LJ at [60] and Mann J at [66]. Secondly, in the present case the Upper Tribunal allowed itself to be drawn into a highly subjective view of the family dynamics, as illustrated by two paragraphs in the Determination.

34. [The Respondent's mother-in-law] spoke of the bond that exists between [the Respondent] and [A]. She described the games that they play together and the response which she makes to her father. He plays with [A] for hours.

35. It is right to note that all three witnesses and [A] were present at one stage in the hearing room and I had the opportunity of observing the girl hugging both her mother and her father. There is no reason to doubt the affection that has been described.

49. If these observations carried any weight with the Judge, and it is difficult to see why otherwise he made them, they should not have done so. The absence of natural feelings between father and child may be significant, but otherwise it is to be assumed. As McFarlane LJ pointed out during the submissions, assessments in relation to family dynamics may not be easy even when carried out by those trained and experienced in carrying them out. In the present case it was common ground that the Respondent was not A's primary carer.
50. Thirdly, although the Zambrano point figured in the course of argument I am far from persuaded that it bears the significance that the Appellant submitted that it did. Although the Upper Tribunal found that 'Zambrano came into play', it does not appear to have played a significant part in the Judge's analysis. No one was suggesting that A was dependent on the Respondent for the exercise of her EU rights of residence or that his removal would deprive her of the effective enjoyment of the substance of her rights as an EU citizen. However, since we have not heard full argument on what the Judge meant by the phrase 'came in play' or the extent to which the Zambrano case should or should not have borne on the assessment, it is unnecessary and undesirable to say anything further about the point.

Conclusion

51. I would allow the appeal and remit the case to the Upper Tribunal for a decision to be made in the light of this judgment and the other judgments to which I have referred.

Lord Justice Vos:

52. I agree.

Lord Justice McFarlane:

53. I also agree.