ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(Upper Tribunal Judge Kekic
Deputy Upper Tribunal Judge Rintoul)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LADY JUSTICE KING
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Appellant/Respondent|
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Ms K Bretherton QC (instructed by the Government Legal Department) appeared on behalf of the Appellant/Respondent
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LORD JUSTICE JACKSON:
Part 1. Introduction,
Part 2. The facts,
Part 4. Decision
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
(i) Mr Dennis ceased taking drugs after his conviction in January 2007. By May 2012 his risk of re-offending was low.
(ii) AT was the breadwinner of the family. She worked very long hours. Mr Dennis played a key role in looking after the children. That included feeding them, taking them to and from school and so forth.
(iii) The short period of Mr Dennis' absence in March 2012 because of immigration detention caused complete chaos within the family. AT's businesses stopped functioning and the children's behaviour deteriorated, as confirmed in letters from their school.
"It is because of the particularly close relationship between the appellant and the children, the vital role he plays in their upkeep and their own heavy reliance on and love for him, that I find their best interests are for him to remain with them and for their family life to continue as it is. This is not a paramount interest but it is a primary one. The children are of an age when they need their parents around them. The exchange of letters, emails and telephone calls at their age would be a wholly inadequate alternative to having their father there for them every day."
"That brings me to the balancing exercise. I have endeavoured in this determination to set out all the factors for the Secretary of State and for the appellant and to reach a balanced and fair judgment. This is not the usual ordinary case of a convicted non national who flouts the laws of this country, has contributed little to it and who has had several opportunities to put his case to the authorities. This is a man whose case has not been properly dealt with by the Secretary of State, who deportation was made without his knowledge and who never had the chance to put all the representations one would have expected him to have made to the Secretary of State before she took steps against him. It is also a case where the appellant has made good use of the rehabilitation programme offered to him, has mended his ways and stayed drug free for several years. Importantly it is a case where the appellant's deportation would severely affect the lives of four British born nationals. It is for all these reasons that I conclude that the deportation order should be revoked under paragraph 391."
(i) The Upper Tribunal failed to have regard to the new Immigration Rules concerning the deportation of foreign criminals.
(ii) The Upper Tribunal failed to apply the relevant authorities concerning ECHR article 8 in cases concerning foreign criminals.
(iii) The Upper Tribunal failed to have regard to the important public interest in deporting foreign criminals.
There is a high degree of overlap between grounds (ii) and (iii).
"Where paragraph 398 applies the Secretary of State 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 maintaining the deportation order will be outweighed by other factors."
"40. Does it follow that the new rules have effected no change other than to spell out the circumstances in which a foreign criminal's claim that deportation would breach his article 8 rights will succeed? At this point, it is necessary to focus on the statement that it will only be 'in exceptional circumstances that the public interest in deportation will be outweighed by other factors'. Ms Giovannetti 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 paras 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. In view of the strictures contained at para 20 of Huang  2 AC 167, it would have been surprising if the Secretary of State had intended to reintroduce an exceptionality test, thereby flouting the Strasbourg jurisprudence. At first sight, the choice of the phrase 'in exceptional circumstances' might suggest that this is what she purported to do. But the phrase has been used in a way which was not intended to have this effect in all cases where a state wishes to remove a foreign national who relies on family life which he established at a time when he knew it to be 'precarious' (because he had no right to remain in the UK). The cases were helpfully reviewed by Sales J in R (Nagre) v Secretary of State for the Home Department  EWHC 720 (Admin). The fact that Nagre was not a case involving deportation of a foreign criminal is immaterial. The significance of the case law lies in the repeated use by the European Court of the phrase 'exceptional circumstances'.
42. At para 40, Sales J referred to a statement in the case law that, in 'precarious' cases, 'it is likely to be only in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8'. This has been repeated and adopted by the European Court in near identical terms in many cases. At paras 41 and 42 he said that in a 'precarious' family life case, it is only in 'exceptional' or 'the most exceptional circumstances' that removal of the non-national family member will constitute a violation of article 8. In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, 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 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'.
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 (para 38)."