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
		20 April 2016

LORD JUSTICE LAWS:

1. These are two appeals which Underhill LJ has directed to be heard together. Their principal focus is the meaning of the term "unduly harsh" in paragraph 399 of the Immigration Rules and section 117C(5) of the Nationality, Immigration and Asylum Act 2002.
2. The context is the statutory regime for the removal of foreign criminals from the United Kingdom pursuant to section 32 of the UK Borders Act 2007. A foreign criminal as defined by section 32(1) is liable to automatic deportation by the Secretary of State under section 32(5) but he may avoid deportation if in reliance on Article 8 of the Human Rights Convention he can show that the effect on a qualifying child or partner would be "unduly harsh". I will set out the statutory provisions below. There are conflicting decisions of the Upper Tribunal on the meaning of the term "unduly harsh". A number of prospective appeals in this court await our judgment in these two cases. MM is the Secretary of State's appeal with permission granted by Sir Maurice Kay on 24 April 2015. In KO the foreign criminal is the appellant with permission granted by the Upper Tribunal on 29 October 2015.
3. I turn to the relevant legislation. I need not recite the provisions of the 2007 Act relating to foreign criminals. MM and KO are both foreign criminals within the meaning of the Act. By section 33(2) a foreign criminal is not to be deported if that would breach his Convention rights. Article 8 is most often in play in such cases. Legislation which governs the administration of Article 8 in foreign criminal cases has been amended. With effect from 28 July 2014 a new Part 5A was added to the Nationality, Immigration and Asylum Act of 2002. It applies where a court or tribunal is required to determine whether a decision made under the immigration acts breaches a person's rights under Article 8 (see section 117A(1)) as well as the considerations set out in section 117B. In cases concerning the deportation of foreign criminals the court or tribunal must have regard to the considerations set out in section 117C. That section provides:

"(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal ('C') who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where—

(a) C has been lawfully resident in the United Kingdom for most of C's life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted."

4. At the same time as those provisions entered into force amendments were made to the applicable immigration rules. They built on previous amendments made in 2012. Those had sought to emphasise the strength of the public interest regarding the desirability of deportation of foreign criminals and also to secure a consistency of approach.
5. Rules 398, 399 and 399A in their amended form provide as follows:

"398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 ... 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;

(b) 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 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 and in the public interest 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, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

399. 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; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(b) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(c) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or

(d) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.

399A. This paragraph applies where paragraph 398(b) or (c) applies if –

(a) the person has been lawfully resident in the UK for most of his life; and

(b) he is socially and culturally integrated in the UK; and

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported."

6. MM is a national of Uganda born on 15 February 1983. He arrived in the United Kingdom on 19 September 1990. He and his brother were taken out of the UK in 1997 to Kenya and Uganda but returned here on 6 June 1999. At length, after an initial refusal followed by tribunal proceedings, MM was granted indefinite leave to remain on 21 January 2003. On 7 September 2012 he was convicted at the Taunton Crown Court on four counts of supplying class A drugs and sentenced to concurrent terms of 22 months' imprisonment. A notice of intention to deport was served on him on 14 October 2013.
7. He appealed to the First-tier Tribunal ("the FTT"). He has a daughter born on 17 December 2004 who is a British citizen. The FTT considered what they thought were the applicable immigration rules and concluded (paragraph 51) that paragraph 399 (in the form they were considering it) did not apply and the only question was whether there were any "exceptional circumstances that would make the public interest in deportation outweighed by other factors". At paragraph 59 the FTT placed great weight on MM's relationship with his daughter and the latter's best interests, noting the view of social services that MM's deportation would have a "devastating impact on his daughter's emotional development".
8. At paragraph 60 they state that the case is finely balanced and conclude:

"Taking into account the significant period the appellant has spent in this country, his relationship with his daughter, the best interests of his daughter and the fact that the appellant has been drug-free since going to prison, we find that it is appropriate in this case to find that the balance of proportionality weighs in favour of the appellant and that it would be a breach of his private life and his family life with his daughter to be deported from the United Kingdom."

9. I must make some further short references to the FTT determination a little later.
10. The Secretary of State appealed this decision. The Upper Tribunal found that the FTT had applied the wrong immigration rules. They had had regard to the rules as they were before 28 July 2014. On that date, as I have said, the amended rules and the new Part 5A of the 2002 Act came into force. The judgments of the FTT and the Upper Tribunal in both MM and KO postdated these changes to the statutory rules but the Secretary of State's decision in both cases predated them. In YM (Uganda) [2014] EWCA Civ 1292 this court held (see in particular paragraph 39) that in such circumstances the new provisions failed to be applied. The Upper Tribunal in MM concluded however that the FTT's error was not material. The Upper Tribunal placed particular emphasis (paragraph 12) on what it described as the "standout" finding of the FTT that MM's removal would have a "devastating impact on his daughter's emotional development". The Upper Tribunal also held in the circumstances (see paragraph 11) that "Exception 1" provided for by section 117C(4) of the 2002 Act applied. The first two conditions in the exception, length of residence and integration here, were not disputed and the FTT had (so held the Upper Tribunal) in substance applied the third condition, namely that "there would be very significant obstacles to MM's integration into the country to which MM is proposed to be deported", and so the Upper Tribunal dismissed the Secretary of State's appeal.
11. I turn to the facts of KO. KO is a national of Nigeria born on 16 August 1968. The FTT found that he arrived in the UK illegally on 21 March 1986. On 30 August 2011 he was convicted at the Central Criminal Court of conspiracy to make false representations. The offence concerned the use of bank cards and bank details and involved some £98,000-worth of fraudulent transactions. KO was sentenced to 20 months' imprisonment. His wife was a co-defendant and received a community sentence. She had a daughter form an earlier union who regards KO as her father. KO and his wife have four children of their own, all British citizens now aged between two and ten.
12. The Secretary of State made a decision to deport KO as a foreign criminal on 8 April 2014. KO appealed to the FTT. The FTT found (paragraph 40) that it would be unduly harsh to require the oldest child, KO's wife's daughter by the earlier union, to live in Nigeria, but it would not be unduly harsh to require the four children born to KO and his wife to do so (see paragraphs 42 to 44). However, the important factor was that this was a stable family (paragraph 46). The FTT judge concluded:

"53. I find it would be in the public interest not to take away the stability of this close family potentially causing damage to them if it were to be brought to an end. It would also be in the public interest to allow the family to remain financially independent.

54. In all the circumstances I find that it would be disproportionate to interfere with the rights to respect for family life shared by this family and to give effect to this deportation order despite the public interest in doing so."

13. The Upper Tribunal stated at the outset of its determination that the question to be decided was the proper construction of the phrase "unduly harsh" in section 117C of the 2003 Act and paragraph 399 of the Rules as amended:

"1. … In particular, when carrying out an assessment as to whether the impact upon a qualifying child or partner will be unduly harsh, should that assessment be informed by the seriousness of the offence committed by the foreign criminal facing deportation or is that assessment focused entirely upon the impact upon the innocent family member, with no reference whatsoever to the seriousness of the offence?"

14. The latter view that the assessment should altogether leave out of account the gravity of the foreign criminal's offence was taken by the Upper Tribunal in MAB (USA) [2015] UKUT 435. The Tribunal in KO however disagreed, giving full reasons (paragraphs 8 to 23). The Upper Tribunal concluded in KO:

"46. … As I do not adopt the MAB approach, the claimant has not established that the impact of deportation upon his children would be unduly harsh and so paragraph 399 does not apply. It has not been suggested that para 399A applies. Therefore, the public interest in his deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described on para 399. The only such matter identified that has not already been had regard to is that the claimant has now lived in the United Kingdom for a very long time, some 28 years. But that period of stay has been unlawful from start to finish and so little weight can be given to any private life established and there is nothing that comes even close to displacing the public interest arguments."

15. I should note that the children in both of these cases are "qualifying" children for the purpose of section 117C(5) (see the definition at section 117D(1)).
16. It is well settled that the Immigration Rules constitute a "complete code" for the assessment of Article 8 claims by foreign criminals faced with deportation (MF (Nigeria) [2014] 1 WLR 544, LC (China) [2014] EWCA Civ 1310). Such claims are therefore to be determined within the framework of the rules and not by way of a freestanding assessment under Article 8 (AJ (Angola) [2014] EWCA Civ 1636, MA (Somalia) [2015] EWCA Civ 48).
17. The scheme given by the terms of section 117C of the 2002 Act and the amended Immigration Rules has the following features:

(1) Foreign criminals are classified in three groups: (a) those sentenced to terms of imprisonment of four years or more, Rule 398(a); (b) those sentenced to between twelve months and four years, Rule 398(b); (c) those whose offending in the Secretary of State's view has caused serious harm or who are a persistent offender who shows a particular disregard for the law, Rule 398(c).

(2) The provisions of paragraphs 399 and 399A and the exceptions set out at section 117C(4) and (5) have no application to a criminal in the first of these three categories. Such a criminal must therefore be deported unless there are very exceptional compelling circumstances over and above the circumstances mentioned in exceptions 1 and 2 at section 117C(4) and (5).

(3) Rules 399 and 399A apply where the facts fit to the other two classes of foreign criminal. Where the facts do not fit so that neither rule in fact applies, then again the criminal is to be deported unless "there are very compelling circumstances over and above those described in paras 399 and 399A" (see the closing words of Rule 398).

18. MM and KO are foreign criminals within the second of the three categories, having received prison sentences of between one and four years. In KO, as the Upper Tribunal recognised, the primary issue is as to the meaning of "unduly harsh" in section 117C(5) and Rule 399(a) and (b). In MAB in the Upper Tribunal the headnote shows that the Tribunal held as follows:

"The phrase 'unduly harsh' in para 399 of the Rules (and s.117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned."

19. This proposition was elaborated at paragraph 66 to 73 of the determination in MAB.
20. The primary question in KO is whether that is correct or whether the term "unduly harsh" requires regard to be had to all the circumstances including the foreign criminal's immigration and criminal history. This issue also arises in the case of MM, though perhaps rather more obliquely. The FTT in that case had wrongly applied the earlier Immigration Rules. Those rules did not incorporate the expression "unduly harsh". The Upper Tribunal, as I have shown, considered that the FTT's mistake was immaterial. The Tribunal simply relied on the FTT's "standout finding" as to the impact of MM's removal on his daughter. Insofar as this was a judgment of the question whether the effect of MM's deportation would be unduly harsh, it appears to follow MAB. There is consideration of factors such as the level of MM's criminality. There is therefore a question in MM whether, applying the proper test, a finding of unduly harsh would have been appropriate and, if it would not, whether there exists very exceptional or compelling circumstances over and above the factors described in Rule 399.
21. There is another issue in MM. As I have said, the Upper Tribunal held that Exception 1 in section 117C(4) was "in substance" met. If the Secretary of State is right about unduly harsh, does this finding as to Exception 1 nevertheless survive?
22. I turn to the interpretation of the phrase "unduly harsh". Plainly it means the same in section 117C(5) as in Rule 399. "Unduly harsh" is an ordinary English expression. As so often, its meaning is coloured by its context. Authority is hardly needed for such a proposition but is anyway provided, for example by VIA Rail Canada [2000] 193 DLR (4^th) 357 at paragraphs 35 to 37.
23. The context in these cases invites emphasis on two factors, (1) the public interest in the removal of foreign criminals and (2) the need for a proportionate assessment of any interference with Article 8 rights. In my judgment, with respect, the approach of the Upper Tribunal in MAB ignores this combination of factors. The first of them, the public interest in the removal of foreign criminals, is expressly vouched by Parliament in section 117C(1). Section 117C(2) then provides (I repeat the provision for convenience):

"The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal."

24. This steers the tribunals and the court towards a proportionate assessment of the criminal's deportation in any given case. Accordingly the more pressing the public interest in his removal, the harder it will be to show that the effect on his child or partner will be unduly harsh. Any other approach in my judgment dislocates the "unduly harsh" provisions from their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case the term "unduly" is mistaken for "excessive" which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case. In the present context relevant circumstances certainly include the criminal's immigration and criminal history.
25. The issue is not advanced with respect either by the terms of the Secretary of State's guidance in the immigration directorate instructions or the learning on the use of the term "unduly harsh" in the context of internal relocation issues arising in refugee law. The IDIs are not a source of law and the asylum context of internal relocation issues is far removed from that of Rules 398 to 399. In fact authority in the asylum field emphasises the importance of context (see Januzi [2006] 2 AC 426 per Lord Bingham at paragraph 21).
26. For all these reasons in my judgment MAB was wrongly decided by the Tribunal. The expression "unduly harsh" in section 117C(5) and Rule 399(a) and (b) requires regard to be had to all the circumstances including the criminal's immigration and criminal history.
27. There remains the issue in MM as to whether the Upper Tribunal's finding in paragraph 11 on the application of Exception 1 in section 117C(4) survives my conclusion (if my Lords agree to it) on "unduly harsh". Lord Keen referred us this morning to MA (Somalia) [2015] EWCA Civ 48 in this court. At paragraph 22, referring to an earlier case, Richards LJ says this:

"Sales LJ observed that in relation to the appellant AJ (Angola) the decision of the UT was still more vulnerable since the tribunal did not refer to the new rules at all. He said that the error was clearly a material one. He went on:

'49. … There are two categories of case in which an identified error of law by the FTT or the Upper Tribunal might be said to be immaterial: if it is clear that on the materials before the tribunal any rational tribunal must have come to the same conclusion or if it is clear that, despite its failure to refer to the relevant legal instruments, the tribunal has in fact applied the test which it was supposed to apply according to those instruments The present case does not fall within either of those categories.'

I do not regard those categories as exhaustive but the general approach of Sales LJ towards the two cases under consideration in AJ (Angola) provides a useful touchstone against which to measure the question whether there was a material error by the FTT in the present case."

28. The question here is whether by force of the finding as to Exception 1 the FTT's error in MM may be regarded as immaterial given the learning which I have just cited. The FTT for its part in MM considered that the only question they had to decide was whether the case involved exceptional circumstances (see paragraphs 53 and 54). It is in my judgment plain that there was no focus whatever on Exception 1 in the amended 2002 Act for of course the FTT did not regard that as part of the legal frame with which they were concerned.
29. As regards the merits of the finding as to Exception 1, reference has been made to the earlier 2002 immigration decision in MM's case. The Upper Tribunal at paragraph 8 give this citation from the adjudicator's determination in that case:

"In balancing the public interest under which deportation would normally be appropriate for someone who has no lawful right to remain in this country against the effects that they would have on the Appellants [MM and his brother] ... I am satisfied that it would have extremely harsh and damaging consequences for both of these young people. Here they have, despite the somewhat impersonal experience of being in care for quite a long time in this country, built up a network of relationships with foster carers and their own circle of friends, as well as enjoying a particularly close relationship within their own sibling group. They both left Uganda at a comparatively young age and their whole lifestyle, as well as their cultural background, has now become firmly identified with the United Kingdom. ... I consider it reasonable to conclude that both Appellants would suffer severe shock if they now had to return to Uganda …"

30. Those findings are undoubtedly forceful but in my judgment they simply do not ask or answer the question posed by the third condition in Exception 1 as to integration in the country to which it is proposed that MM be deported.
31. It seems to me that in those circumstances, given my finding as to "unduly harsh", if my Lords agree, the appeal in MM must be allowed and the case returned to the Upper Tribunal for further determination.
32. As regards KO, I would for the reasons I have given dismiss the appeal.

LORD JUSTICE VOS:

33. I agree.

LORD JUSTICE HAMBLEN:

34. I also agree.

Order: MM: Appeal allowed

KO: Appeal dismissed