ON APPEAL FROM
The Upper Tribunal
(Immigration and Asylum Chamber)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LADY JUSTICE GLOSTER
| IT (Jamaica)
|- and -
|The Secretary of State for the Home Department
Christian Howells (instructed by NLS Solicitors) for the Respondent
Hearing date: 7 July 2016
Crown Copyright ©
LADY JUSTICE ARDEN:
ISSUE: WEIGHT TO BE GIVEN TO THE PUBLIC INTEREST IN AN APPEAL AGAINST A REFUSAL TO REVOKE A DEPORTATION ORDER AGAINST A FOREIGN CRIMINAL
RELEVANT LEGISLATIVE FRAMEWORK
(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless–
(a) he thinks that an exception under section 33 applies,
(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or
(c) section 34(4) applies.
Revocation of deportation order
390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:
(i) the grounds on which the order was made;
(ii) any representations made in support of revocation;
(iii) the interests of the community, including the maintenance of an effective immigration control;
(iv) the interests of the applicant, including any compassionate circumstances.
390A. 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.
391. In the case of a person who has been deported following conviction for a criminal offence, the continuation of a deportation order against that person will be the proper course:
(a) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order, or
(b) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of at least 4 years, at any time,
Unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors.
391A. In other cases, revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.
Deportation and Article 8
A398. These rules apply where:
(b) a foreign criminal applies for a deportation order made against him to be revoked.
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
(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…
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
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) 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."
117C Article 8: additional considerations in cases involving foreign criminals
(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.
… [exception 1, not relevant]
(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…."
A'S CONVICTION, DEPORTATION AND APPLICATION FOR REVOCATION
DECISION OF THE FIRST-TIER TRIBUNAL
Parliament has declared that the deportation of foreign criminals is in the public interest. This appellant is a foreign criminal: he has been convicted on his own confession of supplying Class A drugs, offences which the public consider abhorrent and which are deplored. (Determination, paragraph 28)
34. The consequences of deportation for [A] are harsh: he is separated from his wife and child and step-children but we find that is the foreseeable consequence of his serious criminal behaviour.
All other things being equal, those consequences could be mitigated by the Sponsor and [R] joining [A] in Jamaica and living with him there, alternatively by both visits and regular contact by telephone and other means.
It is clear from the decision of the Upper Tribunal in Sanade however that as the Sponsor and [R] are British citizens and therefore citizens of the European Union, it is not possible to require them to relocate outside the European Union. Moreover, although the Sponsor has visited [A] three times in the last four years [R] has not done so because of a phobia of flying. As a result [R] has not seen his father for over four years and has no prospect of doing so for the remainder of his childhood while the deportation order remains in effect.
Given [R]'s condition and educational needs we find that the consequences of not revoking the deportation order are unduly harsh and we allow the appeal.
DECISION OF THE UPPER TRIBUNAL
COUNSEL'S SUBMISSIONS AND MY REASONS FOR ALLOWING THIS APPEAL
15…It is true that…the non-applicability of section 33 in a post-deportation case means that Parliament has not made any express provision about what the public interest requires in such a case, so that the Secretary of State's discretion is unfettered by statute. But if it has been established when the original order was made that none of the exceptions specified in section 33 applies, and accordingly that the public interest requires the making of a deportation order, that does not cease to be the case the moment the foreign criminal leaves the country: it will, for essentially the same reasons, be contrary to the public interest for them to come back. No doubt it may be right to put a limit on the period for which the public interest requires their continued exclusion, but that is another matter and is addressed in the Immigration Rules…
24…It does not, however, in my view follow that paragraph 391 requires a fundamental difference in approach in considering post-deportation revocation applications from that which is followed in considering pre-deportation applications under paragraphs 390A/398–399A. It is true that the structure of paragraphs 398 (at the relevant time) and 391 is different. In the case of the former the Secretary of State has set out herself to formulate the approach required by article 8, whereas in the case of the latter she has stated her policy but acknowledged that it should not apply where that would lead to a breach of the ECHR (in practice, article 8). It is also true that there are some minor differences of wording.
But the difference in drafting structure does not require a different approach as a matter of substance, since we know from [MF(Nigeria) v SSHD  1WLR 544] that the exercise required by paragraph 398 is the same as that required by article 8.
Likewise, while the use in the sweep-up exception of the phrase "other exceptional circumstances [involving] compelling factors" no doubt implies that it is only in such circumstances that the Secretary of State's general policy will be displaced by article 8, that too is consistent with the approach in MF.
As for the differences in wording, they may be vexing to the purist but they are plainly not intended to reflect any difference of substance.
The exercise required in a case falling under paragraph 391 is thus broadly the same as that required in a case falling under paragraph 390A or paragraph 398.
Decision-takers will have to conduct an assessment of the proportionality of maintaining the order in place for the prescribed period, balancing the public interest in continuing it against the interference with the applicant's private and family life; but in striking that balance they should take as a starting point the Secretary of State's assessment of the public interest reflected in the prescribed periods and should only order revocation after a lesser period if there are compelling reasons to do so. (footnotes removed, paragraph breaks added)
51…. It is only where the tribunal is persuaded that, exceptionally, there are very compelling reasons which outweigh the public interest in the order continuing for the full prescribed term that such revocation may be allowed...".
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  193 DLR (4th) 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.
Lord Justice Jackson
Lady Justice Gloster