ON APPEAL FROM UTJ LANE
Upper Tribunal Immigration and Asylum Chamber
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BURNETT
| E J A
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Amanda Weston (instructed by Sutovic & Hartigan) for the Respondent
Hearing dates: 9 March 2016
Further written submissions 5 and 12 December 2016.
Crown Copyright ©
Lord Justice Burnett :
"(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, andc) 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.
(3) Condition 2 is that –a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c.41) (serious criminal), andb) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c.77), 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).
(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, orc) section 34(4) applies;"
Section 33(2) recognises an exception to the obligation to deport a foreign criminal where deportation would breach that offender's rights under the Convention.
"398. Where a person claims that their deportation would be contrary to the UK's obligation 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.
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 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would not be reasonable to expect the child to leave the UK; and
(b) there is no other family member who is able to care for the child in the UK; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and
(i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and
(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK.
399A. This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would go if required to leave the UK; or
(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has not ties (including social, cultural of family) with the country to which he would go if required to leave the UK.
399B. Where paragraph 399 or 399A applies limited leave may be granted for periods not exceeding 30 months. Such leave shall be given subject to such conditions as the Secretary of State deems appropriate. Where a person who has previously been granted a period of leave under paragraph 399B would not fall for refusal under paragraph 322(1C), indefinite leave to remain may be granted."
"Proportionality, the absence of an "exceptionality" rule, and the meaning of "a primary consideration" are all, when properly understood, consonant with the force to be attached in cases of the present kind to the two drivers of the decision-maker's margin of discretion: the policy's source and the policy's nature, and in particular the great weight which the 2007 Act attributes to the deportation of foreign criminals."
"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 national 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."
"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'."
"Even if we were wrong about that, it would be necessary to apply a proportionality test outside the new rules as was done by the UT. Either way, the result should be the same. In these circumstances, it is a sterile question whether this is required by the new rules or it is requirement of the general law. What matters is that it is required to be carried out if paras 399 or 399A do not apply."
"The implication of the new rules is that rules 399 and 399A identify particular categories of case in which the Secretary of State accepts that the public interest in the deportation of the offender is outweighed under article 8 by countervailing factors. Cases not covered by those rules (that is to say, foreign offenders who have received sentences of at least four years, or who have received sentences of between 12 months and four years but whose private or family life does not meet the requirements of rules 399 and 399A) will be dealt with on the basis that great weight should generally be given to the public interest in the deportation of such offenders, but that it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in SS (Nigeria). The countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders, as assessed by Parliament and the Secretary of State. The Strasbourg jurisprudence indicates relevant factors to consider, and rules 399 and 399A provide an indication of the sorts of matters which the Secretary of State regards as very compelling. As explained at para 26 above, they can include factors bearing on the weight of the public interest in the deportation of the particular offender, such as his conduct since the offence was committed, as well as factors relating to his private or family life. Cases falling within the scope of section 32 of the 2007 Act in which the public interest in deportation is outweighed, other than those specified in the new rules themselves, are likely to be a very small minority (particularly in non-settled cases). They need not necessarily involve any circumstance which is exceptional in the sense of being extraordinary (as counsel for the Secretary of State accepted, consistently with Huang  2 AC 167, para 20), but they can be said to involve "exceptional circumstances" in the sense that they involve a departure from the general rule."
"The critical issue for the Tribunal will generally be whether, giving due weight to the strength of the public interest in the deportation of the offender in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed – very compelling, as it is put in MF (Nigeria) – will succeed."
"The policies adopted by the Secretary of State, and given effect by the Rules, are nevertheless a relevant and important consideration for tribunals determining appeals brought on Convention grounds, because they reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. In particular, tribunals should accord respect to the Secretary of State's assessment in the strength of the public interest in the deportation of foreign offenders, and also consider all factors relevant to the specific case before them … It remains for them to judge whether, on the facts as they have found them, and giving due weight to the public interest in deportation in the case before them, the factors brought into account on the other side lead to the conclusion that deportation would be disproportionate."
The Facts and the F-tT Decision
"95. In determining the weight that should be given to the public interest in the prevention of disorder and crime it is accepted that the sentence imposed on the appellant of four years' imprisonment does fall within paragraph 398 of the Immigration Rules and this being the case it is accepted that it will only be in exceptional cases that the public interest will be outweighed by other factors."
The F-tT had earlier noted that the argument advanced on behalf of EA was that it should have regard "to the overall case including cumulative factors of both family and private life" and it then went on to consider Strasbourg jurisprudence on the various matters to be weighed in the balance in an Article 8 claim relating to the removal of a foreign national offender. The F-tT referred to a number of mitigating factors relating to the most recent drugs offending and noted that a post-conviction risk assessment suggested that the risk of reoffending had fallen to "medium" from "medium to high" at the time of sentence. It recognised that EA appeared to have kicked his drugs habit whilst in prison. The purpose in identifying these features appears to have been to suggest that, serious though the offending was, the public interest in deportation had reduced. The F-tT found that EA did not reside with the two young children or their mother prior to the commencement of his term of imprisonment. It noted that their mother had invited EA to maintain contact with the two boys by visiting them at her home when he was released. She had made it clear that she did not want them staying with him, or him with her. So far as M was concerned, the F-tT noted that she suffered from "a self-described depressive condition". It confirmed that she had not visited her father within the previous twelve months. They had not lived together since she was seven years old. It was M's grandmother's opinion that she would be "devastated" if EA had to return to Sierra Leone. The F-tT then continued:
"90. The key issue is that on the basis of all the evidence… despite the absence of contributory funding by the appellant and the long term non-residence of the appellant with any of the three children, we find that there is a meaningful relationship between the appellant and each of the three children and that the appellant does have established family ties with the three children which amount to family life.
91. … we find that there is an open and ongoing contact which facilitates the maintenance of family life between the appellant and the two boys.
92. As regards the interference with family life we find that the appellant's removal from the UK will interfere with his ability to maintain family life with the three children. Notwithstanding that M remains under the care of her grandmother… we find that the removal of the appellant would have a greater impact on the day to day care needs of M than the impact caused by the appellant's continuing period of custody. It is apparent from her evidence… that M even at the age approaching eighteen attaches considerable importance to her relationship with her father that would not be sufficiently maintained by reliance on modern forms of communication.
93. The position regarding the two boys is similar. Whilst it is accepted that there has been no cohabitation it nevertheless is the case that a relationship has been maintained during custody – more with B than F. There is evidence from family members… which we found reliable that even before he went to prison the appellant was in daily contact with the boys and that his removal would "hurt" the two boys. There is a continuity of contact prior to prison and whilst in prison which we find leads to the conclusion that removal of the appellant would impact upon the contact and relationship needs of the two boys and have an adverse consequence to their development. …
96. As regards the two boys, we have reached the conclusion that there are exceptional circumstances for the following reasons. First while the two boys general welfare and day to day needs have been met by (their mother) we find that such primary care does not address the disruption that would be caused to the boys relationship with the appellant arising from his deportation. The issue is not one of financial assistance or residence but the significant interference with ongoing contact caused by the prevention of daily visits to the boys by the appellant. …
97. As regards M it is apparent that her present quite vulnerable psychological state will be further damaged in the event she is deprived of the reasonable expectation of regular contact with her father upon his release from custody. It is accepted that contact with M has been maintained by visits, calls, cards and letters and her day welfare and needs have been provided by (her Grandmother), but it remains the case that her emotional and physical welfare will be undermined if the appellant is removed to Sierra Leone. In the case of all three children we find that there are exceptional circumstances which outweigh the public interest in the deportation of the appellant and find that the appellant's claim to family life under Article 8 succeeds."
i) It would benefit the two small boys to have continuing contact with their father in the United Kingdom;
ii) It would benefit M to have similar continuing contact for the remaining few weeks of her childhood (and beyond), particularly given the opinion of her grandmother that EA's removal would be "devastating" in the context of M's self-reported vulnerability;
iii) The appellant's deportation would have an adverse impact on each of the children;
iv) Despite the public interest in the prevention of disorder and crime, there were mitigating factors in the offending and the current risk of re-offending was medium;
v) Taken together, these features of the case gave rise to exceptional circumstances for the purposes of paragraph 398.
Lord Justice Vos