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)
DA006002013

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/07/2017

Lord Justice Sales:

1. This is a very stale appeal by the Secretary of State in a case involving a person (the respondent) who qualifies as a foreign criminal for the purposes of immigration law.
2. The respondent is a national of Zimbabwe, born in 1979. He came to the United Kingdom in February 2002 for a family visit, but was refused leave to enter. He claimed asylum and was granted temporary admission. He failed to provide information sought by the Secretary of State and his claim for asylum was refused in 2004 on the basis of administrative non-compliance. However, he remained in the United Kingdom and eventually his case was re-considered in 2009 as part of the Secretary of State's legacy programme. Meanwhile, the respondent had married Joice Temba, another national of Zimbabwe, and they had had two daughters together, born in 2004 and 2007. On 19 June 2009, the respondent, Ms Temba and the two children were granted indefinite leave to remain in the United Kingdom. The children became British citizens in December 2011. Later, in May 2013 the respondent and Ms Temba had a third child.
3. In 2008, while living with Ms Temba, the respondent had a relationship with another woman, Miss Phirie, by whom he had a child. The relationship ended in February 2009, but the respondent refused to recognise this. On 2 October 2011, he visited Miss Phirie at her home and assaulted her. Thereafter he made threats against her.
4. On 4 January 2012, the respondent pleaded guilty at Luton and South Bedfordshire Magistrates Court to charges of assault occasioning actual bodily harm, using violence to secure entry to premises and an offence of harassment. He was referred to the Crown Court for sentencing. On 25 January 2012, he was sentenced to 20 months' imprisonment in total and was made subject to a restraining order. Aggravating factors included an absence of remorse and of any sense of responsibility for the offending, as set out in the pre-sentencing report.
5. On 9 March 2012, the Secretary of State served a notice that she considered that the respondent was liable to automatic deportation as a foreign criminal, pursuant to section 32 of the UK Borders Act 2007. The respondent made representations in opposition to this, relying primarily on his right to respect for his family and private life under Article 8 of the European Convention on Human Rights.
6. By a decision letter dated 6 March 2013, the Secretary of State dismissed his Article 8 claim and gave notice that automatic deportation pursuant to section 32 of the 2007 Act would follow.
7. The respondent appealed to the First-tier Tribunal ("FTT"). In a decision promulgated on 13 August 2013, the FTT allowed the respondent's appeal. It should be noted that the FTT's decision preceded the important guidance given by this court in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544 regarding the test to be applied in relation to an Article 8 claim by a foreign criminal seeking to resist deportation. The relevant test identified in MF (Nigeria) was that where a foreign criminal could not bring himself within para. 399 or para. 399A of the Immigration Rules, such a claim could only succeed if there are "very compelling reasons" to outweigh the public interest in deportation: see para. [43].
8. The FTT considered the relevant Immigration Rules at paras. 398 to 399A. It held that the respondent could not bring himself within para. 399(a), because although he had a genuine and subsisting relationship with children in the United Kingdom who are British citizens and who could not reasonably be expected to go to Zimbabwe, those children could be cared for in the United Kingdom by their mother. It held that the respondent could not bring himself within para. 399(b), nor within para. 399A, because he had not lived in the United Kingdom for a sufficient period. The FTT then considered, very briefly, the application of para. 398, to see whether there were "exceptional circumstances" such that the public interest in the deportation of the respondent was outweighed by other factors. It held that there were no "exceptional circumstances" and that the respondent's Article 8 claim under the Immigration Rules could not succeed: [19].
9. However, the FTT then made its own assessment of the Article 8 claim outside the Immigration Rules, and held that his deportation would be disproportionate and would violate his rights and those of his family under Article 8: [20]-[24]. It placed weight on evidence given by Ms Temba that the respondent had changed his ways and that their relationship had been repaired, albeit it had considerable reservations as to whether the respondent's attitude towards his offending had genuinely changed; it also considered that the best interests of the children of the respondent and Ms Temba was to remain in the United Kingdom as part of a family unit with both parents, and attached considerable weight to this factor. In relation to the public interest in the deportation of foreign criminals, the FTT merely said at para. [24]: "In coming to our decision, we have given significant weight to the public interest …".
10. The Secretary of State appealed to the Upper Tribunal. In a decision promulgated on 24 December 2013, the Upper Tribunal dismissed the appeal. It had regard to the decision of this court in MF (Nigeria). It considered that the FTT had in substance followed the approach set out in that case.
11. The Secretary of State now appeals to this court, with permission and an extension of time granted by Richards LJ.

Discussion

12. In my judgment, the conclusion of the Upper Tribunal that the FTT had in substance followed the approach set out in MF (Nigeria) and applied the test identified in that case is unsustainable. The cursory reference by the FTT to the public interest in deportation and the terms in which it was made make it clear, in my opinion, that the FTT did not apply the stringent test of "very compelling reasons" as laid down in MF (Nigeria), as it should have done. I am sympathetic to the FTT, because its decision pre-dated the guidance given in MF (Nigeria). But this does not prevent its decision being affected by an error of law, as now can be seen to be the case.
13. The correctness of the legal threshold to be surmounted by a foreign criminal whose case falls outside paras. 399 and 399A of the Immigration Rules, as identified by this court in MF (Nigeria), has been affirmed by the Supreme Court in Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, at [37]-[38] and [46]. Accordingly, I am left in no doubt that the FTT failed to apply the correct test when considering the case under Article 8. Therefore, the appeal must be allowed and the FTT's decision and that of the UT must be set aside.
14. Miss Rowlands for the Secretary of State submits that it is clear that, upon application of the correct test, the respondent's Article 8 claim must fail. Therefore, she says, this court should itself decide here and now that the respondent's appeal against the Secretary of State's decision to deport him should be dismissed.
15. I do not agree. Upon remission of the case to the FTT for fresh consideration, it is possible that on full exploration of the facts the Article 8 interests of the family, taken as a whole, might be found to provide reasons to the "very compelling reasons" standard, as explained in the Ali case, sufficient to outweigh the great weight of the public interest in deportation of a foreign criminal sentenced to 20 months' imprisonment. In making the re-assessment, the FTT is required to treat the interests of the children as a primary consideration, although not, of course, as a trump card: see ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166 and Zoumbas v Secretary of State for the Home Department [2013] UKSC 74; [2013] 1 WLR 3690. I do not consider that this court can say, on the limited and very out of date material before us, that there is no real prospect of the respondent being able to make out his claim based on Article 8 to avoid deportation.
16. For the reasons given above, I would allow the appeal and remit the respondent's case for a fresh determination to be made by the FTT.

Lord Justice Patten:

17. I agree.

Lord Justice Longmore:

18. I also agree.