ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Lower Court No: DA012462013
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE FLAUX
SIR STANLEY BURNTON
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
Shivani Jegarajah (instructed by MKM Solicitors) for the Respondent
Hearing date: 23 February 2017
Crown Copyright ©
Sir Stanley Burnton :
The facts in summary
The applicable Immigration Rules
"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:
(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 the 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;
(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
(ii) 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 have to 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 no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK."
The decision of the First-tier Tribunal
"26. Ms Ayodelle [for the Secretary of State] submitted that she relied upon the reasons for deportation set out in the respondent's letter. The appellant now accepted that he had been dealing in class A drugs. This was a serious conviction, against which he had not appealed. It would only be if there were exceptional circumstances that the appellant would not fall to be deported due to his private and family life in the UK. There were genuine relationships between the appellant, his wife and daughter but there was nothing exceptional in this case. There was no evidence of undue hardship or the welfare of the appellant's wife and daughter being compromised. The appellant's wife had family who could support her, and she would be able to visit the appellant in Jamaica. There were also no exceptional circumstances linked to the appellant's private life. He would be able to make use of his qualifications and work skills in Jamaica, and could adjust to life there as a painter and decorator. It was accepted that he was at low risk of reoffending and to the public but this did not counter-balance the seriousness of his conviction. She relied upon the cases of Kabia (MF: para 398 'exceptional circumstances')  UKUT 00569 (IAC) and SS (Nigeria) v Secretary of State for the Home Department  EWCA Civ 550.
27. Mr Mak [on behalf of RF] relied upon his skeleton argument. He submitted that it was accepted that the appellant had committed a serious offence. However he had a very strong relationship with his wife and child, and as a result the probation officer had recommended that he should [not] be given a custodial sentence because of the detrimental effect on his daughter in the pre-sentence report. There were two purposes of a prison sentence: to punish and rehabilitate an offender. It was clear that the appellant had been rehabilitated. He understood the impact of his offending, and had done courses in drugs awareness. He had an excellent prison record: prison had worked and he was a better person who posed no risk to the public. The appellant had been given category D status, and allowed home to be with his family at weekends. He was not seen as a risk to the public, and had also been given bail once his sentence had finished and he was detained under the Immigration Act. His probation officer confirmed that he was currently a low risk of offending and a low risk of causing harm. He had no previous convictions of any kind. The respondent had conceded that it would be unreasonable for the appellant's daughter to relocate, and that there were insurmountable obstacles to the appellant's wife relocating with him. The only issue remaining was the protection of the public, and the evidence showed that the appellant had learned his lesson and was not a risk. There were fundamental differences between this case and the case in SS (Nigeria). This appellant had valid leave and was not unlawfully present at the time of his offence; this appellant was a low not medium risk of re-offending; this appellant was married to the mother of his child and had a stronger family unit."
"29. It is accepted by the respondent that the appellant has genuine, strong and lasting bonds with his wife of nine years and that the couple have an eight year old daughter together. We find that the appellant and his wife lived together as a couple prior to his offence for eight years and with their daughter for six years prior to the offence; that they maintained family contact throughout his time in prison with daily telephone calls and regular visits, and later with home release at the weekends. The appellant's relationship with his wife and daughter is support[sic] by the appellant's mother-in-law who supported her daughter and granddaughter whilst the appellant was in prison; who provides the couple with a home and who stood as a surety for the appellant's Immigration Act bail and who attended but did not give evidence to the Tribunal. Since the appellant's release on bail the family have once again lived together as a family unit with the appellant's mother-in-law. We find that the emotional bonds with the appellant mean that it is in his daughter's best interest that he is not deported, particularly given the level of contact they would be likely to have if he were deported; and our findings as to his low risk of re-offending and his prospects of work as set out below.
30. The appellant was of good character prior to his committing the index offence. He has accepted his guilt in relation to the index offence, and shown remorse for having committed it. His remorse was commented on by the probation officer who wrote his pre-sentence report, who saw him as a "very genuine individual", and recommended as a result of this and his family ties that he should not face a sentence involving the deprivation of his liberty (see section 5 of the pre-sentence probation service report). He has undertaken courses in drugs awareness whilst in prison and understands the personal and societal impact of drugs crimes. We accept his evidence and that of his wife that he has no intention of committing further offences. We note that the Probation Service report assesses the appellant as posing 'no risk of serious harm' and of being a low risk of reconviction . This was also the category given to him in his Probation Service pre-sentence report at section 4. This information is consistent with his having been categorised as a category D prisoner whilst serving his sentence; of being allowed weekend release during his sentence on seven occasions between January and July 2013; and with the probation service having arranged for him to do voluntary work for Demelza Hospice Care for Children during his sentence for a month in May 2013. The appellant has been on Immigration Act bail for three months since the end of his sentence and has committed no offences during this time. We find that he poses a low risk of harm, and that [there] is a low risk for reoffending.
31. The appellant also has skills and qualifications as a painter and decorator (which he has enhanced during his time in prison - see the City and Guilds certificates in Basic Construction Skills - Painting and Decorating and Multi-Crafts, and those in Business Enterprise) which will enable him to make a living in a legitimate way; and which he has previously used to provide some income for his family.
32. The respondent has accepted that the appellant's daughter cannot reasonable [sic] be expected to leave the United Kingdom, and that there were would be insurmountable obstacles to his wife leaving the United Kingdom and relocating to Jamaica due to their nationality and ties to the UK. This is consistent with the evidence given by the appellant and his wife that his family would not be able to accompany him to Jamaica a country where they have no family or connections bar holidays; where the appellant has no accommodation or work and which would result in their leaving family, property, jobs, studies, schools and friends as well as access to services such the NHS in the UK. We find that if the appellant were deported contact would be limited to telephone calls, internet communication and very occasional visits. As Ms F has correctly said if she were alone she would have to work less so as to be able to care for her daughter (particularly given her mother's retirement to Panama) and would not easily or often be able to afford air fares to Jamaica for the two of them to visit on her salary as a nursery administrator. We accept that the most the appellant's wife and child would be able to visit would be once a year, and that some years this might not be possible.
33. We find that the appellant would have suitable skills to enable him to relocate in Jamaica. He lived in that country for the first 21 years of his life; he has qualifications and experience as a painter and decorator and is a healthy young man. Life would not be easy however as he has no close relatives on which he could rely, his mother and sisters having moved to the USA.
42. We find that the appellant's deportation would not be in the best interests of his eight year old daughter. She has a strong bond with her father, who has played a considerable role in her life: living with her since her birth bar the time of his imprisonment; having daily telephone contact whilst the appellant was in prison and visits whilst in prison; the appellant taking her to and from school on a daily basis both prior to his period of imprisonment and following his release on Immigration Act bail. The appellant has given emotional and compelling evidence of his daughter's simple wish to physically be with her father: telling him she was saving up her money so he did not need to go away to work - which was what she had been told he was doing whilst he was in prison. As Mrs F has said the deportation of the appellant would also affect her ability to provide for their daughter as she would have to work on a more part-time basis to be able to care for her without the appellant's assistance, and of course she would also find the deportation emotionally damaging which would in turn have some impact on her ability to care for daughter. In assessing this factor we have had regard to the Supreme Court decision in ZH (Tanzania) v SSHD  UKSC4, where it was recognised that the best interests of a child affected by a deportation decision are a primary consideration to be taken into account, but also recognised that a child's best interests can be outweighed by the cumulative effect of other factors.
43. We also find that it would not be reasonable to expect the appellant's wife and daughter to join him in Jamaica, and there would be insurmountable obstacles to the appellant's wife's relocation: these both being issues conceded by the respondent. We are impressed by the strength of the family life bonds between all members of this family, and the commitment to each other both in terms of the years they have lived as a family but also the commitment they have given each other in the context of the appellant's imprisonment and the grave difficulties and emotional upset that this has caused."
"47. We note that had the appellant been sentenced to a period of imprisonment of less than four years, rather than the four years he received, that the respondent would have concluded that his deportation was not proportionate to the legitimate aim in accordance with paragraph 399(b) of the Immigration Rules, on the basis of the insurmountable obstacles that it is accepted (by the respondent) exist to his wife relocating with him to Jamaica. The appellant therefore has been sentenced to the shortest term of imprisonment that could lead to his deportation given his wife's circumstances, according to the respondent's scheme of assessment as set out in the Immigration Rules. In this context it is notable that probation evidence relating to the appellant's low risk of re-offending was not put into the balance when assessing 'exceptional circumstance' by the respondent in the reasons for deportation letter; and that in that letter the respondent did not come to a firm conclusion as to whether the deportation of the appellant was contrary to the best interests of the appellant's child, although relevant issues with respect to this factor were noted."
"48. In balancing the public interest in deportation against the appellant's family life we give weight to our finding that the best interests of the appellant's daughter are in his remaining in the United Kingdom, and that this must be a primary consideration. Our finding that this is the case starts from the strong, genuine and subsisting relationship between father and daughter and the unreasonableness of her accompanying him to Jamaica. It is then reinforced by the fact that the appellant poses no or low risk of serious harm to the public, and is at low risk of re-offending. He has no previous convictions and has taken voluntary steps to do prison courses which particularly address the societal and personal damage caused by drugs crime, and to place himself in the best position to obtain employment on release. On this basis we find that the appellant has skills and qualifications which will enable him to lead a lawful existence, and provide a positive societal role model to his daughter in the future as well as continue his role as a present, active and caring father.
49. We also give weight to the fact that the appellant was lawfully resident at the time of his offence with discretionary leave to remain, having entered the UK lawfully and had taken successful steps to regularise his stay with the respondent on the basis of his marriage.
50. We also give weight to the length, quality and strength of the family life bonds between the appellant, and wife, as set out above, and the insurmountable obstacles to the appellant's wife joining him in Jamaica.
51. In the light of the best interests of the appellant's daughter; the strength of the family life in this case; the insurmountable obstacles to the family relocating; and the low risk of harm to society and of the appellant reoffending we find that deportation from the UK amounts to a disproportionate interference with his right to respect for family life, and that to proceed with that deportation would have unjustifiably harsh consequences for his family so as to make the circumstances of this case exceptional in accordance with paragraph 399 of the Immigration Rules."
The determination of the Upper Tribunal
The contentions before us
i) The First-tier Tribunal and the Upper Tribunal had failed to give adequate weight to the assessment and decision of the Secretary of State.
ii) The implication of paragraph 399(a) of the Immigration Rules is that, where a person has received a sentence of 4 years or more, the matters to which it refers (in the present case, those identified in paragraph 399(a))i) and (ii)) will not of themselves be sufficient to entitle a person to avoid deportation. The First-tier Tribunal and the Upper Tribunal failed to consider the Respondent's case on this basis.
iii) Moreover, in paragraph 47 of its determination, the First-tier Tribunal had wrongly considered that if the Respondent had received a sentence of less than 4 years, under the Immigration Rules he would not have been liable to deportation. This was incorrect: since there was another family member able to care for their child in the UK, even if he had been sentenced to a period of imprisonment of less than 4 years (but of at least 12 months) paragraph 399(a)(i)(a) would not have been satisfied. Furthermore, in giving weight to the fact that the Respondent had received the shortest sentence that rendered him ineligible for consideration under paragraphs 398(b) and 399(b) of the Immigration Rules, the First-tier Tribunal had incorrectly in effect applied a "near miss" principle.
"36. Considering the new [Immigration] rules in the light of the guidance given by the European court, rule 397 makes it clear that a deportation order is not to be made if the person's removal would be incompatible with the ECHR. Where article 8 claims are made by foreign offenders facing deportation, rule 398 explains that the Secretary of State will first consider whether rule 399 or 399A applies. Those rules, applicable where offenders have received sentences of between 12 months and four years, provide guidance to officials as to categories of case where it is accepted by the Secretary of State that deportation would be disproportionate. The fact that a claim under article 8 falls outside rules 399 and 399A does not, however, mean that it is necessarily to be rejected. That is recognised by the concluding words of rule 398, which make it clear that a claim that deportation would be contrary to article 8 will not be rejected merely because rules 399 and 399A do not apply, but that 'it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors'.
37. How is the reference in rule 398 to 'exceptional circumstances' to be understood, compatibly with Convention rights? That question was considered in the case of MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192;  1 WLR 544. The Court of Appeal accepted the submission made on behalf of the Secretary of State that the reference to exceptional circumstances (an expression which had been derived from the Jeunesse line of case law) served the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who did not satisfy rules 398 and 399 or 399A, and that it was only exceptionally that such foreign criminals would succeed in showing that their rights under article 8 trumped the public interest in their deportation (paras 40 and 41). The court went on to explain that this did not mean that a test of exceptionality was being applied. Rather, the word "exceptional" denoted a departure from a general rule:
'The general rule in the present context is that, in the case of a foreign prisoner (sic) to whom paragraphs 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".' (para 43)
The court added that "the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence" (para 44). As explained in the next paragraph, those dicta summarise the effect of the new rules, construed compatibly with Convention rights.
38. 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.
45. Where an appellate court or tribunal has to reach its own decision, after hearing evidence, it does not, in general, simply start afresh and disregard the decision under appeal. That was made clear in Sagnata Investments Ltd v Norwich Corpn  2 QB 614, concerned with an appeal to quarter sessions against a licensing decision taken by a local authority. In a more recent licensing case, R (Hope & Glory Public House Ltd) v City of Westminster Magistrates' Court  PTSR 868, para 45, Toulson LJ put the matter in this way:
'It is right in all cases that the magistrates' court should pay careful attention to the reasons given by the licensing authority for arriving at the decision under appeal, bearing in mind that Parliament has chosen to place responsibility for making such decisions on local authorities. The weight which magistrates should ultimately attach to those reasons must be a matter for their judgment in all the circumstances, taking into account the fullness and clarity of the reasons, the nature of the issues and the evidence given on the appeal.'
46. These observations apply a fortiori to tribunals hearing appeals against deportation decisions. The special feature in that context is that the decision under review has involved the application of rules which have been made by the Secretary of State in the exercise of a responsibility entrusted to her by Parliament, and which Parliament has approved. It is the duty of appellate tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. But, where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, they should attach considerable weight to that assessment: in particular, that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender's deportation almost always outweighs countervailing considerations of private or family life; that great weight should generally be given to the public interest in the deportation of a foreign offender who has received a custodial sentence of more than 12 months; and that, where the circumstances do not fall within rules 399 or 399A, the public interest in the deportation of such offenders can generally be outweighed only by countervailing factors which are very compelling, as explained in paras 37-38 above."
"'Exceptional' does not mean "unusual" or "unique". Whilst all cases are to an extent unique, those unique factors do not generally render them exceptional. Similarly, a case is not exceptional just because the exceptions to deportation in Rule 399 or Rule 399A have been missed by a small margin. Instead, 'exceptional' means circumstances in which deportation would result in unjustifiably harsh consequences for the individual or their family such that it would not be proportionate. That is likely to be the case only very rarely."
Lord Justice Flaux
Lady Justice Black