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)
UTJ ALLEN

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/04/2017

Lord Justice Underhill:

INTRODUCTION

1. The Respondent to this appeal, Huu Dinh Nguyen, is a national of Vietnam born on 30 October 1985. He came to this country illegally in or about March 2002, when he was aged sixteen. He came to the attention of the authorities in November 2002 and was served with a notice requiring him to leave the country. He did not do so. In late 2004 he started a relationship with another Vietnamese national, Huyen Thu Trinh ("Huyen"). Huyen was at that point married to a British citizen, Tam Van Hoang ("Tam"), by whom she was pregnant. The Respondent and Huyen went through an unofficial marriage ceremony in February 2005. Huyen's daughter by Tam, Amy, was born in August 2005 and has always lived with her mother and the Respondent. The Respondent and Huyen have since had a son, Jimmy, who was born in September 2007. They were legally married on 3 September 2013.
2. On 6 February 2009 the Respondent pleaded guilty to being concerned in producing a class C controlled drug and he was sentenced to two years' imprisonment. On 28 October 2009 a deportation order was made. After a complicated sequence of events into which it is unnecessary to go, on 31 October 2013 the Secretary of State, who is the Appellant in this appeal, made a decision not to revoke that order. The Respondent appealed against that decision.
3. The Respondent's appeal was heard by the First-tier Tribunal, comprising FTTJ Stokes and another tribunal member whose name has unaccountably been omitted from the record of the proceedings. By a determination promulgated on 25 June 2014 his appeal was allowed. The Tribunal found that his deportation would be in breach of the rights of himself and his family – that is, his wife Huyen, his step-daughter Amy and his son Jimmy – under article 8 of the European Convention on Human Rights.
4. The Secretary of State appealed to the Upper Tribunal. The appeal was heard by UTJ Allen. By a determination dated 16 October 2014 the appeal was dismissed.
5. This is an appeal against that decision. The Secretary of State has been represented before us by Mr Neil Sheldon and the Respondent by Mr Michael Harris. Neither appeared in either of the tribunals below.

BACKGROUND LAW

6. The Respondent is a "foreign criminal" as defined by section 32 (2) of the UK Borders Act 2007 because he has been convicted of a criminal offence for which he was sentenced to at least twelve months in prison. It follows, by virtue of section 32 (4), that his deportation is conducive to the public good. It also follows, by virtue of section 32 (5), that the Secretary of State was obliged to make a deportation order unless one of the exceptions set out in section 33 applied. The only relevant exception here is that provided by sub-section (2) (a), namely that his deportation would "breach a person's Convention rights": the Convention right which is in play is article 8, which protects the right to respect for family and private life.
7. The European Court of Human Rights has consistently recognised that there is a strong public interest in the deportation of foreign criminals, but also that in some cases that interest may be outweighed by the interests protected by article 8. The Secretary of State has sought in the Immigration Rules to reflect the effect of the Strasbourg case-law.^[1] The core provisions relating to deportation decisions are paragraphs 398-399A; and the effect of paragraph 390A is that those provisions apply equally to the question whether to revoke such a decision.
8. Paragraph 398, as it stood at the material time, read as follows:

"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."

Paragraphs 399 and 399A identify circumstances pertaining to the criminal's family life (paragraph 399) or his or her private life (paragraph 399A) which the Secretary of State regarded, based on her understanding of the Strasbourg authorities, as sufficient to outweigh the public interest in deportation. If the criminal cannot get through either gateway, then, as paragraph 398 says, only "in exceptional circumstances" will the public interest in his or her deportation be outweighed: that phrase too is derived directly from the Strasbourg case-law.

9. As will in due course appear, it is common ground that neither gateway applies in the present case, but I need nevertheless to set out paragraph 399, which at the material time read as follows:

"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;

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 the partner continuing outside the UK."

There are thus two alternatives under this gateway – (a), which is concerned with parental relationships; and (b), which is concerned with relationships with a partner.

10. In MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 WLR 544, this Court, at paras. 38-44 (pp. 560-561), gave guidance as to the correct approach to the provision in paragraph 398 that in cases which did not fall within paragraphs 398 or 399A the public interest in deportation would only be outweighed "in exceptional circumstances". In summary, it held that that phrase required the decision-maker to carry out the proportionality exercise required by article 8, "weighing the factors which favour deportation against those which do not" (para. 38). That will incorporate factors mentioned in the Strasbourg case-law which are not already taken into account in the formulation of the paragraph 398 and 399 gateways, including "what is in the best interests of the child, the age of the offender at the date of entry into the UK and at the date of the offending, the length of time since the offence, and the offender's subsequent conduct" (see para. 39). The Court held that the effect of the reference to "exceptional circumstances" was to emphasise that in that balancing exercise great weight had to be given to the public interest in deporting foreign criminals whose cases do not fall within the terms of paras. 399 or 399A (see para. 40). The intention was not to impose a test of exceptionality as such but to recognise that "the scales are heavily weighted in favour of deportation and something very compelling (which will be 'exceptional') is required to outweigh the public interest in removal" (para. 42). It summarised the correct approach as follows:

"43. 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'.

44. We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence. We accordingly respectfully do not agree with the UT that the decision-maker is not 'mandated or directed' to take all the relevant article 8 criteria into account…"

11. As will appear, the reference to the new Rules – that is, paragraphs 398-399A – constituting a "complete code", in the sense that the proportionality evaluation required by article 8 was comprised in the reference to "exceptional circumstances", has given rise to some difficulty, but the Court made clear that ultimately the point was not of substantive importance, because it continued, at para. 45 (p. 561 E-F):

"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 a requirement of the general law. What matters is that it is required to be carried out if paras. 399 or 399A do not apply."

(This latter point was very clearly explained at paras. 43-47 of the judgment of the Court in Secretary of State for the Home Department v SS (Congo) [2015] EWCA Civ 387, [2016] 1 All ER 706.)

12. At the time of the decisions of the FTT and the UT in this case MF (Nigeria) was the leading authority on the correct approach to paragraphs 398-399A, and in particular to the exercise required where paragraphs 399 and 399A did not apply. The issue has now been considered by the Supreme Court in Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799. I should set out the relevant parts of the judgment of Lord Reed, with whom the other members of the Court agreed, in a little detail.
13. At paras. 2-21 of his judgment (pp. 4803-10) Lord Reed sets out the relevant legislation, including paragraphs 398-399A of the Immigration Rules (which were in the same terms at the material time as those with which we are concerned). I need not refer to the detail, save to note that at para. 14 (p. 4806) he says that sections 32 and 33 of the 2007 Act

"… make clear Parliament's view that there is a strong public interest in the deportation of foreign nationals who have committed serious offences, and that the procedures for their deportation should be expeditious and effective. The strength of that public interest is reflected in Laws LJ's observation that for a claim under article 8 of the ECHR to prevail, it must be 'a very strong claim indeed': SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; [2014] 1 WLR 998, para. 54."

14. Lord Reed then, at paras. 24-35 (pp. 4810-14), summarises the effect of the Strasbourg jurisprudence. At para. 26 he identifies a number of criteria referred to in the authorities as relevant to the decision whether it is proportionate to expel a migrant settled in the host country who committed an offence. I need not set these out here, though I note that they are broadly similar to those mentioned by this Court in MF (Nigeria). At paras. 27-29 he considers to what extent the situation is different where the migrant in question is not settled, including where he has entered the country illegally, with particular reference to Jeunesse v The Netherlands (2014) 60 EHRR 17.
15. He then turns, under the heading "Administrative Decision-Making", to how paragraphs 398-399A are to be understood in the light of the Strasbourg jurisprudence (paras. 35-38 (pp. 4814-6)). At para. 37 he summarises the reasoning in MF (Nigeria). He continues, at para. 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 [2007] 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."

16. In the following section, "Appellate Decision-Making" (paras. 39-50 (pp. 4816-9)), Lord Reed considers the proper approach of the Tribunal on an appeal against a deportation decision. At para. 46 he points out that paragraphs 398-399A represent a policy decision by the responsible decision-maker as to the weight to be given to the public interest in the deportation of offenders in particular categories of case and that that policy judgement has been approved by Parliament; accordingly, while tribunals must make their own assessment of the proportionality of deportation in any particular case, they should in doing so attach great weight to the assessment embodied in the Rules. He endorses, at paras. 47-49, "the established method" of carrying out the proportionality assessment in the cases of both foreign criminals who are lawfully present and those who are not. He concludes, at para. 50:

"In summary, therefore, the tribunal carries out its task on the basis of the facts as it finds them to be on the evidence before it, and the law as established by statute and case law. Ultimately, it has to decide whether deportation is proportionate in the particular case before it, balancing the strength of the public interest in the deportation of the offender against the impact on private and family life. In doing so, it should give appropriate weight to Parliament's and the Secretary of State's assessments of the strength of the general public interest in the deportation of foreign offenders, as explained in paras 14, 37-38 and 46 above, and also consider all factors relevant to the specific case in question. 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 was put in MF (Nigeria) - will succeed."

17. At paras. 51-53 of his judgment Lord Reed addresses what he says is a misconception in some of the post-MF authorities that the Court's reference to "a complete code" means that "the Rules, and the Rules alone, govern appellate decision-making". This does not, however, represent a departure from what was said in MF (Nigeria). Rather, he is emphasising the jurisprudential point that the Immigration Rules do not, as such, constitute law but represent a statement of the Secretary of State's administrative practice – a point more fully developed earlier in his judgment (see para. 17) – and thus that they cannot as such cannot govern the determination of appeals. Nevertheless, he continues:

"The policies adopted by the Secretary of State, and given effect by the Rules, are … 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 of the strength of the general public interest in the deportation of foreign offenders, and also consider all factors relevant to the specific case before them, as explained at paras 37-38, 46 and 50 above. It remains for them to judge whether, on the facts as they have found them, and giving due weight to the strength of 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."

18. In short, therefore, the Supreme Court in Ali endorsed, though on a more fully explained basis, the approach to appeals against decisions to deport foreign criminals taken by this Court in MF (Nigeria).

THE REASONING OF THE FIRST-TIER TRIBUNAL

19. As will appear, the primary submission of the Secretary of State depends not so much on any alleged explicit misdirection of law by the FTT but rather on what is said to have been a failure by it to apply its own directions, which failure is said to be demonstrable from the structure of the material parts of its determination. It is accordingly necessary that I summarise the decision in a fair amount of detail.
20. Paras. 1-14 of the determination set out the procedural history and the applicable provisions of the 2007 Act and the Immigration Rules in unexceptionable terms. I should, however, mention one wrinkle. The Secretary of State's decision to refuse to revoke the deportation order inaccurately recorded that the order in question was made on 31 October 2013, i.e. the same date as the decision to revoke it. At the start of the hearing the Home Office Presenting Officer was asked for clarification. She said, wrongly, that there was indeed a fresh order made on 31 October 2013 and that the appeal was an appeal against that order. The Tribunal proceeded on that basis and accordingly made no reference to the provisions relating to revocation. Fortunately, this mistake (for which the Home Office rather than the Tribunal must take the blame) made no difference since, as noted at para. 7 above, the rules relating to revocation incorporate the rules applicable to the original decision.
21. Paras. 15-31 of the determination summarise the evidence. I need not refer to any part of this section, save to note that the Respondent, Huyen and Tam all gave evidence and were cross-examined.
22. Paras. 32-43 of the determination contain careful findings of fact, none of which is in issue in this appeal. The key findings can be summarised as follows:

(1) The Respondent came to the UK because his grandmother paid for him to be brought here. He was "controlled by the people who were prepared to feed and house him in return for him doing whatever they told him". (I am bound to say that that looks very like a finding that he was a victim of trafficking, but the case has at no stage been put on that basis.)

(2) The offence for which the Respondent was sent to prison, which was committed when he was aged 23, was his only serious offence. He had been told by the people controlling him to clean and look after a house which was being used as a cannabis factory. He had nothing to do with the cultivation of the plants and he was arrested on the very first day that he went to work there. He had not committed any subsequent offence.

(3) In December 2013 Huyen and Jimmy were granted leave to remain valid until 27 June 2016.

(4) The Respondent's marriage to Huyen was genuine and subsisting. She had been in employment, working in a nail bar in Salisbury, since she was granted leave to remain; and since then (if indeed not before) he has been the primary carer for both children.

(5) Amy is a British citizen. As to her relationship with her father, Tam, the Tribunal found that he saw her at least once a week and perhaps more often during school holidays. It continued:

"He has not integrated her into his own current family because his wife is not interested in taking on her care and has two daughters of her own. Tam is content for Amy to continue living with the Appellant and Huyen as she is happy with them. He will not, however, agree to her being removed to Vietnam … despite his devotion to Amy, he does not feel able to take over her care full-time or even occasionally."

(6) Jimmy is not a British citizen but, as noted, he enjoys limited leave to remain equivalent to his mother's.

23. Paras. 44-51 are headed "The Immigration Rules". The Tribunal approaches systematically the effect of paragraphs 398-399A of the Rules. It starts by acknowledging that the Respondent's case falls within paragraph 398 (b) and accordingly proceeds to examine whether either paragraph 399 or paragraph 399A applies. In summary:

(1) As regards head (a) under paragraph 399 – i.e. the part which covers the Respondent's relationship with his children – it found that the requirements of the rule are not satisfied. It accepted that he had a genuine and subsisting parental relationship with both Amy and Jimmy and that Amy was a British citizen, so that the first element under head (a) was satisfied at least as regards her (though not as regards Jimmy because he was aged only six at the relevant time). But it found that he failed as regards the second element, because, although it recorded that the Secretary of State had recognised that it was not reasonable to expect Amy to leave the UK^[2] (i.e. condition (a)), condition (b) was not satisfied, since Huyen now had leave to remain and Tam was also "available … to assume the role of primary carer if obliged to by circumstances".

(2) As regards head (b) under paragraph 399, the Respondent had never lived in the UK lawfully at all, let alone for fifteen years, so he could not satisfy condition (ii). But the Tribunal also considered in some detail whether he could satisfy condition (i) and found that there would be no insurmountable obstacles to the Respondent's family life with Huyen continuing in Vietnam. In that connection it observed that "both Jimmy and Amy speak Vietnamese and are of an age when they can adapt to a different way of life and education".

(3) I need not summarise the Tribunal's reasons for finding that the Appellant did not satisfy the "private life" provisions of paragraph 399A.

24. The Tribunal's conclusion from that analysis, at para. 51, reads:

"We have found that the Appellant has not met the requirements of paragraphs 399 or 399A of the Immigration Rules. The Respondent's decision is, therefore, in accordance with the Immigration Rules and the law, and she should not have exercised her discretion under paragraph 399B differently."

(The second sentence in that passage is a reference to the statutory grounds of appeal enumerated in section 84 (1) of the 2002 Act (in the form then in force) – specifically to heads (a), (e) and (f). The reference to an exercise of discretion "under paragraph 399B" seems to be a slip, but nothing turns on that for our purposes.)

25. The remainder of the determination, paras. 52-66, is headed "Article 8 ECHR", and is directed to the question whether the Respondent could rely on article 8 notwithstanding that, as it had concluded in the previous part of its determination, his case did not fall within the terms paragraphs 399 and 399A. There are no further headings and although the Tribunal again proceeds in a systematic way the structure of its reasoning needs to be identified with a little care. I can summarise it as follows.
26. At paras. 52 the Tribunal gives an accurate summary of the effect of MF (Nigeria), quoting in full the passages which emphasise the great weight to be given to the public interest in deporting foreign criminals, that "the scales are heavily weighted in favour of deportation", and that "something very compelling" is required to outweigh the public interest in deportation.
27. At para. 53 it sets out, by reference to Secretary of State for the Home Department v Gulshan [2013] UKUT 00640 (IAC), the conventional two-stage approach in cases generally (i.e. not only those concerning the deportation of foreign criminals) where article 8 is relied on "outside the Rules". As formulated in Gulshan, that required it as a first step to decide whether it was "arguable" that the Respondent could advance such a case; and it found at the beginning of para. 54 that it was. (That "first step" is in fact unnecessary – see Singh v Secretary of State for the Home Department [2015] EWCA Civ 74, at para. 64 – but nothing turns on that.) It accordingly directed itself that it should carry out the five-stage assessment outlined in R v Secretary of State for the Home Department ex p Razgar [2004] UKHL 27, [2004] 2 AC 368, though modified "as stated in ZH (Tanzania)"^[3] so as to reformulate the final – proportionality – question as: "Is removal necessary, proportionate and a fair balance between the right to respect for the family life of the appellant and the child and the particular public interest in question ?"^[4].
28. The Tribunal then finds, at para. 55, that the first four Razgar steps are satisfied, so that the only remaining issue is proportionality. As to that, it begins by reminding itself at para. 56 of the observation of Lord Bingham in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, [2009] AC 1159, that it will rarely be proportionate to make an order which has the effect of severing a genuine and subsisting relationship between parent and child (see per Lord Bingham at para. 12 (p. 1188 E-F)). It then, at para. 57, reminds itself of the duty imposed by section 55 of the Borders Citizenship and Immigration Act 2009 to treat the best interests of the children as a primary consideration when carrying out the proportionality assessment. Pursuant to that duty it proceeds to assess what is in the best interests of both Amy and Jimmy. As regards Amy, it says, at para. 58:

"We find that it is in her best interests to remain in the UK with her current primary carers with whom she has always lived, even though the Appellant is her step and not biological father. We find that the Appellant's removal would be detrimental to her well-being or result in unjustifiably harsh consequences for her. … We find that his removal would impact on her adversely – Beoku-Betts [2008] UHL 39."

As regards Jimmy, it concludes, at para. 59:

"The latter's deportation would mean that Jimmy will spend most of the remainder of his childhood without the Appellant's physical presence or care, which we consider at his age of 6 would have a significantly adverse effect on his well-being, particularly as he has never been looked after by anyone other than the Appellant and Huyen. We find that his best interests are served by the Appellant's continuing to be a full-time parent to him in the UK."

29. At para. 60 the Tribunal sets out further factors which it is required to take into account in performing the necessary balancing exercise. This reads:

"In SS (Nigeria), the Court of Appeal emphasised that the State's policy of deporting foreign criminals must be given great weight where that policy is made by the legislature and not by the executive government. There is no rule of exceptionality, but the more pressing the public interest in removal or deportation the stronger must be the claim under Article 8 if it is to prevail. We have had regard to the decisions previously quoted in this determination that the Immigration Rules represent a complete code and that the Appellant has not met the required criteria of that code. We have taken into account that the ECHR does not guarantee the right of an alien to enter or reside in a particular country; in pursuance of their task of maintaining order, Contracting States have the power to expel an alien convicted of criminal offences, provided any interference with rights protected under Article 8 (1) was justified by a pressing social need and was proportionate to the legitimate aim pursued."

30. The Tribunal then proceeds to review in turn the factors weighing for and against the Respondent in the proportionality balance.
31. It starts, at para. 61 with the factors weighing in favour of the Respondent's deportation. The paragraph begins:

"We have found that the following factors weigh against the Appellant when completing the balancing exercise in order to determine proportionality. He is a foreign criminal as defined in section 32 (1) of the 2007 Act. Parliament has decided that his deportation is conducive to the public good and requires the Respondent to make a deportation order in respect of him. His conviction was in relation to the production of a quantity of cannabis, a Class C controlled drug. Offences relating to drugs are regarded as particularly serious crimes under the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 since the use of and dealing in drugs damages society. We have taken as a starting point that the Appellant has been unable to meet the criteria set out in paragraphs 398-399A of the Immigration Rules which establish a complete code in relation to deportation."

The Tribunal goes on to refer to the importance of maintaining a proper system of immigration control, quoting a passage to that effect from the opinion of the Appellate Committee in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167. It also refers to the Respondent's failure to return to Vietnam when first notified that his presence was unlawful.

32. The Tribunal then turns to the factors weighing against deportation. These are enumerated at paras. 62-64. Paras. 62-63 deal with what is in the best interests of Amy and Jimmy, which the Tribunal says that it has made, in accordance with section 55 of the 2009 Act, "our primary consideration". It relies on its previous findings in that regard, though it also refers to the decision of the CJEU in Ruiz Zambrano (C-34/09), [2012] QB 265 (because Amy is British) and to the principle stated by Lord Hodge in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690, that "a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent" (see para. 10 (7) (p. 3695B)). Para. 64 identifies some further factors. These are rather a mixed bag, and there is an element of repetition, but the principal points made are that there were mitigating circumstances attending the Respondent's conviction and that he has committed no further offences in the five years since his release.
33. The thrust of paras. 62-64 is that the balance comes down against deportation. That is made explicit in paras. 65-66, which read:

"65. In coming to our decision, the factors in favour of deportation are weighty particularly as to the serious view taken by the Respondent of the Appellant's criminality and her legitimate aim to protect society and prevent disorder and crime. On the other hand, we have attached primary importance to the interests of Amy and Jimmy. In the circumstances before us, we strike the balance in favour of the Appellant. We find, therefore, that the Appellant's removal would interfere with his family life in a sufficiently serious manner as to amount to a breach of the fundamental right protected by Article 8 and is not proportionate.

66. We find that the decision appealed against would cause the UK to be in breach of the law and its obligations under Article 8 EGHR and the Appellant's removal would have unjustifiably harsh consequences for him and his family such that a deportation would not be proportionate to any of the legitimate objectives identified in Article 8 (2) of the European Convention."

34. I should like to say that, right or wrong, the Tribunal's reasoning is conspicuous for the thought and care that evidently went into it.

THE UPPER TRIBUNAL

35. I need not summarise the reasoning of the UT, since the only issue for us is whether there was any error of law in the decision of the FTT.

THE APPEAL

36. The original grounds of appeal filed with the Appellant's Notice were those relied on in the prior application to the UT itself for permission to appeal to this Court. They take the form of a diffuse and unstructured four-page letter drafted by an official in the Home Office. The Treasury Solicitor did not respond to an invitation from the Civil Appeals Office to provide properly pleaded grounds of appeal. That is very regrettable. In order to assess whether permission to appeal should be granted this Court needs a succinct pleading which identifies in a focused manner the precise grounds of appeal relied on. In the result Sir Maurice Kay found it necessary to direct an oral permission hearing. In his submissions at that hearing Mr Sheldon formulated two grounds of appeal, on the basis of which Jackson LJ was persuaded to give permission. The substance of those grounds can be seen from his judgment, but they were never formally pleaded.
37. In the event things have moved on. The first ground of appeal was, in essence, that since the Rules were a "complete code" the FTT had been wrong in principle to carry out a separate article 8 assessment. In his oral submissions before us Mr Sheldon accepted that that ground had been undermined by the decision of the Supreme Court in Ali, and indeed that the Tribunal's self-direction at para. 52 of the determination as to the correct approach in foreign criminal cases was unimpeachable.
38. However Mr Sheldon maintained what was, broadly, his original second ground, namely that, although the Tribunal was correct in principle to adopt a two-stage approach, the details of its reasoning at the second stage showed that it had misunderstood the nature of the exercise in a case involving the deportation of a foreign criminal. He submitted that, once the Tribunal had concluded that the Respondent could not satisfy the requirements of paragraphs 399 and 399A, the only question for it was whether there were in his case "very compelling circumstances" capable of outweighing the public interest in his deportation. Instead, however, of confining itself to that question the Tribunal had proceeded at paras. 52-66 of the determination – or, more accurately, from para. 53 onwards – to carry out a full-dress article 8 assessment, referring in the process to a number of authorities (for example ZH (Tanzania), EB (Kosovo), Beoku-Betts and Zoumbas) which were not concerned at all with the case of foreign criminals. That was not only unnecessary but distracted the Tribunal from considering the only essential question and diluted the weight that it was required to give to the strong public interest in the deportation of the Respondent.
39. Mr Sheldon also had a more particular point about the references made by the Tribunal at paras. 62 and 65 to having made the interests of the children "our primary consideration" and to having attached "primary importance" to those interests. That language tends to suggest that it had fallen into the error of treating the interests of the children as not merely a primary consideration but the primary consideration: as to this, see the judgment of Laws LJ in SS (Nigeria) at para. 44 (p. 1016 E-F).
40. Mr Sheldon disavowed any submission that the Tribunal's decision was perverse, i.e. that it was impossible on the facts of this case to find that the test under paragraph 398 was satisfied; and he accordingly made it clear that he was seeking only a remittal of the appeal. But he submitted that the Tribunal had reached its conclusion by the wrong route and that it could not stand.
41. Mr Sheldon advanced his submissions most persuasively, but in the end I would not accept them. My reasons are as follows.
42. As regards the Tribunal's overall approach, there was nothing wrong in it starting its proportionality exercise by a full and careful assessment of the factors going into the "interference with family life" side of the scales: on the contrary, that is an essential part of the exercise, and it will look much the same whether the public interest in the other pan is the general public interest in maintaining a firm and fair system of immigration or the more specific and even weightier public interest in the deportation of foreign criminals. The important thing is that in the final section of the analysis, where it struck the necessary balance, the Tribunal quite explicitly reminded itself of the great weight to be attached to that interest: see in particular paras. 60, 61 and 65.
43. The way that the Tribunal dealt with the interests of the children has given me some pause. I see force in the criticism that it was inappropriate for it in the course of its assessment to refer to authorities which emphasised the weight to be given to the preservation of family life, particularly where children are affected, in a non-deportation context. In particular, I agree that the observations quoted from EB (Kosovo) and Zoumbas were inapt to the present case, since it is well-recognised that in a deportation context the splitting of families may well be proportionate, however contrary to the best interests of the children that may be. Clearly also the way in which the Tribunal expressed the obligation in section 55 of the 2009 Act is calculated to set alarm bells ringing. But it is necessary to concentrate on the dispositive part of the Tribunal's reasoning. The reference to EB (Kosovo) is in the earlier, scene-setting, part of its reasoning, and there is no sign that when the Tribunal came at paras. 62-65 to strike the necessary balance it started with any presumption that even in the deportation context it would rarely be justified to split up a family. Likewise it is clear that in those paragraphs the Tribunal did not treat the considerations that the Respondent's deportation would be contrary to the best interests of Amy and Jimmy and that they should not be blamed for their parents' conduct (as per the observation from Zoumbas) as a trump card or paramount consideration. Rather, it put those considerations into the balance and found that, in the particular circumstances of the present case, what was in the children's best interests outweighed the public interest in deportation: see in particular the way it is put in para. 65.
44. The question for us is not – given Mr Sheldon's disavowal of any perversity argument – whether that conclusion was wrong but whether it was reached by an illegitimate reasoning process. I do not believe that it was. For that reason we do not need to consider whether the decision may or may not have been at the generous end of the spectrum. But I am far from sure that it was. I can see why the Tribunal believed that the circumstances of the Respondent's offending diminished, at least to some extent, the public interest in his deportation. More significantly, the family structure here was unusual. If Amy and Jimmy had both been the children of the Respondent and Huyen there would have been a strong case that the whole family could, if that was the choice they made, have returned to Vietnam; and indeed the Tribunal said as much in considering the application of paragraph 399 (see para. 23 (2) above). But that would have meant Amy being parted from her father, Tam, with whom she had a close and important familial relationship even though she did not live with him. However I need not consider this aspect further.

DISPOSAL

45. I would dismiss this appeal.
46. I should say by way of postscript that this appeal was originally anonymised on a precautionary basis in accordance with the Court of Appeal's blanket practice in immigration and asylum cases. Anonymisation is, however, only continued after the grant of permission if good reason is shown. The issue was not in this case addressed at the permission stage and we accordingly asked for submissions. Having read the very helpful note on the applicable principles provided by Mr Sheldon and also the submissions of Mr Harris, with the Respondent's accompanying witness statement, I would not continue the anonymisation. The only possible reason for doing so would be if the publication of material contained in this judgment was liable to cause substantial harm to the two children, and I am not persuaded that that is the case.

Lindblom LJ:

47. I agree.

Black LJ:

48. I also agree.

Note 1    A similar attempt has now been made by Parliament, with the introduction of Part 5A of the 2002 Act by the Immigration Act 2014; but those provisions were not in force at the material time.    [Back]

Note 2    Mr Sheldon expressed some doubt as to whether that concession had in fact been made, but he accepted that he was not in a position to challenge what the FTT said.     [Back]

Note 3    The reference is to ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166.     [Back]

Note 4    This does not appear to be a direct quote from anything said in ZH (Tanzania), or any other authority of which I am aware, but it apparently reflected the Tribunal’s appreciation that in a case involving children the question should be formulated so as to refer expressly to their interests.    [Back]