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)

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/4/2017

Lord Justice Simon:

Introduction

1. This is an appeal from a decision of the Upper Tribunal (Immigration and Asylum Chamber) (the 'UT') made on 18 March 2015, allowing the appeal of the respondent (the 'SSHD') from a decision of the First-tier Tribunal (Immigration and Asylum Chamber) (the 'FtT') made 4 months earlier, on 11 November 2014.
2. The short issue that arises on the appeal is whether the UT was correct to find that the FtT had applied the wrong legal test when allowing the appeal of the appellant ('DR') against the decision of the SSHD to deport him following his conviction for a criminal offence and the imposition of a qualifying sentence.
3. If the UT's decision was correct, and the application by the FtT of the wrong legal test was material to its decision, then the UT was entitled to remake the decision which, in the event, was adverse to DR. If the UT's decision was incorrect then it is accepted that the decision of the FtT allowing DR's appeal against his deportation must be in reinstated.
4. Since the point is a narrow one and the background is well known to both parties, the facts can be set out shortly.

The facts which were not in issue on the appeal

5. DR is a national of Jamaica. He first arrived in this country in November 2000. After expiry of his leave to remain as a visitor he claimed asylum. His claim was rejected and he then absconded. On 7 September 2002, he married AR, a UK national. In February 2003, he was removed at public expense as an overstayer. After returning to Jamaica he was granted entry clearance to enter the United Kingdom as the spouse of AR, and returned in June 2003. In June 2005, he was granted indefinite leave to remain and in July 2010 he and his wife had a daughter, Shanei.
6. On 11 October 2013, following a 3-day trial DR was convicted of an offence of producing a controlled class B drug (cannabis). The crime was committed at a property which, as the trial judge found, was dedicated to the production of cannabis. The judge described the operation as 'relatively sophisticated, and established to produce significant quantities of cannabis for commercial supply'. The judge also found that DR was a 'trusted employee' of those managing the criminal operation, and that his 'role involved an operational aspect to it'. These findings were necessary to establish the culpability and harm of the offending for the purposes of the Sentencing Council Guidelines for drug offences. On this basis, he was sentenced to a total term of 2½ years' imprisonment. On 19 June 2014, a deportation order was made against him under section 32(5) of the UK Borders Act 2007 and was served together with a Notice of Decision.
7. The pre-sentence report prepared for the sentencing hearing, dated 10 October 2013, had assessed DR as posing a medium risk of serious harm to the general public through the production of Class B drugs. The report stated that in order to address this risk he needed to demonstrate that he accepted responsibility for his offences [§§35].
8. Whilst he was serving his sentence, his daughter Shanei was looked after by her mother AR, with support from AR's mother. At the time of the hearings before the FtT and the UT, Shanei was 4 years old. There was medical evidence in the form of a letter dated 21 November 2013 to the effect that AR had an Obsessive Compulsive Disorder and was suffering from Anorexia Nervosa. No further medical evidence detailing AR's progress or lack of progress was available.

The decision of the UT which is challenged

9. The crucial paragraph in the UT's decision is [FtT§22]:

Following consideration of the arguments, I found that the [FtT] judge made an error of law. The judge's references to paragraphs 398(b), 399 and 399A and her findings in paragraph [34] were in respect of the Rules that were in place in July 2014. Those Rules referred to deportation being 'conducive to the public good'. Those rules were amended on 28 July with the insertion of 'public interest' in addition to 'public good'. The 'remaining provisos' of paragraph 399 were replaced with the provisos 'it would be unduly harsh for the child to remain in the UK without the person who is to be deported.' The same considerations apply to the partner. I find that as a result of her consideration of the old Immigration Rules the judge failed to consider the public interest in deporting [DR]. I appreciate that the [SSHD]'s decision was made on 19 June 2014. However, by virtue of paragraph of A362 of the Immigration Rules, the judge was required to consider the Rules as at 28 July 2014 because article 8 was raised in the context of a deportation order. I find that although the judge cited MF (Nigeria), she did not apply the principle that in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who do not satisfy paragraphs 398, 399 or 398A.

10. This paragraph gives rise to two questions: first was the UT correct to find that the FtT had applied a legal test that had been superseded as at 28 July 2014; and secondly was it correct to conclude that, in doing so, the FtT had given insufficient weight to the public interest in deporting criminals?

Question 1

11. For present purposes, the differences between the statutory and rules regime before and after 28 July 2014 can be summarised.
12. Before 28 July 2014, Paragraphs 398(a)-(c) of the Immigration Rules set out described the deportation of criminals as 'conducive to the public good'. After 28 July 2014, this was amended to read 'conducive to the public good and in the public interest.' Before 28 July 2014, Paragraph 399(a)(ii)(a) of the Rules referred to 'whether it would be reasonable to expect the child to leave the UK'. After 28 July, this test was removed and replaced by a test of whether it would be 'unduly harsh' both in relation to a child or a partner, for either to remain in the UK without the person to be deported or either to relocate to the country where the person is deported, see amended Paragraphs 399(a)(ii)(a) and (b), and 399(b)(iii).
13. The phrases 'public interest' and 'unduly harsh' were also used in the amendment to the Nationality, Immigration and Asylum Act 2002 which introduced s.117C.

117C Article 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal ('C') who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

...

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

14. In my view, the UT was correct in its answer to the first question. Although, there are references to a test of 'unduly harsh' in the FtT decision (see FtT §§39, 40 and 45), this was a reference back to s.114C(5), cited in FtT decision at (FtT§31). The only reference to the applicable criteria in the Rules is a reference to deportation being 'conducive to the public good' and 'whether it would be reasonable to expect the child to leave the UK', (FtT§34). The FtT was plainly referring to the wording in the Rules that had been superseded on 28 July 2014. This was, as the UT found, an error of law. In my view it was also a material error of law such as to entitle the UT to remake the decision by reference to the applicable law.

Question 2

15. By the time the case reached the UT the SSHD accepted that DR had a genuine and subsisting relationship with both AR and Shanei. On this basis the UT identified the issue as being whether (a) it would not be unduly harsh for Shanei to remain in the UK without DR, and (b) whether it would be unduly harsh for AR to remain in the UK without DR.
16. The conclusion of the FtT on this question was summarised (FtT§45):

Taking all these matters into account, in particular [AR's] medical condition which is not fully controlled, the fact that her ability to cope with Shanei in the absence of the appellant is very much dependent on her mother who has a terminal illness and may not be able to assist in the long term, the burden of supporting [AR] and [Shanei] child will fall to Social Services and lead to potential future behavioural problems by the child, I find that it would be unduly harsh for the appellant to be deported.

17. In my view Mr Payne's criticisms of a conclusion expressed in this way was justified. First, there was no reference to DR's criminal conviction which had to be weighed in the balance and to which great weight should have been given. It was against this consideration that the harsh effects of deportation and whether it was 'undue' had to be measured. Secondly, the FtT engaged in speculation: as to AR's medical condition and her dependence on DR, as to the assistance to AR in caring for Shanei that might or might not be available, and to whether the 'burden of supporting AR and Shanei' would fall on the Social Services (and why that was material). Importantly, the FtT failed to weigh these factors against the public interest in deporting criminals.
18. That is not to say that this was an easy case. The UT set out the circumstances which rendered the separation of DR from AR and his daughter harsh for each of them. The judge (UT§45) recorded that she found the case finely balanced on the evidence. She bore in mind that DR's deportation did not have to lead to the permanent splitting up of the family, since he could apply for revocation of the deportation order and the application would be considered in the light of the current circumstances. The judge also accepted (UT§46) that AR was able to meet Shanei's long term needs. The judge then considered the position of Shanei at (UT§48).

It is concern for Shanei that makes this case finely balanced.

19. The judge went on to make a careful assessment of the child's position, before putting into the balance the public interest in deporting DR who had committed a serious criminal offence. She concluded (UT§52):

I find on the evidence that the public interest in deporting [DR] outweighs the impact his deportation would have on his wife and child.

20. Despite the submissions advanced on DR's behalf by Ms Namagabi, I am not persuaded that the UT erred in this conclusion.
21. In any case that is finely balanced it may be said that a different decision could have been made; but in my judgement the UT's conclusion, following consideration of the applicable rights under article 8 of the European Convention on Human Rights 'through the lens of the new rules', per Sales LJ in SSHD v. AJ (Angola) [2014] EWCA 1636 at [39], is not one with which this court ought to interfere.
22. For these reasons, I would dismiss the appeal.

Lady Justice Arden

23. I agree.