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)
UPPER TRIBUNAL JUDGE MACLEMAN
Appeal No. DA/00058/2014

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/06/2017

Lord Justice Irwin:

Introduction

1. This case is an appeal by the SSHD against the Upper Tribunal, concerning the approach of the First-tier Tribunal ["FtT"], which allowed the Respondent's appeal from the decision by the SSHD to deport him as a "foreign criminal". It is now acknowledged that the original decision contained an error of law. However, even setting that error aside, we have concluded that the FtT did give proper weight to the public interest in deportation in such cases, and directed themselves properly in reaching their decision, understanding that compelling reasons were required before the Respondent's claim under ECHR Article 8 could succeed. It follows that the Upper Tribunal was correct in dismissing the appeal. The appeal therefore fails, as we informed the parties at the conclusion of the hearing. This judgment sets out my reasons for that decision.

The Facts in Summary

2. The Respondent is Jamaican. He was born on 15 November 1969. He came initially to the UK in March 2000. After one return to Jamaica, he came back to Britain and on 7 June 2001 was granted indefinite leave to remain. He and his first wife divorced in January 2003. By then he and his wife had separated and he had formed a partnership with Ms M. It is accepted by the Secretary of State that the relationship is genuine and enduring, despite a period of difficulty around 2009/2010. The couple have a daughter born in January 2008. The Respondent has an older daughter, born of the first marriage in 1994, who has lived with the Respondent and his partner. The older daughter is a Jamaican citizen, an adult and has indefinite leave to remain in the UK. The younger daughter is a British citizen, and has never lived elsewhere. The Respondent's partner is British and has never been to Jamaica. She has responsibility for her mother and very elderly grandmother, both living near the family.
3. Save when in custody, the Respondent has been in work and has supported his family. He has regularly spent some nights from home for work, but it is accepted that he has lived with his partner and children.
4. The Respondent has cautions and convictions. In May 2006 he was cautioned for criminal damage and in April 2007, cautioned for battery. No details are given to us. In September 2009 he was convicted of two offences of battery, in respect of which he was sentenced to a Community Order with a programme requirement. These were offences of domestic violence and the Respondent's partner was the victim. In evidence to the FtT, she emphasised that she had not wished to prosecute, although the Crown (perfectly properly) chose to proceed. The Respondent completed the necessary course, and the parties were reconciled.
5. In 2012 the Respondent pleaded guilty to an offence of assault causing actual bodily harm and possession of an offensive weapon. It was these convictions which led to the decision challenged. The Respondent received six months' imprisonment on each offence to be served consecutively, making a total of 12 months' imprisonment. As a consequence of the erroneous decision by the Appellant, which I will shortly outline, the judgment of the FtT sets out rather less detail of the offending than might otherwise have been helpful. However, the essential points were set down in the judgment as follows:

"44. The offences which triggered these deportation proceedings were the ABH and offensive weapon. This arose out of a dispute over parking and we have taken into account in full the Judge's sentencing remarks as follows:

"You are here to be dealt with for actual bodily harm and possession of an offensive weapon, namely a knife. You fall to be sentenced on the basis of your plea. The case was compromised by the Crown and I infer there were sound reasons to do so and I have not gone behind the basis of plea.

So far as the actual bodily harm matter, category 2, the counsel agreed with certain aggravating features, the presence of children, the ongoing effect on the victim and his family, and I've read the victim impact statement in this case.

The starting point on the actual bodily harm matter is 12 months imprisonment, it seems to me.

I have read your short note this morning, the pre-sentence report and I note your age, 42. You have very few convictions in fact or cautions in fact.

The mitigation here are guilty plea. There is an element of self-defence going over the top, and for those reasons I mitigate the sentence as much as I think I can, 6 months' imprisonment. For the offensive weapon matter my starting point is 9 months, 6 months having regard to your plea. Those two sentences will be consecutive, making a total of 12 months' imprisonment.

I've considered very anxiously whether custody is really necessary in this case, and I think it is, simply because society cannot tolerate the use of a knife, and that's the end of it."

45. This makes it clear that the judge considered the offences to be of a serious nature, especially the use of a weapon, but also acknowledged an element of self defence and reduced the sentences by half for the ABH and one third for the offensive weapon from what he found to be the starting points.

46. We have also considered the pre-sentence report prepared for the sentencing court and note the Appellant was assessed as being of low risk of re-offending and of medium risk of harm to the public should he offend in a similar manner. It is also stated in the report that because of his low risk assessment he was not suitable for the Anger Replacement Treatment Programme or the Thinking Skills Programme although the report writer did feel he would benefit from a short period of probation supervision to address cognitive deficits, anger management and victim awareness and empathy. The NOMS form which appears to have been prepared for a bail application and is dated 5^th February 2013 maintains the risk levels in the pre-sentence report; there is no current report."

6. As I have said, these convictions stimulated the decision to deport. The decision letter is dated 19 December 2013. The letter considers an asylum claim made by the Respondent, on the basis that his association with an opposition politician in Jamaica would put him at risk, and that he required humanitarian protection. This claim was rejected by the Appellant and dismissed by the FtT. I will say no more about it.
7. The letter went on to consider the offending, and the Article 8 claim. The critical passage in the letter addresses paragraph 398 of the Immigration Rules. Given the date on which the letter was written, the Rules were of course in the "old law" form (as the parties have termed it), that is to say Sections 32 and 33 of the UK Borders Act 2007, together with paragraphs 398 to 399B as in force from 9 July 2012 to 27 July 2014. The relevant passage of the letter reads:

"Sentence Length

72. Paragraph 398 of the Immigration Rules states 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."

73. The Secretary of State in assessing your 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.

Sentences between 12 months and 4 years' imprisonment

74. On 6 November 2012 at Peterborough Crown Court, you are convicted of assault occasioning actual bodily harm and having an offensive weapon for which you were sentenced on 28 November 2012 to 6 months imprisonment on the first count and to 6 months imprisonment to run consecutively on the second count. You have therefore been sentenced to a total aggregate sentence of 12 months.

75. The Immigration Rules state that where a person has been sentenced to a period of imprisonment of at least 12 months but less than 4 years, in assessing a claim that deportation would be contrary to Article 8 ECHR, the Secretary of State will consider whether paragraph 399 or 399A applies. If neither applies, it will only be in exceptional circumstances that a person's right to family and/or private life or other reasons would outweigh the public interest in seeing a person deported."

8. The critical point here is that the Appellant treated the Respondent as satisfying Rule 398(b): as having "been convicted of an offence for which" he had been sentenced to imprisonment of 12 months. He had not been so convicted. When this matter came to light – or at least into clear light – in the Respondent's Notice lodged in this appeal, the Appellant introduced a witness statement relevant to the point from Dr Peter Illing, a senior caseworker in the Appellant's Higher Litigation Team. Dr Illing, on behalf of the Appellant:

"… accepts that DB is not a person who fell within paragraph 398(b) of the Immigration Rules. Consequently, the Secretary of State's decision letter erred in citing that sub-paragraph .."

9. However, Dr Illing went on to say:

"7. Nevertheless, the Secretary of State was (and remains) of the view that DB's deportation would be conducive to the public good. The most recent sentence was not DB's first criminal conviction. In September 2009, he had been convicted at Peterborough Crown Court of two counts of battery, and received a 24-month community order. Further, as the Secretary of State set out at paragraphs 62-65 of the decision letter, she regards offences involving violence, sex, arson or drugs as particularly serious, and she takes into account the sentencing court's view of the seriousness of the offences in question. In this case, the sentencing judge said inter alia: "I've considered very anxiously whether custody is really necessary in this case, and I think it is, simply because society cannot tolerate the use of a knife, and that's the end of it."

8. In these circumstances, if the Secretary of State had appreciated that paragraph 398(b) did not apply to DB, she would have expressly said in the decision letter that she considered that paragraph 398(c) did apply to him in any event, that is: "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"."

10. The FtT hearing took place on 25 March 2014. There may have been some discussion of the basis for the deportation decision, but the matter was clearly not explored. The case proceeded on the basis that the Secretary of State had decided the Respondent fell within paragraph 398(b). Since the self-direction and reasoning of the FtT is at the heart of the argument, I will complete the procedural history before addressing that issue.
11. The FtT having allowed the Respondent's appeal, the Secretary of State appealed to the Upper Tribunal. The hearing was on 21 August 2014. The Respondent's representative did not appear, although the Respondent was present. After waiting to see if the legal representative would turn up, Upper Tribunal Judge Macleman heard the Appellant's arguments and rejected them, concluding that:

"9. … Reading the determination and the grounds from that point, I find that grounds contain nothing to identify error of legal approach. Rather, they insist on the one side of the assessment and disagree with the outcome. The panel reminded itself more than once of the strong public interest in removing foreign criminals.

10. The grounds do not expressly say that the decision was perverse, but their final proposition is that there could have been only one outcome, which is much the same thing. That goes too far.

11. The SSHD falls short of showing either that the panel should not have embarked upon the proportionality assessment which it undertook, or that the result of that assessment is perverse.

12. It is not shown that the making of the determination involved the making of an error on a point of law, so the determination shall stand."

12. The Secretary of State obtained permission to appeal on paper from Rafferty LJ on 7 March 2015. Unsurprisingly, the permission was granted on the basis that authority would be helpful on the approach to a person sentenced to "less than four years imprisonment"; in other words, an individual fulfilling paragraph 398(b). Subsequently, this case was joined with other cases to form part of the group of cases subsequently reported as NA (Pakistan) v SSHD [2016] EWCA Civ 662 [2017] 1 WLR 544. As matters progressed, it emerged that the Respondent was unrepresented, and the case was removed from the group. Thereafter, following a hiatus, Mr Symes came to represent him. Mr Symes spotted the problem with the basis of the decision, successfully sought an extension of time for the Respondent's Notice from Master Meacher and raised the point, in addition to meeting the submissions in the appeal. I commend the care and clarity of his approach.
13. It was on that basis the matter came before us, after the hearing in the NA (Pakistan) group, and after a range of other cases, culminating in the decision of the Supreme Court in Ali v Home Secretary [2016] UKSC 60 [2016] 1 WLR 4799.

The Submissions

14. Mr Tam QC for the Appellant began by addressing the error in the decision. His submission was that if this appeal succeeded, the case should be remitted to the Upper Tribunal, so that the issue of the basis of the decision could be explored in evidence. This, he said, was the more desirable course. He implied that a remittal so that a fresh decision could be taken as to whether the Respondent properly fell within paragraph 398(c) might lead to wasted time, since it was, in effect, inevitable that the Secretary of State would decide that he did. I found this last proposition surprising, on the facts of this case. At least on the information available, the Respondent could hardly be said to be a persistent offender, and given the sentences he received, it is not to be taken for granted that he caused serious harm, particularly where the sentencing judge accepted that there was an "element of self defence" and a low risk of re-offending. However, the proposal carried practical sense since, if the appeal failed, the matter would be at an end. If the appeal succeeded, the Upper Tribunal could address the matter. On that footing, the appeal proceeded before us, based on an admittedly erroneous original decision to deport.
15. Mr Tam's proposition can be simply stated. He granted some sympathy to the FtT in this case, because of the considerable number of cases clarifying the meaning of paragraphs 398, 399 and 399A, many of which post-dated the FtT decision in this case. That said, the submission is that the Tribunal wrongly engaged in a "free-standing" proportionality exercise when considering the Article 8 claim here, meaning that they did not direct themselves as to the need to find "compelling" or "very compelling" reasons to outweigh the very considerable weight of the public interest in deportation where the Secretary of State has concluded in favour of deportation. Through whatever prism one looks at Mr Tam's argument, the submission remains that in substance.
16. As will already be clear, I disagree. This Tribunal did not have the advantage of after-coming authority, Ali v Home Secretary in particular. They were therefore unable to read the crucial but economical passages in the judgments of Lord Reed (paragraphs 36-38) and Lord Thomas CJ (paragraphs 82-84), which now avowedly lay down the necessary principles and beyond which, in the words of Lord Thomas, "it should generally not be necessary to refer …". However, the Tribunal did make reference to the key authorities and principles which were available to them, and in my view, must be taken to have drawn the correct conclusions.
17. On that last point it is helpful to note that, echoing paragraph 11 of the judgment of the Upper Tribunal set out above, Mr Tam made it explicit that he was not submitting that the decision was perverse or irrational. Mr Tam conceded that properly directing themselves it was open to the Tribunal to reach the decision they did. The submission is directed to the self-direction.
18. Early in their reasons, the Tribunal noted how they began their approach:

"27. … In considering how we approach this we have had regard to the case of MF (Nigeria) [2013] EWCA Civ 1192, Kabia (MF: paragraph 398 – "exceptional circumstances") [2013] UKUT 569 (IAC) and Iftikhar Ahmed [2014] EWHC 300 (Admin). It is clear from these decisions that the new Rules relating to Article 8 claims put forward by foreign criminal seeking to resist deportation are a complete code and the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence. We have also had regard to the weight to be attached to the public interest in deporting foreign criminals and the need for deterrence and to express society's revulsion at such criminality (N (Kenya) [2004] EWCA 1094 and SS (Nigeria) [2013] EWCA Civ 550)."

19. It will be noted that SS (Nigeria) contains the trenchant stricture by Laws LJ that to avoid deportation, a foreign criminal must advance "a very strong case indeed". As the passage quoted above makes clear, the Tribunal were fully aware, from their citation of MF (Nigeria), that such a conclusion could only arise in "exceptional circumstances". That was the context in which they approached the necessary proportionality exercise.
20. They must also be taken to have been alive to the other relevant remarks in MF (Nigeria). In paragraph 27 of MF (Nigeria) the Court explicitly recognised that the Rules in question "were an index of the enhanced importance the Secretary of State attaches to the public interest in the deportation of foreign criminals". In paragraphs 41/45 the Court accepted the need for "exceptional circumstances" not as a requirement for an "exceptionality test" but as a measure of the difficulty of fulfilment of the test. This was the thrust of the Secretary of State's submissions: see paragraph 40 of MF (Nigeria).
21. Having considered the facts the Tribunal returned to the law in paragraph 47 of their judgment. They cited N (Kenya) v Home Secretary [2004] EWCA Civ 1094 [2004] 1NCR 612, emphasising not merely the need to deter but also "the need to express society's revulsion" at serious crime. Although this Respondent's criminality was less serious than that in N (Kenya) the Tribunal marked that there had been, in some way, the use of a knife, an important factor. Having then proceeded to analyse the factors in favour of the Respondent (then of course "the Appellant"), they concluded as follows:

"52. We have then balanced all these matters against the public interest in removing foreign criminals. We have paid due deference to the Secretary of State's position that this Appellant's deportation is in the public interest and to the case of N (Kenya). We have noted in the case of MF that the Appellant there had entered the UK, illegally, in 1998 and had not claimed asylum until 2006. In November 2009 he was convicted of handling stolen goods and possession of a false instrument and was sentenced to 18 months imprisonment. He had while awaiting the conclusion of his criminal matters married a British citizen, which was therefore at a time when his immigration status was precarious and this was known by all concerned. There was also a child but this was his step child rather than his own. The Court of Appeal however found that the Upper Tribunal were entitled to strike the balance in favour of the Appellant. Clearly, the distinguishing features of the Appellant before us is that he was legally in the UK at all times and had worked and paid taxes. He had legitimately established his family and private life with his partner and child and had been able to bring his daughter from a previous relationship to the UK to live with them. We have therefore come to the conclusion that the balance in this proportionality exercise in pursuance of the exceptional circumstances set out in paragraphs 397 and 398 just falls in favour of the Appellant. Accordingly we are satisfied that his appeal against the deportation order should be allowed."

22. In my view, the Upper Tribunal was correct in its review of the FtT. The FtT directed themselves properly. This was not a "free-standing" proportionality exercise, but one conducted within the confines of careful self-direction, and with a proper recognition of the great weight placed in the public interest on the deportation of foreign criminals. When pressed in the course of argument as to whether anything would satisfy the Appellant of a correct approach, short of recitation of the phrase "very compelling reasons", it appeared to me Mr Tam was in some difficulties in explaining his position. His answer was that there had to be some explicit recognition of the weight of public interest. It seems to me that comes close to a demand for a form of words in the judgment, a demand which would not be satisfied by a rational judgment making reference to the correct principles and authorities. Such arguments are more often advanced by the Home Secretary's opponents in such cases, than by the Home Secretary. A judgment, conceded to produce a reasonable outcome, based on proper principle and reciting appropriate authority, cannot properly be struck down as failing to recite the mantra of the moment.
23. For those reasons I would dismiss this appeal.

Lord Justice Sales:

24. I agree.

Lord Justice Davis:

25. I also agree.