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
		23/06/2017

SIR STANLEY BURNTON:

Introduction

1. This is an appeal by WZ, a citizen of China, from the decision of the Upper Tribunal (The Right Hon Lord Boyd of Duncansby and Upper Tribunal Judge Martin) allowing the Secretary of State's appeal against the determination of the First-tier Tribunal, which had allowed WZ's appeal against the deportation order made against him. The Secretary of State proposed to remove him to China.
2. Like the Upper Tribunal, I shall refer to WZ as "the Appellant", and to the Respondent as "the Secretary of State".

The facts

3. The Appellant was born on 18 October 1972 and is a Chinese national. He arrived in the UK in March 1998. He made an asylum claim in March 1998 which was refused. His appeal against that refusal was dismissed on 10 August 1999. The Claimant was given temporary admission with a reporting requirement. In October 2006, the Claimant ceased reporting and absconded. He formed a relationship with Dan Lin, another Chinese national. They have two children, Lin Jun Zheng, born in 2007, and Sophia En Qi Zheng, born in 2009.
4. In 2009 the Appellant and his family applied for leave to remain. He, his partner and their two children were granted indefinite leave to remain exceptionally outside the Immigration Rules. Later in 2010 the two children were naturalised as British citizens. In October 2011 Ms Lin also naturalised as a British citizen.
5. On 24 May 2012 the Claimant was convicted of being concerned in the production of cannabis. His plea of not guilty was rejected and he was sentenced to 2 years imprisonment. I infer from that sentence that he was involved in the large-scale production of cannabis; hence also the sentencing judge's reference to the production of cannabis being done for potentially large profit. The Appellant was released on bail from immigration detention on 27 June 2013.
6. On 31 December 2013 the Secretary of State gave the Appellant notice of her decision that he was liable for automatic deportation and that none of the exemptions applied.

The determinations of the First-tier Tribunal and the Upper Tribunal

7. The Appellant appealed. The First-tier Tribunal heard his appeal on 30 June 2014 and promulgated its decision on 15 July 2014. There was no dispute that the Appellant had lived in the UK for 16 years and had genuine and subsisting relationships with his partner and children. The First-tier Tribunal found that he did not qualify for leave under paragraphs 399(a) and 399(b) of the Immigration Rules in force at the date of the hearing because the children had another parent who could care for them in the UK, and there were no insurmountable obstacles to the parties returning to China. Both parents were from China and both needed an interpreter at the FTT appeal hearing. It was also found that he could not meet the private life exception to deportation at paragraph 399A of the Immigration Rules. Accordingly, the removal of the Appellant was justified for the purposes of Article 8.2 of the European Convention on Human Rights.
8. The First-tier Tribunal nonetheless allowed the appeal under Article 8 on the basis that the Appellant's deportation would be disproportionate. In paragraphs 20 to 23 of the determination, the Tribunal stated:

"20. The appellant had been sentenced to a period of 2 years imprisonment, which is more than 12 months but less than 4 years. As a result, paragraph 398(b) is engaged, so that paragraphs 399 and 399A apply, which relate to an appellant with a genuine and subsisting relationship with the child and partner. The respondent has accepted, and we have found, that the appellant has such a relationship, both with his partner and his 2 children. However, with regard to the children, the appellant cannot meet the requirements of the Rules as his partner could care for the children, although she struggled she was able to do so while the appellant was in prison. With regard to his relationship as a partner, the appellant could not meet the Rules that he had not been in the UK with leave for 15 years. In addition, we accept that the appellant would have difficulties returning to China having been absent for such a long period and there is the additional factor of the one child policy. However, the appellant and his partner are both from China and speak the language as their first language and both had to give evidence through an interpreter. While we acknowledge the difficulties we find no insurmountable obstacles to the parties returning to China. With regard to private life, the appellant had not lived in the UK for 20 years and clearly has cultural and language ties to China, neither did he deny that he still had family in China. We find that the appellant cannot meet the requirements of the Rules with regard to the presumption in favour of deportation.

21. In considering the proportionality test outside of the Rules, as provided for in the case of MF, our starting point are [sic] the Razgar tests. We have found that the appellant has established a family life in the UK and also found that … an interference with his family life would engage Article 8 ECHR. His removal would be in accordance with the law and for a legitimate purpose, as he is liable for automatic deportation for an offence for which [sic] involves the protection of the public. The respondent accepted that the case of Zambrano applied, however this case makes it clear that where a child or remaining spouse are UK citizens… it would not be possible to require a family unit to relocate outside of the EU. This appellant was neither a persistent offender and neither was he involved in the importation of significant quantities of class A drugs, in which case Zambrano accepts that removal may still be appropriate. The case of ZH Tanzania… underlines that it is in a child's best interests [sic] to be brought up by both parents. There is no dispute as to the parentage of the children and that the appellant is actively involved in their upbringing. In considering the proportionality, we refer to our above comments on this being a first offence and the opinion in the OAYsys report of the appellant being low risk, as well as the references from prison officers. The Tribunal is satisfied that the family could not be expected to return to China and to remove the appellant alone would not be in the best interest [sic] of the children.

22. … We refer to our findings above and we have accepted that Article 8 ECHR is engaged and that it would be disproportionate to the needs of the public interest to remove the appellant.

23. As this is a case involving automatic deportation under s 32(5) of the 2007 Act, only the Exceptions of S33 are applicable. We have found exceptional circumstances or other reasons why the appellant should not be deported which may apply under paragraphs 397 to 399 do apply. We find that the public interest served by automatic deportation is outweighed on the grounds of proportionality."

9. The Upper Tribunal heard the Secretary of State's appeal on 25 September 2014 and promulgated its decision on 18 November 2014. By that date there had been a change in the Immigration Rules, which came into effect on 28 July 2014. Whereas the previous Rules had provided that it would only be "in exceptional circumstances" that deportation would not be appropriate if neither paragraph 399 nor paragraph 399A applied, the new Rules provided that "the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A".
10. The Upper Tribunal allowed the Respondent's appeal. It stated:

"10. The FTT found that there were no insurmountable obstacles to the parties returning to China yet then found that the family could not be expected to return to China and to remove the appellant alone would not be in the best interests of the children. In our view these seemingly contradictory findings have not been explained or reasoned by the FTT. We agree with the submissions of the Secretary of State that in considering whether there are exceptional circumstances it is necessary to look beyond the factors set out in paragraphs 399 and 399A, Section 55 of the 2009 Act and ZH (Tanzania) are cited for the proposition that it is in the best interests of the child to be brought up by both parents. No attempt has been made however to apply this to the facts of this case or consider it against the considerable public interest in the deportation of foreign criminals. We are satisfied that the FTT's failure to properly analyse and give reasons for its decision constitute a material error of law. We therefore allow the appeal."

11. In remaking the decision, the Upper Tribunal dismissed the Appellant's appeal. It summarised the facts as follows:

"13. The appellant is 42 years old. As noted above he is a citizen of China and has been in the UK since 1998. The immigration history is more fully set out in the Secretary of State's decision letter of 31 December 2013. The appellant has been in a relationship with his present partner, DL, since 2006. They were married in a Chinese wedding ceremony in 2007. They have two children, a boy L who is now aged seven and a girl S who is four. Both children are British citizens. DL was naturalised as a UK citizen on 19 October 2011.

14. The appellant worked as a chef for ten years but has not recently been in full time work. His wife works as a waitress. Her hours are 11am to 11pm with a break. The job is low paid. The family are in receipt of benefits. Since his release from prison the appellant has been looking after the children taking them to school, preparing meals and putting them to bed as well as doing the general housework."

12. The Upper Tribunal set out the provisions of paragraph 399 of the Immigration Rules, of which only paragraph (a) was relevant, and continued:

"20. Turning to (a) there is a genuine and subsisting relationship with a child who is a British citizen. Both the children are British. Accordingly the issue is whether it would be unduly harsh for either of the children to live in China or for the children to remain in the UK without the appellant.

21. The test in the rules is "unduly harsh". In our opinion this recognises that such decisions may have inherently harsh consequences. However the decision maker is required to look beyond these consequences to the particular facts of the case and ask whether there may be factors which go beyond those that might ordinarily be expected as a result of a decision to deport and which impact in a particularly harsh manner on the qualifying person.

22. The decision maker must also find that it would be unduly harsh for the children to live in the country to which the deportee is deported and it would be unduly harsh for the child to remain in the UK without the deportee. Accordingly if it were found that it was unduly harsh for the child to remain in the UK without the deportee that would not be sufficient unless it was also harsh for the child to live in the country to which the person was deported.

23. A decision that obliges children to move with their parents to a foreign country may be seen as harsh although many people migrate for a variety of reasons taking their children with them. More importantly unless the separation is in the interests of the child an enforced separation of a child from one of their parents may be regarded as harsh. In this context however it is well to remember that interests of public policy may well require decisions to be taken that^-have harsh consequences on others. The most obvious and pertinent example is imprisonment which separates the prisoner from his family for a period of time.

24. In carrying out an assessment the decision maker must also look to the provisions of section 55 of the Borders Citizenship and Immigration Act 2009 and to the leading case of ZH (Tanzania). The children's interests are a primary consideration.

25. The children are British. They were born here and have spent all their lives here. They are in education although Sophia will still be in nursery. If the children were to go to China they would require to enter a new educational system. The language of instruction would be Chinese and not English. They would be in a new social and cultural environment. They would lose old friends and require to find new ones.

26. On the other hand they are both relatively young. They come from a Chinese background. Although their mother is a UK citizen she is Chinese by origin. English language skills are such that she required to give evidence to the FTT through an interpreter as did the appellant. It is assumed that the children speak Chinese at home. If the children were to go to China with the appellant they would have the support of both their parents in integrating into a new environment.

27. The FTT considered the possible impact of the one child policy. They did not consider that that was an important factor in their decision and while it may have implications for the parents it is difficult to see how it would impact on the children themselves.

28. Taking account of all these matters we see no reason to depart from the conclusion reached by the FTT, who had the advantage of seeing the appellant and his wife and assessing their evidence, that there are no insurmountable obstacles to the parties returning to China. Accordingly we cannot say that it would be unduly harsh for the children to live in China.

29. If the appellant were to be deported and the children remained in the UK then they would be deprived of the society and guidance of the appellant and all the other natural features that might be expected from a father. Moreover the family is not wealthy. Visits to China to see their father may be difficult and attempting to sustain a parental relationship by electronic means has obvious limitations. The reality is that .the children may face permanent separation arid loss of contact with their father. We can also accept that while the appellant's wife coped with the children on their own during his time in prison it is a more difficult proposition on a long term basis.

30. We can accept that the circumstances may be seen as particularly harsh. Given that we have found that it would not be unduly harsh to expect the family to move with the appellant to China we do not need to decide-whether it would be unduly harsh in terms of the rules for the children to remain in this country after the appellant is deported.

31. In terms of rule 398 if the rules 399 and 399A do not apply the public interest in deportation will only be outweighed by other factors where there are very compelling reasons over and above those described in paragraphs 399 arid 399A.

32. In MF (Nigeria) the Court of Appeal described the rules as a complete code. The rules have changed a little since then. In particular the words that appeared at that time in rule 398 were "exceptional circumstances". These have now been replaced by "very compelling circumstances". We do not consider that much turns on the new language; we note that the court said (at paragraph 43) that where rule 399 and 399A do not apply very compelling reasons will be required to outweigh the public interest in deportation.

33. There is another alteration to the effect that the compelling circumstances are over and above those described in rule 399 and 399A. We simply take this to mean that having failed to succeed on the rules the appellant cannot then succeed on the second part of the test on the same facts.

34. In our opinion there are no factors outwith the rules which would entitle us to conduct a separate and free assessment of the appellant's article 8 claim. We noted that the FTT in their assessment of proportionality referred to the fact that this was a first offence, that the appellant was assessed as low risk arid that there were positive references from prison officers. That is all no doubt true but we do not consider that these factors outweigh the strong public interest in the deportation of what Parliament has classed as foreign criminals."

The parties' contentions

13. The essential submission of the Appellant is that the decision of the First-tier Tribunal disclosed no error of law. It followed that the Upper Tribunal erred in allowing the Secretary of State's appeal, and its decision should be set aside. The Secretary of State contends that the Upper Tribunal was right to set aside the determination of the First-tier Tribunal, and that the Upper Tribunal's decision discloses no legal error that could justify the Appellant's appeal.

Discussion

14. In my judgment, the Upper Tribunal was right to set aside the determination of the First-tier Tribunal. Quite apart from the reasoning of the First-tier Tribunal, I cannot see how a tribunal properly applying the law as it was at the date it heard the Appellant's appeal, and giving the public interest in the deportation of a person sentenced to 2 years' imprisonment the weight that was appropriate, could have allowed his appeal. I take into account that until he committed his offence he had been of good character, and that the reports before the Tribunal showed that he was unlikely to reoffend. I bear in mind that he has an established family life in this country, that his family and children have UK nationality, and that his wife would have to give up work to look after the children if he were removed and they were to remain in this country. However, none of these facts takes his case out of the ordinary. Deportation necessarily results in the break-up of the deportee's family if they remain in this country after his removal.
15. One of the factors that has to be taken into account as substantially weakening the Appellant's case is that neither he nor his wife speak English sufficiently well to give evidence without an interpreter. The Upper Tribunal rightly inferred that Chinese is the language of the family, a fact that would render it far easier for the entire family to live in China. Indeed, section 117B of the Nationality, Immigration and Asylum Act 2002 now provides:

"(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English –

(a) are less of a burden on taxpayers, and

(b) are better able to integrate into society."

16. Furthermore, the factors relied upon by the Appellant as justifying his remaining in this country are all factors that are addressed in the Immigration Rules. In effect, the First-tier Tribunal decided that the Appellant could not on the facts rely on paragraph 399(a) of the then Immigration Rules, but then on the same facts considered to determine the application of that paragraph, decided that his removal would breach his and his family's rights under Article 8. However liberally and widely the requirement of exceptionality was interpreted (as to which see the judgment of the Court of Appeal in MF Nigeria [2013] EWCA Civ 1192 [2014] 1 WLR 544), the Appellant does not satisfy it.
17. I also agree with the Upper Tribunal that the First-tier Tribunal failed to give proper reasons for its decision. Having read the decision of the First-tier Tribunal, I do not understand how they came to the conclusion they did. I also criticise it for failing to take account of the English language difficulties of the Appellant and his wife, and the fact that they and their children are Chinese speakers. This was a relevant factor, even before and without the enactment of section 117B of the 2002 Act.
18. Lastly, it is evident that the First-tier Tribunal took into account, on the basis of the Secretary of State' concession, the extravagant view then prevalent of the principle laid down by the ECJ in Zambrano [2011] All ER (EC) 491. It is now clear that that principle is that:

"… there is really no basis for asserting that it is arguable in the light of the authorities that the Zambrano principle extends to cover anything short of a situation where the EU citizen is forced to leave the territory of the EU. If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights may then come into the picture to protect family life as the Court recognised in Dereci, but that is an entirely distinct area of protection."

See paragraph 63 of the judgment of Elias LJ (with whom the other members of the Court agreed) in Damion Harrison (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 1736. The deportation of the Appellant would not compel his wife and children to remove to China, although they might choose to do so.

19. For very much the same reasons I consider that the Upper Tribunal was correct to uphold the Secretary of State's appeal. In fact, by the time of the hearing before it, the legal position had become clearer. Sections 117B and 117C of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, had come into force on 28 July 2014. The Immigration Rules required "very compelling circumstances" for deportation to be avoided if (as the Upper Tribunal correctly held) neither paragraph 399 nor paragraph 399A applied. Neither of those paragraphs applied, and there are no such circumstances in this case.
20. Lastly, since the determination of the Upper Tribunal, the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 [2016] 1 WLR 4799 has confirmed, as summarised in the headnote to the WLR report:

"… the special feature of a deportation decision was that it involved the application of provisions of the Immigration Rules which had been made by the Home Secretary in the exercise of a responsibility entrusted to her by Parliament, and which Parliament had approved, and so, while it was the duty of an appellate tribunal as an independent judicial body to make its own assessment of the proportionality of deportation in any particular case on the basis of its own findings as to the facts and its understanding of the relevant law, it should attach considerable weight to a general assessment of proportionality on the basis of which the Home Secretary had adopted a policy contained in the Immigration Rules; that, pursuant to the new rules, great weight should generally be given to the public interest in the deportation of a foreign offender who had received a custodial sentence of more than 12 months, and a custodial sentence of four years or more represented such a serious level of offending that the public interest in the offender's deportation would almost always outweigh countervailing considerations of private or family life; that, where the circumstances did not fall within paragraphs 399 or 399A of the Statement of Changes in Immigration Rules (1994) (HC 395), as inserted, the public interest in the deportation of such offenders could generally be outweighed only by very compelling countervailing factors …"

21. At paragraph 53, Lord Reed, who gave the majority judgment, said:

"… the [Immigration] Rules are not law (although they are treated as law for the purposes of section 86(3)(a) of the 2002 Act), and therefore do not govern the determination of appeals, other than appeals brought on the ground that the decision is not in accordance with the Rules: see para 7 above. The policies adopted by the Secretary of State, and given effect by the Rules, are nevertheless 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, …. 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."

22. In my judgment, the First-tier Tribunal failed to give due weight to the strength of the public interest in deportation; the Upper Tribunal correctly did so.

Conclusion

23. For these reasons, I would dismiss this appeal.

Addendum

24. I would add one comment. In Hesham Ali Lord Reed JSC said, at paragraph 14:

"Sections 32 and 33 [ of the UK Borders Act 2007] 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."

As appears above, the appeal to this Court was heard some 2½ years after the Upper Tribunal promulgated its determination. Such a delay, which is not now unusual, is incompatible with an "expeditious and effective" procedure for deportation. Indeed, it is important that all immigration cases, which have such an important impact on the individual concerned, should be heard and determined speedily. The resources of the Court of Appeal are at present, and have been for some time, under very considerable strain. This inevitably leads to delays, such as that in the present case which in my view are unacceptable. There is plainly a strong public interest in the court having the resources it needs to ensure that such appeals are determined with the expedition they require.

LORD JUSTICE FLAUX

25. I agree.

LORD JUSTICE LINDBLOM

26. I also agree.