England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM)
UPPER TRIBUNAL JUDGE FRANCES
DA/00340/2014

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/05/2018

LORD JUSTICE MCFARLANE :

1. On 6 February 2014 the respondent, a citizen of Colombia who arrived in the UK in October 1978 when aged 11 and who has resided here for nearly 40 years since that date, was served with a deportation order. His appeal against that order was allowed by the First Tier Tribunal (Judges Gibb and Beach) in July 2015. The Secretary of State's appeal against the FTT decision was dismissed by the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Frances) on 12 January 2016. The Secretary of State now appeals against the tribunal decisions, permission for a second appeal having been granted by Lord Justice Elias in February 2017.
2. The tribunal decisions and the issuing of the present appeal occurred at a time prior to the UK Supreme Court's decision in the case of Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] 1 WLR 4799 which aimed to provide clarity with respect to the law relating to the deportation of foreign criminals.
3. This appeal, therefore, in common with a number now coming before this court, whilst issued at a time when the law relating to deportation may not have been entirely clear, now falls to be determined in the light of the Supreme Court decision in Hesham Ali together with subsequent related decisions of the Court of Appeal.
4. As counsel for the Secretary of State, Miss Catherine Rowlands, conceded, the point of law now relied upon by the Secretary of State is in reality a perversity challenge to the FTT determination on the basis that the particular factual elements of the present case were incapable, either individually or taken together, of establishing the "very compelling circumstances" relating to the European Convention on Human Rights, Article 8 sufficient to justify the otherwise automatic deportation of a foreign criminal who has been sentenced to a period of between 12 months and 4 years imprisonment as required by Nationality, Immigration and Asylum Act 2002 ("NIAA"), s.117C and Immigration Rules, r398, 399 and 399A.
5. In the circumstances, save for asserting an error in the tribunal's application of the law to the facts of this case, this appeal does not raise any point of law for determination. My Lord and I, having read the papers in the case and heard the oral submissions of Miss Rowlands on behalf of the appellant, and without calling upon Mr Gordon Lee on behalf of the respondent, formed the clear view that the appeal could not succeed. In the circumstances, this is a short judgment, prepared in accordance with the current practice of this court.

Factual background

6. Although the FTT considered a substantial body of written and oral evidence at a hearing conducted over the course of 3 days, the relevant factual background can be stated shortly.
7. The respondent arrived in the UK in October 1978 at the age of 11 years and, thereafter, remained here having been granted, on two occasions, leave to remain. In 1987 he was sentenced to 3 years imprisonment for possession of a controlled drug with intent to supply. Between 1987 and 2010 he received 8 convictions for 11 offences made up of offences against the person, public order offences or offences relating to the police or justice system. On 17 September 2010 he was convicted of an offence of wounding with intent to do grievous bodily harm and was sentenced to a period of 45 months imprisonment. It was this latter period of imprisonment which triggered the Home Secretary's decision to order his deportation.
8. In addition to the history of previous convictions, the FTT heard evidence and considered police intelligence reports as to the respondent's general level of criminality, albeit that that behaviour did not lead to any specific criminal conviction. Having considered that evidence the FTT concluded (at paragraph 111) :

"From the evidence before us, we find that it is likely that the appellant has been involved in criminal activities in the past for which he was not arrested or charged. The appellant's criminal convictions suggest an individual who has been involved in a criminal and somewhat chaotic lifestyle but also an individual who has, to some extent, been able to hide this from his family."

9. The FTT considered evidence as to the state of the relationship between the respondent and his only child, a daughter, who was then aged 15 years. The respondent did not live with his daughter or her mother, and there was conflicting evidence as to the amount of contact he had with her. On this element the FTT concluded (at paragraph 116):

"We were left with very little evidence to substantiate the contact which the appellant states he has with his daughter and there was little, if any, evidence of any real involvement in his daughter's life. We find that there was insufficient evidence to show that the appellant has a genuine and subsisting parental relationship with a British national child."

Thereafter, the FTT made no further reference to the respondent's relationship with his daughter in the course of the Article 8 analysis that was conducted.

10. The evidence showed that the appellant had visited his home country of Colombia from time to time and the FTT concluded, within the context of NIAA 2002, s.117C(4)(c) that the respondent had failed to establish that there were "very significant obstacles" to his reintegration to Colombia were the deportation order to stand.
11. A further factor before the FTT related to the relationship that the respondent had established with his current partner following his release from prison. The tribunal accepted that this was "a strong relationship".
12. The final two factors considered by the tribunal are of central relevance in the context of this appeal because, in addition to the relationship with his partner, they formed the basis of the tribunal's conclusion on the issue of "very compelling circumstances" justifying a decision not to deport.
13. The first factor relates to evidence of the respondent's rehabilitation in the 5 years, as the period then was, following his conviction in 2010 and, secondly, the time that the respondent had spent living in the UK and the degree of integration that he had with family members, and the community more generally, here. The tribunal's findings on these two points are at paragraphs 120 and 121 as follows:

"120. The appellant has not come to the attention of the police for almost 5 years. His last conviction was in 2010 and there was no recent police intelligence to suggest that he had committed any further offences since that date. The appellant and his family all talk of the appellant being a changed man since his last offence. The appellant is in employment and has a new relationship with an Italian national. The appellant showed insight into his offending and was able to express how he felt that he had changed and how he now deals with aggressive or violent situations. The Judge's sentencing remarks noted that the appellant went far above what was required for self defence hence his conviction for section 18 wounding. The appellant's reaction to such events has markedly changed since his conviction but perhaps of most importance is the fact that the evidence is that the appellant has removed himself from his previous chaotic lifestyle. There was no evidence of such a lifestyle before us now and the appellant's partner's evidence was particularly compelling in this regard.

121. The appellant has lived in the UK for over 30 years. Although he has visited Colombia, he would, in effect, be a stranger to life in Colombia given his length of time in the UK and the strength of his connections to the UK. He spent the majority of his formative and all of his adult years in the UK and is integrated into UK life. His primary language is English and he has studied and worked in the UK. All of his close relatives are in the UK including his parents and a brother with whom the appellant has a close relationship. They are very supportive of the appellant and have remained supportive of him despite his convictions. The appellant's partner is also supportive and hopes to marry the appellant in the future. She is working in the UK running her own business and as a freelance tutor."

The legal context

14. The Secretary of State must make a deportation order in respect of a "foreign criminal" as defined by the UK Borders Act 2007, s.32. Section 33(2) of the 2007 Act, however, establishes an exception "where removal of the foreign criminal in pursuance of the deportation order would breach a person's convention rights".
15. NIAA 2002, ss.117A to 117D sets out the public interest considerations relevant to the evaluation of claims under ECHR Article 8 in the context of "foreign criminals" who would otherwise fall for automatic deportation.
16. The provisions of central relevance to the present appeal are within in s.117C as follows:

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

(2) The more serious the offence committed by a foreign criminal, the greater 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.

(4) Exception 1 applies where:

a) C has been lawfully resident in the United Kingdom for most for most of C's life,

b) C is socially and culturally integrated in the United Kingdom, and

c) there would be very significant obstacles to C's integration into the country which C is supposed to be deported.

…

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2."

It is accepted that the greater includes the lesser and that the "very compelling circumstances" test in s.117(6) also relates to those sentenced to imprisonment of less than 4 years, although that category is not expressly referred to in the sub-section: see NA(Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662.

17. The relevant Immigration Rules mirror the statutory provisions. Rule 398(b) provides that "the deportation of the person from the UK is conducive to the public good and in the public interest 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." In such a case. where the person claims that their deportation would be contrary to the UK's obligations under Article 8, the Secretary of State in assessing that claim "will consider whether paragraph 399 or 399A applies and, if it does not, 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."
18. In the present case the relevant paragraph is 399A, the terms of which mirror those of s.117C(4).

FTT decision

19. On the basis of the findings that I have already recorded, having held that the respondent had failed to establish "very significant obstacles" with respect to his reintegration into Colombia, this case did not fall for determination within the terms of s.117(4) or rule 399A. The FTT therefore turned to consider the Article 8 claim outside that rule having expressly and correctly directed itself to the terms of rule 398 to the effect that the public interest in deportation would only be outweighed by other factors "where there are very compelling circumstances over and above those described" in the various exceptions.
20. The FTT quoted extensively from the current case law as it then was. In particular reference was made to the ECHR decision in Maslov v Austria [2009] INLR 47.
21. Under the heading "very compelling circumstances", the FTT considered the general evidence of the respondent's integration into the community in the UK since his arrival at the age of 11, taking account of the fact that he spent his formative years here. Account was taken of the members of his family who reside in the UK together with the more recent evidence of his relationship with his partner. The FTT then made the evaluation set out at paragraphs 120 and 121 which are quoted in full above.
22. The FTT then described the final analysis leading to its conclusion at paragraphs 123 to 125:

"123. The Paragraph 399A exception appears to have its origin in the Maslov principle, but it has been given a very significantly harsher twist in the final requirement of "very significant obstacles to integration". There could, therefore, be said to be an important gap between the private life exception of the Immigration Rules and statute on the one hand and the Maslov approach on the other, If the Maslov approach is introduced into the proportionality test envisaged at paragraph 44 of MF(Nigeria) then the fact that the appellant has not lived in Colombia from the age of 11 and has spent over 30 years in the UK meaning that he has been settled in the UK for most of his life would amount to a significant additional circumstance over and above the private life exception.

124. The evidence of reform and rehabilitation is also of importance. This is also a matter not mentioned in the exceptions. It is a significant factor in the Uner and Maslov criteria. The appellant has not committed any further offences since his conviction in 2010 and has not come to the attention of the police intelligence during this time. There is evidence that he has completed courses and that he has shown some insight into his offending. There is also evidence that he has moved away from his previous lifestyle. Whilst the likelihood of re-offending does not carry much weight in assessing the public interest it is still of some significance.

125. We have read Chege, and we note what is said at Paragraph 26 about the meaning of 'compelling', namely having a powerful and irresistible effect, and being convincing. We also note the observation that the word 'very' indicates the very high threshold. In deportation cases great weight must of course be given to the public interest in deporting foreign national criminals. However, there may be circumstances where the public interest is outweighed by the appellant's particular circumstances. We find in light of our findings above that that in this appellant's particular circumstances, the very compelling circumstances test is met. "

The appeal

23. The appeal as it is now presented on behalf of the Secretary of State accepts that the FTT considered each of the factors that were relevant to the Article 8 evaluation, but challenges the attribution of weight to each factor. In short terms it is submitted that insufficient weight was afforded to the serious nature of the respondent's final conviction together with the FTT's findings as to his general criminal behaviour, and, conversely, too much weight was attributed to the quality of the respondent's family and private life ties in the UK, the degree to which he had become integrated into life in the UK over the course of the previous 3 decades and more and the evidence as to his rehabilitation and reform.
24. In opening her submissions Miss Rowlands submitted that the FTT had erred in its evaluation of the importance of the respondent's relationship with his daughter. This point did not represent an auspicious start to the Secretary of State's submissions. The FTT had expressly concluded that the respondent did not see his daughter on a regular basis, there was little, if any, evidence of any real involvement in her life and insufficient evidence to show that he had a genuine and subsisting parental relationship with her. Thereafter the daughter is not mentioned at any stage in the tribunal's analysis. Despite accepting those points as to the content and structure of the tribunal's judgment, Miss Rowlands nevertheless maintained the submission that the tribunal must have, by implication, attached unjustified weight to the father/daughter relationship or failed to take account of the fact that the daughter was, at the time of the hearing, on a 4 month holiday in Colombia. That submission was, in the light of the clear words of the tribunal's decision, wholly unsustainable.
25. In the course of submissions Miss Rowlands accepted that the FTT were correct to hold that the approach described by the ECHR in Maslov must be incorporated into an Article 8 evaluation conducted outside the express terms of the rules in a case such as this. Her submission was that individually, or collectively, the facts in the present case were not capable of supporting a finding of very compelling circumstances. In particular, whilst an individual who had arrived in the jurisdiction at a young age and had stayed for a significant length of time might establish very compelling circumstances, in the present case the weight to be attached to those circumstances must, necessarily, be reduced by regard to the serious criminal activity represented by the respondent's convictions and the tribunal's more general findings of criminality. Whilst Miss Rowlands is correct in that submission, in order to succeed in this appeal it is not only necessary to demonstrate that another tribunal might have afforded greater or lesser weight to one or other factor, but also that no reasonable tribunal could, on the findings made, have concluded the Article 8 evaluation and the finding of "very compelling circumstances" in favour of the respondent.
26. Miss Rowlands submitted that even if the circumstances of this case were sufficiently significant to demonstrate that the respondent had had "a series of near misses" in bringing his case within the express provisions in the rules, that state of affairs could never result in an Article 8 evaluation outside the rules concluding that "very compelling circumstances" existed. I disagree. The purpose of an Article 8 evaluation which is conducted after a foreign criminal has failed to bring his case within s.117C or the express provisions in the rules, is to look at the same factors again, together with other relevant factors not specifically covered within the terms of the statute or the rules, within the context of Article 8 albeit with due regard to the public policy in favour of deportation of foreign criminals and expressly taking account of the "very compelling circumstances" threshold.
27. Recently, this court (McFarlane, Floyd and Sales LJJ) considered a similar challenge in the case of Mwesezi v Secretary of State for the Home Department [2018] EWCA Civ 1104. In that case the Secretary of State had succeeded before the Upper Tribunal in overturning a FTT decision in favour of an appellant in circumstances which involved a foreign criminal who has come to this country at a young age, had committed offences as an adult and in respect of whom there were no very significant obstacles to his integrating back into his country of origin. However, it is important to note that the appellant's offending in that case was considerably more serious and placed him in the category of serious offender for the purposes of s.117C, as explained in NA (Pakistan). Also, the evidence of rehabilitation was not as strong as in this case. The Upper Tribunal had overturned the FTT decision on the basis that, on the facts of that case, a conclusion that "very compelling circumstances" existed was not one that was reasonably open to the tribunal on the facts as it had found them to be. In short, the Home Secretary's perversity challenge had succeeded. This court dismissed the appellant's appeal.
28. The present case is, in my view, different. As Mr Lee rightly submits, an appellant court must afford due deference and respect to the evaluation of an expert tribunal charged with administrating a complex area of law in challenging circumstances (per Baroness Hale in AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678 at paragraph 30). As Miss Rowlands accepts, in the present case the FTT identified each and every relevant circumstance, both for and against deportation. There is no error of law in terms of the identification of the relevant provisions and the structure of the tribunal's decision making. The appeal solely turns on the attribution of weight. The tribunal had heard oral evidence over the course of 3 separate days from a range of witnesses, including a police officer. As the terms of its decisions demonstrate, at all times the tribunal kept in mind the seriousness of the respondent's criminal behaviour, conducted over a period of years, and had in mind the "great weight" that must attach to the public interest in deporting foreign national criminals. In its final paragraph, the tribunal refers to the phrase "very compelling circumstances", observes that "very" indicates a very high threshold and observes that the word "compelling" means circumstances which have a powerful, irresistible, and convincing effect. It is hard to contemplate how the tribunal could have demonstrated any greater focus on the public policy factors in favour of deportation.
29. Nevertheless the tribunal concluded that the respondent's age at arrival, the length of time that he had lived in this country, the family and private life ties he had with his family, his new partner and more generally and, finally, the evidence of reform and rehabilitation were sufficient to establish very compelling circumstances. With regard to the latter, rehabilitation, factor the tribunal, in terms, held that the likelihood of re-offending did not carry much weight, but was still of some significance; an observation which is wholly at odds with the Secretary of State's case before this court.
30. Whilst another specialist tribunal might have reached a contrary conclusion, it is, in my view, not possible to hold that the FTT in the present case arrived at a conclusion which was insupportable on the evidence or otherwise perverse. That being the only point in the appeal, the appeal must fall to be dismissed.

Lord Justice Sales

31. I agree.