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)
UT Judge Smith

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/11/2018

Sir Patrick Elias :

1. The appellant in this case is a Jamaican national. He was born in 1980. He left Jamaica with his mother when he was four and lived with her in the USA until he was about 14 when he came to the UK. He has no family or friends in Jamaica. He was given Indefinite Leave to Remain in July 2000 very shortly after his 20^th birthday. By then he had a daughter, Keira, who was born in December 1997. He separated from the mother in 2004 and Keira lived with her mother until she began attending college near her father, when she began to live with him during the week.
2. On 12 August 2011 the appellant was sentenced to a term of 4 years imprisonment for possession of class A controlled drugs, heroin and cocaine, with intent to supply. He was also subjected to a confiscation order of some £20,900 and is paying off the sum due.
3. On 28 June 2013 a Deportation Order was made by the Secretary of State under s. 32 (4) of the UK Borders Act 2007 and s. 3(5) (a) of the Immigration Act 1971 on the basis that his removal was conducive to the public good. Mr Forrester immediately appealed against the order on the grounds that it disproportionately interfered with his family and private life. Thereafter the appeal has had something of a chequered history. It was upheld by the First Tier Tribunal ("FTT") before FTT Judge Lester and a non-legal member on 13 December 2013 but an appeal to the Upper Tribunal ("UT") was successful on the grounds that the FTT had not given adequate weight to the public interest in the deportation of serious criminals. The case was remitted to a differently constituted FTT. It came before FTT Judge Gibb. The parties agreed that the original primary findings of fact made by the Lester Tribunal should stand, and on the basis of those findings and other evidence, FTT Judge Gibb allowed the appeal in a decision dated 1 May 2015. The Secretary of State appealed that decision too and was again successful. In a decision dated 2 February 2016 UT Judge Smith set aside the FTT decision on the grounds that it had been based on a material error of law. Given that there were no disputes as to fact, she retained the decision and made a fresh determination, dated 6 July 2016, following a reconvened hearing with Deputy UT Judge Hill QC. In that decision the UT held that there was no legal justification for setting aside the Deportation Order. Mr Forrester now appeals those two inter-related decisions. In essence his case with respect to the first is that there was no material error by FTT Judge Gibb and therefore no proper legal basis for UT Judge Smith to set aside his decision. With respect to the decision at the reconvened hearing, Mr Forrester submits that the UT reached a decision which it was not entitled to reach.

The relevant legal provisions

4. The considerations which need to be taken into account when determining whether a decision made under the Immigration Acts will breach a person's article 8 rights are set out in Part 5A of the Nationality, Immigration and Asylum Act 2002. Section 117B sets out the considerations which are relevant in all cases where the issue arises whether the public interest in immigration control justifies the interference with a person's article 8 rights. They include, for example, the fact that it is in the public interest that a person should speak English and be financially independent. Section 117C, which is central to this appeal, identifies additional considerations which are relevant in cases involving foreign criminals. That section, so far as is material, is as follows:

"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.

(4)  Exception 1 applies where —

(a)  C has been lawfully resident in the United Kingdom 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 to which C is proposed to be deported.

(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.

(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."

5. These statutory provisions reflect and give statutory force to rules in the Immigration Rules themselves (which are in fact a little more detailed). Rule 399 broadly reproduces exception 1 and rule 399A reproduces exception 2.
6. The proper approach to the construction of these provisions was summarised by Lord Reed giving a judgment with which each of the six other members of the court agreed in Hesham Ali v Secretary of State for the Home Office [2016] UKSC 60; [2016] 1 WLR 4799, para. 38:

"The implication of the new rules is that paragraphs 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 paragraphs 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 the SS (Nigeria) case [2014] 1 WLR 998. 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 paragraphs 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 …"

7. Since the present case falls within s.117C (6), the public interest required deportation unless there were "very compelling circumstances, over and above those described in Exceptions 1 and 2."

The decision of FTT Judge Gibb

8. FTT Judge Gibb set out in considerable detail the extensive findings of fact made by the original Lester FTT, which had not been disputed. He also heard evidence from the Appellant, his father and aunt, and his daughter Keira. He also received written evidence from various other family members, Keira's school staff and probation and other officers concerned with the appellant's parole. FTT Judge Gibb was very much alive to the fact that the public interest in the deportation of criminals is not merely to protect against the risk of further offending; it is also to deter others and to ensure that the public maintain confidence in the effective treatment of foreign criminals: see e.g. the observations of Wilson LJ, as he then was, in OH (Serbia) v Secretary of State for the Home Department [2009] INLR 109 para. 15. Judge Gibb recognised too that in a case like this "the scales start heavily weighted in favour of deportation" (para. 24) and that "most appeals would fall to be dismissed" (para. 29). It would only be in exceptional circumstances that the test would be satisfied; the threshold, he said, 'is very high" (para. 38). He accurately identified that the problem with which he had to grapple was "how to assess on a particular set of facts whether the very compelling circumstances test was met" (para. 25).
9. The judge concluded that in the particular circumstances of the case, the test was satisfied. There were a number of factors which led him to that conclusion.
10. First, in the judge's view the first exception was satisfied in the sense that deportation would not have been in the public interest had the sentence been for less than four years. The judge concluded that there would be very significant obstacles to the appellant's integration into Jamaica. He had spent all of his adult life in the UK and had no links with Jamaica and no family there. The judge noted that the circumstances constituted an example of the distinction drawn by the Strasbourg court in the case of Maslov v Austria [2009] INLR 47 between deportation amounting to return and deportation amounting to exile. This was tantamount to exile.
11. Second, the second exception was also satisfied. The judge had the benefit of hearing evidence from the appellant and his daughter and statements from her mother and her teachers. He concluded that the appellant had an unusually strong family bond with his daughter who was at an important stage in her education and development. He was satisfied that deportation would have a damaging effect on the daughter and would be unduly harsh within the meaning of exception 2. Further, it would be unduly harsh to expect her to go to Jamaica and leave her mother and the rest of her family. In reaching this conclusion the judge was obviously impressed with Keira's evidence, as he was entitled to be. He observed that "nobody at the hearing could have been left in any doubt about the emotional force of the appellant's daughter's evidence" (para. 31).
12. The judge then identified other factors which in his view militated in favour of the appellant. These were the fact that he had a good work record and that the evidence of reform and rehabilitation was "exceptionally good." The assessment of re-offending, for example, was very low; and the probation officer spoke powerfully of the effect on the appellant of his prison sentence and the period on licence. Mr Forrester had shown genuine remorse and a proper appreciation of his wrongdoing. Whilst the judge gave some weight to this factor, he said in terms that he was

"… acutely aware of the fact that, from N (Kenya) onwards, it has been an important legal point that low risk of re-offending should not be given too much weight. As I have noted above, the protection of the public is only one of the public interest factors, and is less important that the principle of deterring other foreign criminals and marking social revulsion at the nature of the crime." (para. 36)."

13. The judge also noted that the sentence was at the lowest end for someone subject to the "compelling circumstances" criterion and that therefore the public interest in deportation, whilst undoubtedly strong, was not as powerful as it would have been had the sentence been longer. Finally, the judge observed that the wider public interest considerations referred to in section 117B did not weigh particularly against the appellant. These included the fact that he was not a drain on public funds; his immigration history was good; he spoke English; and his private life was not formed whilst his presence in the UK was precarious. The judge then made this important observation (para. 38):

"Having identified that there are matters over and above the exceptions, there is the question of whether these amount to 'very compelling circumstances'. That brings me back to where I started, namely with the observation that 4 year sentence cases can succeed, that it is very difficult to do so and the threshold is very high, but there is little or no guidance on the type of facts that might meet that threshold. My reasons for deciding that the test is met in this case are, in essence, threefold: the Maslov point about this particular detention amounting more to exile than return; the severity of the adverse impact on the appellant's daughter in view of the particular nature of their relationship; and the exceptional evidence of remorse and rehabilitation. This last point removes one significant element, namely the protection of the public, although it does not impact on the other public interest elements, namely deterrence and marking social revulsion."

14. The judge then summarised his overall approach in para. 39 as follows:

"In the final analysis I have to look at the case as a whole and make a decision on whether the test is met in this particular case. I understand that a contrary position could be taken … . My overall conclusion, however, is that the evidence is compelling in that it does have a powerful effect and is convincing; and that it is very compelling in that it meets the very high threshold."

The UT reason for setting aside this decision

15. There were a number of grounds of appeal. The first and principal ground was that it was alleged that the judge had erred by assuming that if both exceptions were satisfied, that was of itself enough to satisfy the compelling circumstances test without more.
16. UT Judge Smith accepted that submission. She referred to para. 33 of FTT Judge Gibb's decision when he said this:

"It is clear and accepted, that success on either family life or private life exceptions is not sufficient because those exceptions are closed to the appellant because of the length of his sentence. The question to be answered is whether there are very compelling circumstances over and above these exceptions. The first reason for my decision is that the two can be combined. If the appellant would have succeeded on one or the other, then the combination of both is a matter over and above either exception…." (Emphasis in the original.)

17. UT Judge Smith understood counsel to be arguing before her that the judge had concluded in para. 33 that if each of the two exceptions was satisfied, that necessarily meant that the compelling circumstances test was satisfied. I would agree with UT Judge Smith that if this was the way in which FTT Judge Gibb reached his decision, it would be a clear error of law. I also accept, in fairness to the decision of UT Judge Smith, that her construction of what the judge said in para. 33, if read alone, is a legitimate one. But when the judgment is read as a whole, I do not think that it is the best reading of that paragraph, and in any event by the end of the judgment the judge had in my view plainly adopted and applied the correct test.
18. I am not sure that it was ever put to FTT Judge Gibb that the mere combination of the two exceptions without more would inevitably amount to compelling circumstances. In para. 8 he refers to counsel's argument as being that there was both a very strong private life argument and a very strong family life argument; and again at para. 17 he summarises the appellant's case as being that "the combination of private life and family life, and the strength of each, in the light of the low risk of reoffending and serious harm, were enough to meet the test." (Emphasis added.)
19. When the judge made the observations he did at para. 33, it was immediately after he had given his reasons for concluding that the two exceptions were satisfied. I suspect that he may have been intending to say that given the strength (as he saw it) of the family and private life considerations, they were indeed sufficient in the particular circumstances to amount to compelling circumstances. Another possible reading of the paragraph is that at this stage he was saying no more than that the combination of the two exceptions constitute circumstances over and above either exception taken on its own, without intending to say anything about whether it amounted to compelling circumstances. The emphasis on the words "over and above" lends some support to that construction.
20. The real gravamen of this ground of appeal is that the judge assumed that once something over and above an exception was established, this would amount to compelling circumstances. But I do not think that this is a sustainable reading of the judgment as a whole and in particular, in the light of para.38, reproduced at para. 13 above. In that paragraph the judge unambiguously recognised that the question was not simply whether there were circumstances over and above one of the exceptions; the issue was still whether these constituted very compelling circumstances, sufficiently compelling to outweigh the very strong presumption in favour of deporting someone with a four year sentence. The judge fully appreciated that it was not enough to identify factors over and above the exceptions. It was still necessary to ask whether they amounted to very compelling circumstances.
21. Mr. Harland, counsel for the Secretary of State, accepted that if paragraphs 38 and 39 were read together, there was nothing wrong with the judge's approach and no material misdirection. That was a realistic and fair concession. Indeed in a sufficiently strong case there may be factors relating to a particular exception which can amount to something over and above the exception constituting compelling circumstances within the meaning of the statute. This point was made by Jackson LJ in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662 where he explained that circumstances over and above the exceptions do not necessarily mean that the test can only be satisfied where there are circumstances or considerations which are independent of the exceptions. There may be cases where the circumstances are compelling because the exception is not merely satisfied but is engaged in a particularly robust way so as to provide a very strong article 8 claim capable on its own of amounting to compelling circumstances. Mr Harland's submission was that FTT Judge Gibb's decision had already been tainted by the error identified by the UT Judge and could not safely be relied upon thereafter.
22. For reasons I have given, I do not accept that submission. Notwithstanding some infelicities and ambiguities in the language, I am satisfied that reading the judgment as a whole, the judge asked the right questions and approached the issue of compelling circumstances by looking at all the evidence in the round. He was ultimately impressed in particular by the strength of the family and private life considerations, and – although to a much lesser extent – the exceptional evidence of remorse and rehabilitation.
23. It has not been suggested that the conclusion reached by the FTT Judge was perverse, and given that in my view there was no misdirection, it follows that there was no basis for interfering with the decision of the FTT. In the circumstances it is not necessary to consider those grounds of appeal directed to the rehearing in the UT.

Disposal

24. For the reasons set out, I would allow the appeal.

Lord Justice David Richards:

25. I agree.

Lord Justice Underhill:

26. I also agree.