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 Canavan
DA014812014
[2015] UKAITUR DA014812014

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/04/2018

Lord Justice McCombe:

1. This is an appeal from the order of the Upper Tribunal (Immigration and Asylum Chamber) ("UT") (Upper Tribunal Judge Canavan) promulgated on 21 October 2015 whereby the UT dismissed an appeal by the appellant from the order of 24 April 2015 of the First-Tier Tribunal (Immigration and Asylum Chamber) ("FTT") (Tribunal Judge I. Ross). The FTT, for its part, had dismissed an appeal by the appellant from a decision of the respondent of 16 July 2014 to deport the appellant to Zimbabwe. Permission to appeal to this court, which had been refused by the UT, was granted to the appellant by Laws LJ by an order of 30 June 2016.
2. The appellant is a national of Zimbabwe who first entered the United Kingdom on 8 December 2001 and claimed asylum. The asylum claim was refused on 17 December 2001 and an appeal against that refusal was dismissed on 22 February 2002. All rights of appeal were exhausted by 12 March 2002. Temporary admission had been granted on 19 December 2001. This was renewed on 4 March 2003. The appellant was granted indefinite leave to remain in the UK on 27 May 2010. On 12 June 2013 the appellant was arrested on suspicion of fraud, involving obtaining an NHS bursary, employment with an NHS Trust and having claimed various benefits while working. She was subsequently convicted (on her pleas of guilty) of four offences of using a copy of a false instrument and three offences of making false representations to make a gain. The offences were committed in the period between 2007 and 2013. She was sentenced in the Crown Court at Snaresbrook on 21 August 2013 to three sentences of 7 months' imprisonment which were ordered to be served consecutively to each other, resulting in a total sentence of 21 months' imprisonment.
3. On 8 October 2013 the appellant was served with a notice of liability to deportation and on 4 April 2014 a decision was made to make a deportation order. This first decision was withdrawn on account of the appellant's illness. However, a new decision was made on 16 July 2014 to the same effect. It was against this decision that the appellant appealed to the FTT and the UT and now appeals to this court.
4. While neither of the decision letters is particularly clearly expressed, the appellant accepts that "as the case developed" it "emerged" that, in making the decision in issue, the respondent had concluded that the appellant was a "persistent offender who shows a particular disregard for the law" within the meaning of paragraph 398 (c) of the Immigration Rules. It was/is also contended by the respondent that the appellant was/is a "foreign criminal" and a "persistent offender" within the meaning of s.117D(2)(c)(iii) of the Nationality, Immigration and Asylum Act 2002 ("the 2002") (as amended by the Immigration Act 2014 as from 28 July 2014).
5. The appellant does not fall within the provisions for automatic deportation applicable in respect of offenders sentenced to at least 12 months imprisonment, enacted in s.32 of the UK Borders Act 2007, because, while she was sentenced to a total term of imprisonment of 21 months, that was made up of individual sentences of 7 months ordered to be served consecutively. By s.38(1) of the 2007 Act reference to a person sentenced to a period of imprisonment of at least 12 months,

"…does not include a reference to a person who is sentenced to a period of at least 12 months only by virtue of being sentenced to consecutive sentences amounting in aggregate to more than 12 months".

However, a person who is not a British citizen remains liable to deportation, if "…the Secretary of State deems his deportation to be conducive to the public good" (s.3(5) of the Immigration Act 1971) and by s.5 of the 1971 Act, if a person is liable to deportation, a deportation order may be made against him/her.

6. Under the Immigration Rules (para. 396) there is a presumption that it is in the public interest that a person liable to deportation should be deported. Where, as here, the person concerned contends that removal would infringe his/her rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms ("ECHR"), the Rules make further provision in paragraph 398 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 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 at least 4 years;

(b) 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; or

(c) the deportation of the person from the UK is conducive to the public good and in the public interest 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,

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."

7. It was found that the appellant fell within paragraph 398(c) and that her case did not fall within paragraphs 399 or 399A. In the respondent's view there were no other exceptional/compelling circumstances, over and above those provisions, outweighing the public interest in deportation.
8. Accordingly, the decision to deport was made and from that decision the appellant appealed.
9. From 28 July 2014, when a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's rights under Article 8, sections 117A to 117D of the Nationality, Immigration and Asylum Act 2002 (added by the Immigration Act 2014) apply. Apart from general considerations applying in all such cases (under s.117B of the Act), in the case of a "foreign criminal" the provisions of section 117C apply 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 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.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted."

10. Again, Exceptions 1 and 2 did not apply in this case. A "foreign criminal" is defined in s. 117D(2) of the 2002 Act (as amended) as follows:

"(2) In this part, "foreign criminal" means a person—

(a) who is not a British citizen,

(b) who has been convicted in the United Kingdom of an offence, and

(c) who—

(i) has been sentenced to a period of imprisonment of at least 12 months,

(ii) has been convicted of an offence that has caused serious harm, or

(iii) is a persistent offender."

11. As with the "automatic deportation" provisions of s.32 of the 2007 Act, a person is not sentenced to at least 12 months imprisonment for the purposes of s.117D(2) solely by virtue of receiving consecutive sentences of less than 12 months which, in aggregate, amount to 12 months or more: s. 117D(4).
12. Accordingly, under these provisions it was the question whether the appellant was a "persistent offender" that was the essential issue in the present case.
13. The FTT's conclusion is to be found in paragraphs 24 to 26 of the Decision as follows:

"24. I find that the appellant was sentenced in relation to serious matters. She committed serious fraud over several years. As noted in the probation report, "since 2006 she had been working, been obtaining social housing and had made fraudulent applications for funding from the NHS by way of a bursary and from DWP by way of jobseeker's allowance. Bursary payments and allowances totalled £29,083.15. Allowances included additional money as she claimed she had children with her in the UK. She provided false birth certificates to that effect and additionally provided a false French passport to officials when applying for the bursary (under her married name) and for social housing".

25. Notwithstanding that the appellant is not assessed as posing a risk of serious harm to others and her risk of re-conviction is assessed as low, I am satisfied on the whole of the material before us that the appellant's deportation is conducive to the public good.

26. I find that the appellant is a foreign criminal as defined by section 117 (2) (iii) as a persistent offender."

The conclusion on the question of "compelling circumstances" over and above paragraphs 399/399A of the Rules was this:

"29. I cannot find any circumstances in this case which could realistically be described as being very compelling over and above a parental/partner relationship or having been lawfully resident for most of her life and integrated here. In relation to her length of residence in the UK, the appellant was granted ILR in 2010 which would not have occurred had her offending history which began years before, been discovered. The appellant's mental health is now stable having suffered a temporary breakdown in her mental health whilst in prison. Her health is not a very compelling circumstance. The appellant's mother is in Zimbabwe and I am not satisfied that all of her children are now in South Africa. The fact that she is Zimbabewean is not of itself a very compelling circumstance."

The FTT considered the proportionality of the deportation decision in paragraphs 32 and 33 of its Decision as follows:

"32. Notwithstanding that paragraphs 399 or 399A are not applicable, I now consider whether deportation is proportionate. In relation the appellant's private life, I note the comments of the sentencing Judge who stated, "I really do not know what I can believe about you. Your entire existence in the United Kingdom has been based upon falsehood". I agree with these remarks and I accord no weight to a private life formed as a result of fraud and deception. The appellant's son who is in the United Kingdom is now an adult. No evidence has been provided by him as to any dependency between him and the appellant. He is only in the United Kingdom because the appellant obtained ILR which she would never have been granted had her offending been discovered earlier.

33. The deportation of foreign criminals is in the public interest and the appellant has been convicted of serious offences. I find that the public interest requires the appellant's deportation."

14. On appeal to the UT, the Judge said the following:

"14. While the First-tier Tribunal Judge did not give detailed reasons for concluding that the appellant was "a persistent offender" for the purposes of the definitions contained in the immigration rules and the NIAA 2002 I find that this discloses no material error of law [26]. The First-tier Tribunal Judge clearly set out the nature of the offences and the long period of time over which they were committed [7-8]. It was self-evident from the evidence that the appellant could properly be described as a "persistent offender" because she had a number of convictions for various different dishonesty offences that were carried out over a period of time. It cannot be said that the First-tier Tribunal Judge's findings were outside the range of reasonable responses in relation to the ordinary interpretation of the word "persistent" i.e. continuing to occur over a long period."

The Judge of the UT also considered that, irrespective of the conclusion that the appellant was a persistent offender, the appellant remained liable to deportation and could only resist it if she came within paragraphs 399 or 399A of the rules or there were "very compelling circumstances" over and above those factors. The FTT Judge had made a full proportionality assessment under the Rules which could not be criticised.

15. Mr Walsh's primary submission in support of the appeal, cogently argued as it was at the hearing before us, can be adequately summarised by reference to paragraph 9 of his Replacement Skeleton Argument for the Appellant. The point made is:

"9. … When a decision to deport is taken by the Secretary of State, and when an appeal is considered by the Tribunal against such a decision, the test is whether currently the deportee 'is' a persistent offender. The focus is on the present. Plainly, the Secretary of State or Tribunal could reasonably have concluded the Appellant was a persistent offender at the time of the Appellant's convictions and during the course of her offending. But the Rules look to the present. An assessment of whether the person is currently a persistent offender requires assessment of his current circumstances, report on her current offending (if any) and risk of re-offending. In the instant case there was no suggestion of current offending, no suggestion of any offending since she left prison (April 2014). Further, in a report of the Probation Service provided to the Respondent, dated 6 January 2014, the Appellant was assessed as there being 'no concerns' as to a risk of serious harm to anybody (as there was no history of violence) and low risk of re-offending (2% in first year after release from prison and 5% in second year), based on objective assessments ('The Offender Group Reconviction Scale (OGRS)'). The Probation Service considered in August 2013 that, in view of the circumstances of the offending, there was a low risk of re-offending and no risk of serious harm to others. The UT fastened onto the fact of the offending as in itself amounting to justification of the 'self-evident' conclusion that the Appellant was a persistent offender at the date of hearing. It is clear from paragraph 14 of the UT decision that the Tribunal did not appreciate that it is the status at the date of hearing that prevails and that 'persistent offender' is not a permanent status."

16. Mr Walsh also challenged the UT's alternative finding, on the basis that, if the appellant was not truly a persistent offender, it skewed (my word, not his) the assessment of the proportionality of the respondent's decision. In view of my conclusion of the first point, it will not be necessary to address this further ground of appeal.
17. Mr Pilgerstorfer for the respondent took three points on the "persistent offender" issue which is at the heart of this appeal. First, he submitted that, having regard to the wording of paragraph 398(c) of the Rules ("…in the view of the Secretary of State … [X] is a persistent offender who shows a particular disregard for the law"), it is necessary for the FTT and UT to attach "significant weight" to the respondent's view on the point. Secondly, he submitted that the FTT and UT were correct in finding that the appellant was indeed a persistent offender on the facts of this case, having regard to the true construction of the statutory provisions. Thirdly, it was argued that once a person had acquired the status of "persistent offender" it could not be lost by subsequent behaviour. Thus, on any footing, the appellant was, he submitted, a persistent offender by the time of her conviction and she could never thereafter cease to be so.
18. Mr Pilgerstorfer supported his first argument by citing this court's decision in LT (Kosovo) & anor. v SSHD [2016] EWCA Civ 1246. The question in the case was whether an offence of supplying a Class A drug fell to be treated as within the "serious harm" limb of paragraph 398(c) of the Rules. The Secretary of State had decided that the offences in those cases were offences which caused serious harm. It was submitted that substantial weight should be given to that view. Laws LJ (with whom Tomlinson and Lewison LJJ agreed) said (at paragraph 21):

"21. If it were suggested that the tribunals were bound by the Secretary of State's opinion as to serious harm I would disagree. Such a conclusion would nullify the right of appeal and reduce it to a residual Wednesbury review [1948] 1 KB 223, whereas it is elementary that the right of appeal to the FTT is on the merits (see now section 84 of the Nationality, Immigration & Asylum Act 2002, to which Mr Sedon took us this morning). That position is not shifted by the reference in paragraph 398(c) to the Secretary of State's view. That feature of the language of the rule cannot, in my judgment, deprive the appellants of their right to merits appeal. This approach is, I think, supported by Bah [2012] UKUT 00196 and again Rehman [2001] 1 AC 153. But that is not to say that the reference to the Secretary of State's view is of no significance. The Secretary of State is the primary decision-maker. She has a constitutional responsibility to make judgments as to the force of the public interest in deportation cases. That circumstance has to be balanced against the appellants' right to a merits appeal. In my judgment, that is to be done by requiring the tribunals in a paragraph 398(c) case, while considering all the facts put before them, to accord significant weight to the Secretary of State's view of "serious harm". They are not to be bound by it, but they are to treat [sic] is an important relevant factor. I should add that I cannot see that this approach is in any way undermined by the new provisions in section 117C and D of the Nationality, Immigration & Asylum Act 2002, to which Mr Sedon referred this morning."

19. The LT case was concerned solely with the application of paragraph 398 (c) of the Rules. With respect to the short obiter dictum in the last sentence of the passage just quoted, I do not agree. It seems to me to be quite clear that once the matter comes before a tribunal or a court, what has to be applied is s.117D(c) of the Act. The words of that provision are the words which Parliament has chosen to enact, without more. The three elements of that paragraph of the subsection are in clear terms and do not require any gloss to be put upon them by the reference to the Rules. The view of the Secretary of State or indeed of a judge in sentencing remarks may be of assistance to a tribunal or court in deciding whether an offence has caused serious harm or whether an offender is a persistent offender, but I do not see that the statutory words compel any particular weight to be given to the Secretary of State's view on either in the assessment. I would, therefore, reject Mr Pilgerstorfer's first submission.
20. As to the second and third arguments made by Mr Pilgerstorfer, it is necessary to consider the helpful decision of the Upper Tribunal (Andrews J and Upper Tribunal Judge Southern) in Chege v SSHD [2016] UKUT 00187 (IAC).
21. In Chege the appellant had been convicted of a series of offences in the period 1997 to 2013. The offences included driving while disqualified, handling stolen goods, failing to surrender to bail, possession of class A drugs, assault and public order offences. It was not argued on his behalf that the Secretary of State had not been entitled to reach the decision that Chege was a persistent offender at the time at which she had taken her decision. However, it was submitted that since he had committed no further offences since release from immigration detention in June 2013, he could no longer be regarded as such an offender at the time of the FTT decision in his case in July 2015. On the facts of the case, the appeal was dismissed. Chege, it was held, was properly to be regarded as a persistent offender.
22. On the route to that decision, the UT considered the wording of rule 398(c), both as to "serious harm" and "particular disregard for the law", but did not express any view on the weight to be attached to the Secretary of State's view as urged by Mr Pilgerstorfer in his first submission which I have rejected. They did, however, say this in paragraph 33 of the Decision:

"33. … However since, in order for s.117D(2)(c) to be engaged, the Secretary of State must already have formed the view that paragraph 398(c) of the Rules applies, the Tribunal would not be applying s.117C to anyone, however persistent their offending, that the Secretary of State has not already considered showed a particular disregard for the law in the sense explained above."

23. The UT did have to consider the nature of "persistent" offending and the argument, now advanced by Mr Pilgerstorfer, that the status of "persistent offender", once acquired, can never be lost.
24. The UT quoted (in paragraphs 37) two definitions of "persistent" in the Oxford English Dictionary:

"37. The two main definitions of "persistent" in the Oxford English Dictionary are "continuing firmly or obstinately in a course of action … especially against opposition" or "continuing to exist or occur over a prolonged period, enduring."

On the two points mentioned, encapsulated in Mr Pilgerstorfer's second and third submissions in the present case, the crux of the UT's conclusion was, as stated in paragraphs 50 to 54, in these terms:

"50. What, therefore, is the natural meaning of the phrase "persistent offender" in this specific statutory context? It can certainly be said, without unnecessarily straining the natural meaning of the word that an "offender" acquires that status by virtue of committing a crime, and having once offended he does not lose that status even if he never commits another crime. In other words, once an offender, always an offender. The fact that Parliament has deliberately legislated to remove the concept of spent convictions in this context also lends force to the view that "offender" means someone who has offended in the past however long ago that may have been.

51. However, Parliament did not use the phrase "repeat offender" or "serial offender". It used the phrase "persistent offender", and persistence, by its very nature, requires some continuation of the behaviour concerned, although it need not be continuous or even regular. There may be circumstances in which it would be inappropriate to describe someone with a past history of criminality as being a "persistent offender" even if there was a time when that description would have been an accurate one.

52. Take, for example, the case of an individual who in his youth had committed a series of offences between the ages of 14 and 17 which led to a string of minor convictions, but in adulthood had led a blameless existence for 20 years. Whilst it would be accurate to describe him as an offender, the natural response to the question whether he is now a persistent offender would be no. It would still be no if at the end of that long period of good behaviour he committed another minor criminal offence, even one involving proof of intention or recklessness. That is why, both logically and as a matter of the natural meaning of the language, Mr Malik's proposition that "persistent offender" is a permanent status cannot be correct.

53. Put simply, a "persistent offender" is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or up to a certain time before it, or that the continuity of the offending cannot be broken. Whilst we do not accept Mr Malik's primary submission that a "persistent offender" is a permanent status that can never be lost once it is acquired, we do accept his submission that an individual can be regarded as a "persistent offender" for the purpose of the Rules and the 2002 Act even though he may not have offended for some time. Someone can be fairly described as a person who keeps breaking the law even if he is not currently offending. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date. Each case will turn on its own facts.

54. Plainly, a persistent offender is not simply someone who offends more than once. There has to be repeat offending but that repetition, in and of itself, will not be enough to show persistence. There has to be a history of repeated criminal conduct carried out over a sufficiently long period to indicate that the person concerned is someone who keeps on re-offending. However, determining whether the offending is persistent is not just a mathematical exercise. How long a period and how many offences will be enough will depend very much on the facts of the particular case and the nature and circumstances of the offending. The criminal offences need not be the same, or even of the same character as each other. Persistence may be shown by the fact that a person keeps committing the same type of offence, but it may equally be shown by the fact that he has committed a wide variety of different offences over a period of time."

25. For my part, I entirely agree with those paragraphs of the decision in Chege. It is not necessary to quote from the subsequent paragraphs of the decision with which I agree in substance. What I have quoted above seems to me to be a sufficient statement of the construction of the phrase "persistent offender" as it appears in section 117D of the 2002 Act for the purposes of the present appeal.
26. I would, therefore, reject Mr Pilgerstorfer's submission that the status of "persistent offender" once acquired can never be lost and I would also reject his submission that s.117D(2)(c) requires a court or tribunal, in applying that provision, to attribute "significant weight" to the Secretary of State's anterior view that paragraph 398(c) of the Rules had been satisfied for the purposes of her own decision to make a deportation order in the first place. Otherwise, as it seems to me, the UT's decision in Chege was correct in its interpretation of the statutory provisions, with the result that the appeal in the present case should be dismissed.
27. It seems to me to be clear, for the reasons given by both Tribunals below, that the appellant in this case is a persistent offender. For avoidance of doubt, I do not consider that the fact that the appellant's persistent offending was dealt with in the course of one set of criminal proceedings affects that conclusion. She had committed repeated offending of a similar character over a six year period. Although dealt with for all that offending on a single occasion in the Crown Court, that did not prevent her being a "persistent offender" for the purposes of the Act.

Lord Justice Lindbolm:

28. I agree.

Lord Justice Leggatt:

29. I also agree.