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Cite as: [2015] EWCA Civ 1565

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Neutral Citation Number: [2015] EWCA Civ 1565
Case No: C5/2014/1686

(Appeal no: DA/01496/2013)

Royal Courts of Justice
London, WC2A 2LL
8 December 2015

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Ms Samina Iqbal (instructed by M & K Solicitors) appeared on behalf of the Appellant
Ms Samantha Broadfoot (instructed by the Treasury Solicitor) appeared on behalf of the Respondent



Crown Copyright ©

    Lord Justice Underhill:

  1. The appellant is a national of Sri Lanka, of Tamil ethnicity. He was born on 7 July 1973. He came to this country on 10 October 2000 and claimed asylum. His claim was refused, as was a subsequent appeal, and his appeal rights were exhausted with effect from 1 July 2003. Since then he has been an overstayer.
  2. On 26 January 2009 the appellant pleaded guilty to an offence under the Identity Cards Act 2006. He had been using a false Danish passport to establish a lawful identity here. He was sentenced to twelve months' imprisonment. He thereby came within the scope of the automatic deportation provisions of sections 32 and 33 of the UK Borders Act 2007. On 16 November 2010 a deportation order was made. He appealed against that decision unsuccessfully. His appeal rights in that regard were exhausted on 1 June 2011.
  3. For reasons which are unclear, the appellant was not deported following the failure of his appeal. On 29 May 2012 he applied for the deportation order to be revoked, relying on article 8 of the European Convention on Human Rights. He also some two months later applied for leave to remain on the basis of his long residence in the United Kingdom. On 6 June 2013 he married Ms Ranjini Yogaraja. She is also of Sri Lankan nationality and Tamil ethnicity. She came to this country in 2000 and has now acquired British nationality.
  4. By a decision letter dated 4 July 2013 the UK Borders Agency refused the application to revoke the deportation order. The appellant appealed to the First-tier Tribunal. The appeal was heard before a panel comprising First-tier Tribunal Judge Suchak and Mr GFSandall on 16 January 2014. His appeal was allowed, and the deportation order was revoked.
  5. The Secretary of State appealed to the Upper Tribunal. By a decision promulgated on 12 March 2014 Upper Tribunal Judge Kebede found that the First-tier Tribunal had made an error of law. He set aside its decision and remade the decision by dismissing the appellant's appeal.
  6. The appellant appeals to this court against that decision with the permission of Sir Stephen Sedley. Sir Stephen gave permission to challenge only the decision of the Upper Tribunal that the First-tier Tribunal had erred in law, on the basis that if it was in fact entitled to do so its remaking of the decision so as to dismiss the original appeal could not be impugned.
  7. The appellant has been represented before us by Ms Samira Iqbal of counsel, who has made the points that were available to him succinctly and with clarity. The Secretary of State has been represented by Ms Samantha Broadfoot of counsel, but in the event we have not had to hear from her.
  8. No point turns on the detail of the relevant statutory provisions (as opposed, that is, to the provisions of the Rules) and I need not set them out. The power to make a deportation order is conferred on the Secretary of State by section 3 of the Immigration Act 1971 and the power to revoke such an order by section 5. As already mentioned, section 32 requires the Secretary of State to make a deportation order where a foreign national is sentenced to a term of imprisonment of twelve months or more, subject only to the exceptions in section 33, which include a case where the removal of the person in question would breach his Convention rights.
  9. The relevant provisions of the Immigration Rules as they stood at the date of the First-tier Tribunal's decision can be summarised as follows:
  10. (1) The rules governing revocation of a deportation order are at paragraphs 390 to 392.

    (2) Paragraph 390 sets out certain principles applying to the exercise of the discretion whether to revoke an order, but they are very general in character and are for present purposes effectively superseded by the more specific provisions to which I turn.

    (3) Paragraph 390A reads as follows:

    "Where paragraph 398 applies the Secretary of State will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors."

    (4) Paragraphs 398 to 399A, form part of a section of the Rules headed "Deportation and Article 8". Paragraph 398 reads (so far as material):

    "Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
    (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 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 "

    (5) It is in fact common ground that neither paragraph 399 nor paragraph 399A applies in the present case, but for reasons which will appear I should refer to paragraph 399. That has two limbs, (a) and (b). Limb (a) applies, or may apply, if the applicant has a child in the UK and it is accordingly not relevant here. Limb (b) applies where:

    " the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and
    (i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and
    (ii) there are insurmountable obstacles to family life with that partner continuing outside the UK."

    (6) Paragraph 396 reads:

    "Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007."

  11. As I have said, it is common ground that this case does not fall within paragraphs 399 or 399A and that in consequence, in accordance with paragraph 390A, "it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors".
  12. Authoritative guidance as to the meaning of the substantially identical provisions in paragraph 398 was given by this court in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] I WLR 544. That guidance can be sufficiently summarised for present purposes as follows. The case law of the European Court of Human Rights recognises that, in conducting the proportionality assessment required by Article 8 of the Convention in a case where a person is to be removed, there is a strong public interest in deporting foreign criminals, which will only be outweighed by "very compelling reasons", such that cases where such reasons are present will be exceptional; and that the reference to "exceptional circumstances" in paragraph 398 should be interpreted as incorporating that approach.
  13. Against that background, I turn to the decision of the First-tier Tribunal. Paragraphs 1 to 31 of the determination set out various introductory matters and summarise the evidence. Paragraphs 32 to 34 set out the parties' submissions. Paragraphs 37 to 43 set out various further facts and matters. The Tribunal's dispositive reasoning and conclusion appear at paragraphs 45 to 56, which read as follows:
  14. "45. We have considered the relevant Immigration Rules and we note that the starting point for consideration is paragraph 396 of the Immigration Rules which states that where a person is liable to deportation the presumption is that public interest requires deportation and it is in the public interest to deport the appellant where the respondent must make a deportation order in accordance with Section 32 of the UK Borders Act.
    46. We have considered paragraph 398 of the Immigration Rules which provides that where a person claims that his deportation would be contrary to the UK's obligations under Article 8 of the ECHR and the deportation is conducive to the public good because the appellant has been convicted for an offence of less than four years but at least twelve months the respondent assessing the claim has to consider whether paragraph 399 or 399A apply and if they do not it will only be in exceptional circumstances that a public interest in deportation will be outweighed by other factors.
    47. We consider the provisions of paragraph 399(b) of the Immigration Rules. We are satisfied that there is a genuine and subsisting relationship between the appellant and his wife. However, the respondent considered that there were no insurmountable obstacles to the appellant's family life with his wife continuing in Sri Lanka.
    48. We heard evidence from the appellant and his wife and also two witnesses. We also have regard to the other witness statement and letters of support for the appellant. The appellant and his wife both stated that she was aware of the appellant's immigration status although she was not initially aware that he was involved in improperly obtaining false documents.
    49. We should state that we have no reason to doubt the evidence of the appellant and his wife that firstly they have a genuine relationship and that secondly there would be considerable insurmountable obstacles to the appellant's family life with his wife continuing in Sri Lanka.
    50. Our attention was drawn to the previous determination relating to the appellant's deportation appeal promulgated 23 February 2011. The Tribunal in that appeal noted that the appellant claimed that he only had contact with his mother once in 2008. The Tribunal found this surprising. We were asked by Ms Laverack that the determination of the Tribunal in this connection should be the starting point especially in relation to the appellant's credibility. However we are mindful that since 2008 considerable time has elapsed and there have been far-reaching changes in Sri Lanka following the end of the civil war and defeat of the LTTE and we have no hesitation whatsoever in accepting the appellant's evidence that he was telling the truth that he has not had any contact with his family in Sri Lanka since 2008.
    51. We consider the evidence the appellant's wife. We note that she has been here since 2000. She is working full-time and has her own property. She does not have any family in Sri Lanka. She feared life in Sri Lanka particularly as she believed that her husband would be arrested and/or detained particularly as a lone female without any family support. We are mindful that when she married the appellant she was aware of his immigration status in the UK. However we also have to take into account that parties do marry notwithstanding that one party is aware of the other party's precarious status in the UK. We note that the appellant's wife is a British citizen. We also consider that the appellant's conviction of twelve months' imprisonment was at the lower end of the scale and that he pleaded guilty at the earliest opportunity and this was a matter that was considered in his favour at his criminal trial.
    52. We take into consideration the basic principles on the public interest side of the balancing exercise as set out in paragraph 11 of Masih as follows:
    "(a) In a case of automatic deportation, full account must be taken of the strong public interest in removing foreign citizens convicted of serious offences, which lies not only in the prevention of further offences on the part of the individual concerned, but in deterring others from committing them in the first place;
    (b) Deportation of foreign criminals expresses society's condemnation of serious criminal activity and promotes public confidence in the treatment of foreign citizens who have committed them;
    (c) The starting-point for assessing the facts of the offence of which an individual has been committed, and their effect on others, and on the public as a whole, must be the view taken by the sentencing judge;
    (d) The appeal has to be dealt with on the basis of the situation at the date of the hearing;
    (e) Full account should also be taken of any developments since sentence was passed, for example the result of any disciplinary adjudications in prison or detention, or any OASys or lience report;
    (f) In considering the relevant facts on 'private and family life' under article 8 of the European Convention on Human Rights, 'for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in [this] country, very serious reasons are required to justify expulsion';

    (g) Such serious reasons are needed 'all the more so where the person concerned committed the relevant offences as a juvenile'; but 'very serious violent offences can justify expulsion even if they were committed by a minor'. Other very serious offending may also have this consequence."

    53. We are aware that full account must be taken of the strong public interest in removing foreign nationals convicted of criminal offences. We also have to take into account the developments since the sentence was passed on Monday 26 January 2009. We note that the appellant has not reoffended since 2008 and there is nothing to suggest that he will reoffend. There is also the matter of the right of the appellant's wife who is a British citizen and whilst we appreciate that she has not spent the majority of her life in this country we find that she is well-established in this country and has no family in Sri Lanka.
    54. We consider the appellant's claim under Article 8 in the light of what we have stated above. We are aware that the appellant cannot satisfy the current Immigration Rules. However bearing in mind the two stage approach that we are required to follow we have regard to the five stage approach in Razgar [2004] UKHL 27. We find on the evidence before us that there is existing family life between the appellant and his wife and that the appellant's removal would be an interference of his family life. It was not argued before us that the interference is not in pursuance of a legitimate aim or not in accordance with the law and the question as in all cases is whether the interference is proportionate.
    55. In considering the matter of proportionality we have regard to Huang [2007] UKHL. We have regard to House of Lords cases Chikwamba [2008] UKHL 40 and Beoku-Betts [2008] UKHL 39 and we find that in the circumstances of this case and on the evidence before us removal of the appellant would be entirely disproportionate.
    56. We have given careful consideration to the totality of the evidence before us. We find that the appellant has discharged the onus upon him that his removal would breach Article 8 of the ECHR in relation to his family life and it therefore follows that his appeal must be allowed."

  15. In my view the reasoning in those paragraphs is materially flawed and the Upper Tribunal was right to set the conclusion aside.
  16. I start with paragraph 47, where the Tribunal refers to paragraph 399(b) and to whether there were insurmountable obstacles to the relationship between the appellant and his wife continuing if he was removed to Sri Lanka. It says at paragraph 49 that it had "no reason to doubt the evidence of the appellant and his wife that there would be considerable insurmountable obstacles" to the continuation of family life in Sri Lanka. That is rather oddly worded, but it appears to be intended as a finding that limb (b) (ii) was satisfied. However, even if that finding was open to the Tribunal, it leads nowhere and it is unclear why the Tribunal regarded it as an important issue. Paragraph 399 (b) only applies if the appellant can satisfy both elements i.e. (i) and (ii); and it is common ground, and must at all stages have been apparent, that the appellant could not in this case satisfy element (i) because he had not been present in the United Kingdom for the requisite period of 15 years. It follows that if the Tribunal proceeded on the basis that the appellant's claim succeeded on the basis that it was caught by paragraph 399, it was wrong to do so.
  17. Ms Iqbal contended that the Tribunal's discussion of the obstacles to relocation was not (or in any event was not solely) directed to paragraph 399 but was intended to feed into its consideration of whether there were exceptional circumstances within the meaning of paragraph 390A. It is hard to read the determination in that way since the relevant passage starts with an express reference to paragraph 399(b). I fear that the Tribunal was simply confused. It is, I have to say, a problem about the reasoning as a whole that there is no clear structure indicating what points are being considered at what stage.
  18. In any event, if her Ms Iqbal's explanation were accepted, I do not believe that the Tribunal gives any sufficient reasons for a finding that there would be insurmountable obstacles to the appellant and his wife continuing their married life in Sri Lanka. It seems (though it is not in fact entirely clear) that in so far as there is any reasoning in support of such a conclusion it is to be found in paragraph 50 and the first part of paragraph 51. Paragraph 50 goes no further than a finding that the appellant had had not contact with his family in Sri Lanka since 2008. The first part of paragraph 51 is directed to the position of the appellant's wife. The Tribunal notes that she had been in the United Kingdom since 2000, where she has had a job and owns a property, (presumably her home); that she has no relatives in Sri Lanka; and that she has a fear that if the applicant were arrested in Sri Lanka she would have no family or support system to turn to. That last factor seems to me to go nowhere unless the Tribunal had found that there was a real risk that the appellant might face arrest in Sri Lanka, there is no such finding and of course his previous asylum appeal had been dismissed.
  19. The remaining factors do not by themselves come close to demonstrating the presence of insurmountable obstacles to them returning to Sri Lanka. It would of course be very disruptive; but that is not the same thing as saying that the obstacles would be "insurmountable", which imposes a high test (see the recent decision of this court in Agyarko [2015] EWCA Civ 440). Both had of course spent the first part of their adult lives in Sri Lanka. The Tribunal makes no attempt to demonstrate, for example, that either would be unable to find work there or would experience some other specific difficulties as a result of having to relocate.
  20. Ms Iqbal invites us, despite such flaws as we might find in the case based on insurmountable obstacles, to treat this as in truth a case where in the remaining paragraphs of the determination the Tribunal undertook a proportionality assessment of the required kind, taking into account all the relevant circumstances; and she submits that even if not every tribunal might have come to the same conclusion no error of law in the Tribunal's approach or conclusion can be demonstrated. She draws our attention to the fact that the Tribunal does refer at paragraph 45 to paragraph 396 of the Immigration Rules, which enunciate the presumption in favour of deportation, and at paragraph 46 to the closing words of paragraph 398 (this should strictly be paragraph 390A but nothing turns on that) which expressly refer to the need for exceptional circumstances outweighing the public interest in deportation. She points to the circumstances identified in various parts of the reasoning which, on the one hand, lessen the weight of the relevant public interest in particular, the fact that the appellant's offence was at the bottom of the relevant scale of seriousness and that there was no risk of reoffending and, on the other, which increased the impact on the article 8 rights of the appellant and his wife in particular the length of time that they had been here and the difficulties, even if not to be characterised as insurmountable, about their relocating to Sri Lanka.
  21. I am very doubtful whether the Tribunal's mistaken reference to paragraph 399 can simply be ignored in that way; but even if it is put to one side I am afraid that I must regard the proportionality assessment as seriously flawed even in its own terms. The essential point is that the Tribunal makes no reference to the guidance in MF (Nigeria) which ought to have been its starting point. It appears that it had been referred to that authority, because it is mentioned earlier in the determination in a list of authorities cited; but it forms no part whatever of the reasoning. Instead the Tribunal directs itself by reference to the decision of the Upper Tribunal in Secretary of State for the Home Department v Masih [2012] UKUT 46 (IAC), which predates not only MF but also the relevant version of paragraphs 398 to 399A. There is thus no reference in the determination to the need for a potential deportee to show "very compelling reasons" to outweigh the public interest in deportation. Nor, I may add, did the Tribunal refer to the decision of this court in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550, [2014] 1 WLR 998, in which Laws LJ emphasised the weight that needs to be given to the fact that the policy reflected in the Rules represents a judgment endorsed by Parliament in the automatic deportation provisions in the 2007 Act. The failure to refer to SS may be principally the fault of the representatives, who do not appear to have drawn the Tribunal's attention to it, but the fact remains that it was a further important authority to which it made no reference.
  22. That seems to me to be enough to undermine the assessment by the First-tier Tribunal: it is a case where the Tribunal failed to direct itself correctly as to the applicable principles. But I am prepared to say also that, even apart from that point, I find it hard to see how the matters relied on by Ms Iqbal would be capable of constituting "very compelling" reasons which could the proportionality balance in the appellant's favour. I would draw attention in particular to the fact that he and his wife married in the full knowledge that his immigration status was precarious. It could indeed hardly have been more so since he was the subject of a current deportation order. The Tribunal's observation at paragraph 51 that "parties do marry notwithstanding that one party is aware of the other party's precarious status" seems to me (with all respect to the Tribunal) to afford completely inadequate weight to a factor which it is clear from the authorities is of fundamental importance; see in particular the decision of Sales J in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin).
  23. I would add finally that the First-tier Tribunal was wrong to describe its decision as being taken outside the Rules. It follows from the reasoning in MF (Nigeria), and is indeed explicit in the judgment, that where the Article 8 balance comes down in an appellant's favour because he can demonstrate reasons of a sufficiently compelling nature the resulting decision is made within the Rules, because it falls within the terms of paragraph 398 or in a revocation case paragraph 390A. This error is not important in itself but it confirms that the Tribunal had not properly understood the effect of the relevant law.
  24. Since, as I have said, the appellant has no permission to challenge the decision of the Upper Tribunal if it is held to have been entitled to overturn the decision of the First-tier Tribunal, it follows that this appeal must be dismissed.
  25. Lord Justice Tomlinson:

  26. I agree.
  27. Lord Justice Longmore:

  28. I also agree.
  29. Order: Appeal dismissed

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