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Cite as: [2018] EWCA Civ 790

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Neutral Citation Number: [2018] EWCA Civ 790
Case No: C5/2015/4016

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

Royal Courts of Justice
Strand, London, WC2A 2LL
17/04/2018

B e f o r e :

LORD JUSTICE UNDERHILL
and
LORD JUSTICE SINGH

____________________

Between:
Secretary of State for the Home Department
Appellant
- and -

Thierno Barry
Respondent

____________________

Ms Carine Patry (instructed by the Government Legal Department) for the Appellant
Mr Manjit S. Gill QC and Ms Frances Shaw (instructed by Thompson & Co) for the Respondent

Hearing date: 22 March 2018

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    Lord Justice Singh :

    Introduction

  1. This is a second appeal by the Secretary of State for the Home Department from the decision of the Upper Tribunal (Immigration and Asylum Chamber) ("UT") dated 23 September 2015, which was itself an appeal by the Secretary of State from the decision of the First-tier Tribunal ("FTT") dated 9 June 2014. Longmore LJ granted permission to appeal to this Court on 18 July 2016.
  2. There was an earlier hearing of the appeal against the FTT decision. The UT (King J and UTJ Martin) heard the appeal on 8 October 2014 and dismissed it orally, but never promulgated the written reasons. That led to the appeal having to be re-heard by the UT.
  3. The appeal to the UT came before McCloskey J (the then President of the Immigration and Asylum Chamber) and UTJ Reeds on 15 September 2015 and was dismissed on 23rd September 2015.
  4. I note that, in the Appellant's Notice, at Section 5, the Appellant has wrongly identified the UT's decision to refuse permission to appeal to this Court as the subject of this appeal. However, it is clear to all concerned that what is under appeal is in fact the substantive dismissal of the Secretary of State's appeal to the UT.
  5. Background

  6. The Respondent is a national of Guinea and was born on 1 October 1983. He entered the UK on 22 March 2004 with leave as a student. He was granted further periods of leave to remain, again as a student, until 30 November 2009.
  7. The Respondent has been in a relationship with a British citizen since 2007 and they married on 22 March 2009. They have two sons together, who were born on 9 November 2009 (known in these proceedings as O) and 13 January 2012 (known as M). Both children are British citizens.
  8. On 7 July 2009 the Respondent assaulted someone with a Stanley knife. He pleaded guilty to unlawful wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861. On 11 January 2010 he was sentenced by HHJ Richardson to three years imprisonment. He was released from custody in early 2011.
  9. On 4 June 2013, the Secretary of State decided to deport the Respondent under the automatic deportation provisions of section 32(5) of the UK Borders Act 2007, for the reasons set out in a decision letter of that date; and on the same date made a deportation order against the Respondent. The Respondent appealed to the FTT, which allowed his appeal. The Secretary of State's appeal to the UT was dismissed.
  10. Material Legislation

  11. Section 32 of the UK Borders Act 2007 applies to the present case because the Respondent is a "foreign criminal" within the meaning of subsection (1). This is because (a) he is not a British citizen; (b) he was convicted in the UK of an offence and (c) "Condition 1" applies, since he was sentenced to a period of imprisonment of at least 12 months: see subsection (2).
  12. Subsection (5) provides that in such circumstances the Secretary of State must make a deportation order but this is subject to section 33.
  13. Section 33(1) provides that, so far as material, section 32(5) does not apply where an exception applies. The relevant exception is Exception 1, where removal of the foreign criminal in pursuance of the deportation order would breach a person's Convention rights: see subsection (2)(a). The Convention rights are as set out in the Human Rights Act 1998.
  14. At the material time the provisions of section 19 of the Immigration Act 2014 did not apply. Section 19 amended the Nationality, Immigration and Asylum Act 2002 so as to insert Part 5A into that Act: in particular section 117C, which sets out additional considerations in cases involving foreign criminals.
  15. Relevant Immigration Rules

  16. It is not the version of the Immigration Rules (HC 395) which came into force in 2014 which is relevant on the facts of the present case. Rather it is the version as amended in 2012.
  17. Para. 398 of the Rules provided:
  18. "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 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 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 is conducive to the public good 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 the claim 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 deportation will be outweighed by other factors."
  19. Para. 399 applied to the present case. Para. 399A did not. Para. 399 provided:
  20. "This paragraph applies where paragraph 398(b) or (c) applies if
    (a) the person has a genuine or subsisting parental relationship with a child under the age of 18 years who is in the UK and,
    (i) the child is a British citizen; or
    (ii) the child has lived in the UK continuously for at least the last 7 years immediately preceding the date of the immigration decision; and in either case
    (a) it would not be reasonable to expect the child to leave the UK; and
    (b) there is no other family member who is able to care for the child in the UK; or
    (b) 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 status 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."

  21. In the present case para. 399(a) did not apply because the Respondent's wife could remain in the UK to look after the children; and para. 399(b) did not apply because the Respondent had not lived in the UK with valid leave for at least 15 years. Para. 398 has been amended since the relevant time. However, Ms Patry on behalf of the Secretary of State relies on the language of the amended version because she submits that it stated what had already been the effect of the previous version. As amended, para. 398 ends:
  22. " 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."

    The approach to be taken in cases of this kind

  23. The approach to be taken in cases of this kind was authoritatively set out by the Supreme Court in a decision which came after the determinations of the FTT and the UT in the present case: Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799.
  24. I had occasion recently to set out the relevant passages in the judgment of the Supreme Court in Hesham Ali in the decision of this Court in Secretary of State for the Home Department v Kirtis Millar [2018] EWCA Civ 28, at paras. 45-48:
  25. "45. Before concluding I should remind the UT of the correct approach to be taken in cases of this kind, as authoritatively set out by Lord Reed JSC in Hesham Ali. At para. 46 he said:
    ' The special feature in [this] context is that the decision under review has involved the application of rules which have been made by the Secretary of State in the exercise of a responsibility entrusted to her by Parliament, and which Parliament has approved. It is the duty of Appellate Tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. But, where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, they should attach considerable weight to that assessment: in particular, that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender's deportation almost always outweighs countervailing considerations of private or family life; that great weight should generally be given to the public interest in the deportation of a foreign offender who has received a custodial sentence of more than 12 months [that applies to the present case]; and that, where the circumstances do not fall within paragraphs 399 or 399A, the public interest in the deportation of such offenders can generally be outweighed only by countervailing factors which are very compelling '
    46. Further, at para. 50 Lord Reed summarised the position as follows:
    ' In summary, therefore, the tribunal carries out its task on the basis of the facts as it finds them to be on the evidence before it, and the law as established by statute and case law. Ultimately, it has to decide whether deportation is proportionate in the particular case before it, balancing the strength of public interest in the deportation of the offender against the impact on private and family life. In doing so, it should give appropriate weight to Parliament's and the Secretary of State's assessments of the strength of the general public interest in the deportation of foreign offenders and also consider all factors relevant to the specific case in question. The critical issue for the tribunal will generally be whether, giving due weight to the strength of the public interest in the deportation of the offender in the case before it, the Article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed very compelling as it was put in the MF (Nigeria) case will succeed.'
    47. It should also be noted that at paras. 51-53 Lord Reed clarified one point which had been made by this Court in the MF (Nigeria) case, at para. 44, where this Court had said that the Immigration Rules were 'a complete code' for Article 8 cases. Lord Reed said that the idea that the new Rules comprise a complete code appears to have been mistakenly interpreted in some later cases as meaning that the Rules, and the Rules alone, govern appellate decision-making. He explained that the Rules are not law for relevant purposes and therefore do not govern the determination of appeals. However, he continued, at para. 53:
    ' The policies adopted by the Secretary of State, and given effect by the Rules, are nevertheless a relevant and important consideration for tribunals determining appeals brought on Convention grounds, because they reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. In particular, tribunals should accord respect to the Secretary of State's assessment of the strength of the general public interest in the deportation of foreign offenders, and also consider all factors relevant to the specific case before them It remains for them to judge whether, on the facts as they have found them, and giving due weight to the strength of the public interest in the case before them, the factors brought into account on the other side lead to the conclusion that deportation would be disproportionate.'
    48. Finally in this context, I would observe that the UT may find it helpful to set out a "balance sheet" of "pros" and "cons", as recommended by Lord Thomas of Cwmgiedd CJ in the Supreme Court in Hesham Ali at paras. 82-84, where he said that:
    'Experience in extradition cases has shown that the use of the balance sheet approach has greatly assisted in the clarity of the decisions at first instance and the work of appellate courts.'
    See also the decision of this Court in Secretary of State for the Home Department v Quarey [2017] EWCA Civ 47, at para. 32, where Irwin LJ said that the approach recommended by Lord Thomas 'serves as a discipline on decision-making ensuring that the balancing exercise is properly conducted and is transparent to the reader.'"

    The FTT Determination

  26. The FTT comprised FTT Judge Norton-Taylor, sitting with a non-legal member, Mr C P O'Brian.
  27. The reasons set out by the FTT in its determination are lengthy and, in my view, careful and thorough.
  28. The Appellant made significant concessions before the FTT regarding the relationships between the Respondent and his wife and children (para. 55). She accepted that removal of the father was not in the children's best interests (para. 57) and that they could not be expected to accompany their father to Guinea (para. 87).
  29. On that basis, the FTT directed itself that the core issue was whether there were "exceptional circumstances" which would render the Respondent's deportation a disproportionate interference with Article 8 rights, because this is the position taken by the Appellant in the Immigration Rules (paras. 63 and 64).
  30. Most of the facts were accepted by the Appellant. The FTT found that neither parent had other relatives in the UK (para. 76), that the Respondent had performed a significant role in the children's upbringing (para. 79) and that they formed a strong family unit (para. 86). The FTT also found that there were insurmountable obstacles to the Respondent's wife relocating to Guinea, because that would leave the children without a primary carer (para. 89).
  31. The FTT found that the index offence committed by the Respondent was less serious than it might have been because of the presence of significant mitigating factors (para. 115) and that the risk of further harm to the public was low (para. 116).
  32. The FTT directed itself that the Respondent would have to identify "very compelling reasons" against deportation following the decision of this Court in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544 and that, in cases of automatic deportation like this one, a "very strong claim indeed" would be required before removal would breach Article 8: SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; [2014] 1 WLR 998 (Laws LJ).
  33. The FTT set out factors in favour of and against the Respondent. It noted the statutory public interest in deportation, as well as the public interest in deportation to express revulsion and deter other foreign nationals from committing crimes (paras. 156-159).
  34. However, the FTT concluded that there were exceptional circumstances in this case which outweighed the public interest in deportation (para. 165). It also emphasised that this was a "very strong" Article 8 claim and that it was a "rare case" (para. 168).
  35. The UT Determination

  36. The Secretary of State appealed to the UT on the ground that the FTT had placed insufficient weight on the seriousness of the offence when weighing up whether there were exceptional circumstances outweighing the public interest in deportation (para. 5). Before the UT she did not argue that the FTT had misdirected itself (para. 6). She acknowledged that she could only succeed if the UT ruled that the balancing exercise conducted by the FTT was irrational (para. 6).
  37. The UT dismissed the Secretary of State's appeal.
  38. Permission to appeal to this Court

  39. Longmore LJ granted permission to appeal to this Court on the basis of para. 28 of the Appellant's skeleton argument for permission to appeal, which argued that there may be a "systemic failure" by the UT when applying paras. 398 and 399 of the Immigration Rules, as demonstrated by the UT declining to find an error of law in a case in which the FTT had relied on irrelevant considerations. Longmore LJ was persuaded by the strong terms in which the Secretary of State's skeleton argument and grounds of appeal (at para. 6) were expressed that this was a compelling circumstance such as to warrant the grant of permission to appeal. He did not comment on the prospects of success.
  40. It is troubling that, having obtained permission to appeal to this Court (and, in particular, having done so in a case in which the stricter criteria for a second appeal needed to be satisfied), the Secretary of State did not in fact pursue the argument that there is a systemic failure by the UT in determining cases such as the present one. In truth the appeal before this Court was advanced on the basis of the particular facts of this case and raises no issue of general importance.
  41. The Appellant's Grounds of Appeal

  42. On behalf of the Secretary of State Ms Carine Patry advances three grounds of appeal.
  43. Ground 1 is that the FTT erred in law by allowing the appeal under para. 398 of the Immigration Rules despite the fact that it had failed under paras. 399 and 399A. It is submitted that the "exceptional circumstances" in para. 398 require something "over and above" the circumstances identified in paras. 399 and 399A. It is further submitted that the amendment to para. 398 in 2014 merely serves to make this clear but does not effect a change of substance.
  44. Ground 2 is that the FTT erred in law in how it assessed the evidence of "very compelling reasons" against deportation. First, it is submitted, the FTT should have begun with the public interest in deportation as a starting point. Secondly, the FTT should not have taken account of the mitigating circumstances of the offence and the Respondent's remorse, so as to reduce the public interest in deportation. Thirdly, the FTT was wrong to find that the family life had been partly established before the Respondent's immigration status became precarious.
  45. Ground 3 is that the FTT's conclusion in this case was irrational.
  46. The Respondent's Submissions

  47. On behalf of the Respondent Mr Manjit Gill QC makes the following submissions.
  48. Ground 1: The "exceptional circumstances" exception in para. 398 is essential to ensure that the Rules are compatible with the Convention rights because it allows a proportionality exercise to be carried out. Paras. 399 and 399A do not embody a proportionality exercise. No one factor has "primacy", as the Secretary of State contends, when assessing Article 8, although both the Secretary of State and legislation has accorded a great weight to the public interest in deportation. Mr Gill submits that the amendment to the Rules in 2014 was made after MF (Nigeria) precisely because the courts had not accepted the Appellant's interpretation of para. 398.
  49. Ground 2: Mr Gill submits, first, that to criticise the FTT for not starting with the public interest in deportation would be to allow form to triumph over substance, since (as a matter of substance) the FTT did weigh up everything it was required to in conducting a balancing exercise. He also points out that in Hesham Ali Lord Thomas CJ recommended an approach whereby the FTT should set out a "balance sheet" of factors weighing in favour and factors weighing against deportation, by way of analogy to the approach which the courts have found helpful in the extradition context. It could therefore be said that the FTT in the present case was prescient in that regard. It certainly cannot be a ground for criticism of its approach. Mr Gill also submits that no single factor has "primacy" when making Article 8 decisions following Hesham Ali.
  50. Secondly, Mr Gill submits that mitigating circumstances regarding the offence are not an irrelevant factor. In some ways the FTT was more favourable to the Secretary of State than necessary, for instance, it considered public revulsion to be a relevant factor.
  51. Thirdly, Mr Gill submits that, if anything, when considering precariousness, the FTT was too favourable to the Appellant but that, in any event, its approach was not erroneous in law.
  52. Ground 3: Mr Gill submits that the conclusion reached by the FTT in this case was not irrational and the UT was right to dismiss the Secretary of State's appeal.
  53. Analysis

    Ground 1

  54. Ground 1 of the Secretary of State's appeal was formulated in the following way in writing:
  55. "The FTT concluded that on the facts of this appeal, and applying Rule 398 of the Immigration Rules (in their old form), there existed 'exceptional circumstances' which outweighed the public interest in deportation. It is plain that the 'exceptional circumstances' relied upon were not even compelling enough to meet the lower threshold set out in Rules 399(a) and 399(b) of the Immigration Rules and thus the Tribunal approached the test on the wrong basis. This was an error of law and not simply a disagreement with the ultimate conclusion of the FTT: see AJ (Angola) [2014] EWCA Civ 1636. The UT failed to address this."

  56. In the skeleton argument filed on behalf of the Secretary of State for this appeal hearing, it was submitted that the amendment to para. 398 makes it clear that "exceptional circumstances" means more exceptional than the circumstances described in paras. 399 and 399A:
  57. "Very compelling circumstances over and above ".

    However, Ms Patry submits that this was abundantly clear even prior to the change in the wording. For that proposition she relies on the decisions of this Court in YP (Sri Lanka) v Secretary of State for the Home Department [2015] EWCA Civ 1565 and AJ (Angola) v Secretary of State for the Home Department [2014] EWCA Civ 1636. She submits that this Court has held that claims by appellants who are foreign criminals for leave to remain based on their Convention rights must be considered under Rules and "through their lens": for that proposition she relies on the decision of this Court in AJ (Angola) at para. 40.

  58. Ms Patry submits that the FTT determination simply failed to address this, which she submits is in itself an error of law. She continues, in her skeleton argument at para. 19:
  59. " Further it is plainly a material error of law, as on a reading of the factual circumstances relied on at the appeal, it is difficult to see on what basis it could be said that the circumstances were compelling or exceptional over and above the circumstances described in para 399."

  60. In support of that submission Ms Patry relies on what was said by Lord Kerr JSC at para. 145 in his dissenting judgment in Hesham Ali:
  61. "The threshold imposes two requirements. In addition to demonstrating 'exceptional circumstances', the factors which such persons can call upon to substantiate their Article 8 claim are factors 'other' than those in paragraphs 399/399A. A similar two-fold threshold applies in the 2014 Rules: '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'. "

  62. On behalf of the Respondent Mr Gill submits that that passage was (1) obiter (2) appeared in a dissenting judgment and (3) is wrong. Mr Gill submits that the correct construction of para. 398 as it was at the relevant time in this case is simply that the phrase "other factors" means the factors other than the public interest in deportation of the offender.
  63. In my respectful view, the above comment by Lord Kerr is indeed obiter and is inconsistent with the plain meaning of para. 398 as it was before it was amended in 2014. That is not how the majority in the Supreme Court construed that paragraph. It also seems to me that it would have been unnecessary for the Secretary of State to amend para. 398 if it always had the effect which she contends it did.
  64. Further, and in any event, the point of construction does not assist the Secretary of State in her submissions on this point. This Court has authoritatively held that, even after the amendments in 2014, the Rules do not either expressly or impliedly "ringfence" the para. 399/399A factors. Indeed, this Court has said that it would be "bizarre if the Secretary of State were required to ignore such matters altogether when considering whether there were 'exceptional circumstances'": see Secretary of State for the Home Department v JZ (Zambia) [2016] EWCA Civ 116, at para. 29; and NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, at paras. 19-21. Indeed I would note that in that case the Secretary of State was originally minded to argue that the approach taken by this Court in JZ (Zambia) was wrong in relation to the code in the 2012 Rules and also wrong in relation to the new regime in sections 117A to 117D in the 2002 Act (as inserted by the 2014 Act) and in the 2014 Rules but that argument was specifically abandoned by leading counsel who appeared for the Secretary of State: see para. 21 in the judgment of Jackson LJ.
  65. Once the point of construction is decided against the Secretary of State, and I would note that Ms Patry accepted the construction given to para. 398 of the Rules by this Court in the cases to which I have referred, then it seems to me that Ground 1 simply amounts to a disagreement by the Secretary of State with the merits of the determination by the FTT. There was no error of law in the FTT's approach, as alleged by the Secretary of State. At most what the Secretary of State would be entitled to argue is that the determination was irrational or perverse. However, that is not the subject of Ground 1; it is the subject of Ground 3, to which I will return later.
  66. Ground 2

  67. As I have outlined earlier, under Ground 2 Ms Patry makes three submissions.
  68. First, she submits that the FTT erred in its approach to the consideration of "exceptional circumstances" because it failed to have as its "starting point" the "primacy" of the public policy of removing foreign criminals. In that context she relies on the judgment of this Court in MM (Jamaica) v Secretary of State for the Home Department [2015] EWCA Civ 1239, at para. 39, where it was said that the FTT in that case had erred because it had
  69. " started its consideration at the wrong end. It started with a consideration of the respondent's 'strong family life' and the effect on his partner and in particular on the wellbeing of his children of him being deported. The FTT should have started with the primacy of the statutorily expressed public policy of removing foreign criminals, as stated in the 2007 Act."

  70. In the present case, Ms Patry complains that, at paras. 143-155 of its determination, the FTT considered first all the factors in the present Respondent's favour and only then went on to balance the factors in the present Appellant's favour. She submits that this is not a semantic point about the way in which the determination was structured.
  71. I do not accept this criticism of the FTT. I note that nowhere in the judgments of the Supreme Court in Hesham Ali is there any reference to the suggested "primacy" of any factor. To the contrary, there is reference to the need for a balancing exercise to be conducted, which of course will take into account on one side of the balance the strong public interest in deportation of foreign criminals. Indeed, as I have already observed, the judgment of Lord Thomas CJ makes it clear that a "balance sheet" approach may be helpful in this context as it is in the context of extradition.
  72. In my view, there is nothing inconsistent between the decision of this Court in MM (Jamaica) and the approach of the Supreme Court in Hesham Ali but, even if there were, this Court is bound by the decision of the Supreme Court.
  73. Furthermore, on the facts of the present case, it is clear, in my view, that the FTT was well aware of the strong public interest in deportation of the Respondent. That is a matter to which it made constant reference in its determination.
  74. Ms Patry's second submission under Ground 2 is that the FTT adopted an impermissible approach and/or gave weight to immaterial factors, namely the mitigation which it considered to be available to the Respondent and his expressions of remorse: see in particular paras. 102-122 of its determination; and the conclusions at paras. 154-155. Ms Patry submits that this involved an element of "double counting", since the mitigating factors had already been taken into account by the sentencing judge in arriving at the appropriate sentence for this case.
  75. I do not regard the approach of the FTT in this regard to have been impermissible as a matter of law. I do not agree that questions of mitigation are totally irrelevant to the balancing exercise which the FTT had to perform. Ms Patry is right to say that questions of mitigation will already have played their part in arriving at the appropriate sentence for the underlying offence. However, it must be borne in mind that the three categories which are set out in the Immigration Rules are broad categories. In particular, the most serious category applies to any offender who has been sentenced to a sentence of imprisonment of at least 4 years. However, that can cover a wide range of cases. Although they are all serious, they can vary in degrees of seriousness. The criminal courts in this country come across some examples of the most heinous kind, which would be towards the top end of the range envisaged by Category 1. However, in an appropriate case, I can see no reason in principle why either aggravating factors or mitigating factors might not be taken into account by the FTT in assessing the seriousness of the offence in question and, accordingly, the strength of the public interest in deportation. Similarly, in a case such as the present, which falls into the intermediate category of seriousness, because the sentence passed was between 12 months and 4 years imprisonment, I can see no reason in principle why aggravating or mitigating factors may not be taken into account by the FTT.
  76. Ms Patry's third submission under Ground 2 relates to the concept of "precariousness". She complains in particular about paras. 151-152 of the FTT's determination:
  77. "151. the family unit was not entirely established at a time when the Appellant's position in this country was precarious to the extent that he was without leave or had a deportation order against him (the latter only having been made in June 2013). He had leave when he married Ms Ahmed and when O was conceived, albeit of a temporary nature only. It is right that by the end of November 2009 his student leave had expired. However, we have found that his circumstances made it unlikely that he would have made an extension application whilst on remand. He did make an application in April 2010, and M was born whilst this was outstanding and prior to the making of the deportation order.
    152. That the Appellant had leave at the outset of his family life may be only be neutral in value (by analogy to the absence of criminal convictions or recourse to public funds: see Nasim [2014] UKUT 00025 (IAC)). However, the fact that the family life was not established entirely in precarious circumstances means that the weight attributed to factors one to three, above, remains undiluted, at least as it relates to Ms Ahmed and O. In respect of M, the precariousness of the situation was somewhat mitigated by surrounding circumstances."

  78. In that context Ms Patry relies in particular on the decision of this Court in Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803; [2016] 1 WLR 4203, in which the main judgment was given by Sales LJ.
  79. At para. 30 Sales LJ said that the word "precarious" is not a term of art with a clearly defined meaning in relation to immigration status. He said that it seems close to, although not precisely the same as, an idea used as an important aspect of guidance given by the European Court of Human Rights in relation to the effect of Article 8 in immigration cases: that is the concept of being "settled" in a host state. In that context he cited the judgment of the Grand Chamber in Jeunesse v The Netherlands (2015) 60 EHRR 17, at paras. 106-109, in particular at para. 108.
  80. At para. 31 Sales LJ observed that the concept of precariousness does not depend upon the presence of the person in the host state being unlawful. At para. 32 he said that the concept extends more widely, to include people who have leave to enter or remain which is qualified to a degree such that they know from the outset that their permission to be in the UK can be described as "precarious". In the circumstances of Rhuppiah itself, this Court held that the appellant's leave to be in the UK at the relevant time was "precarious in the relevant sense": see para. 34. As Sales LJ said at para. 35:
  81. "For each individual grant to the appellant of leave to enter or remain, the period of the grant was specifically limited to the comparatively short and clearly delimited period required for the completion of a course of study on each occasion. When each grant of leave was made, the appellant specifically stated that her intention was to leave at the end of her period of study. On the occasion of her application in each case, she may have had a hope that her leave might be extended when it came to an end if she could find another study course, but she had no guarantee that she would be able to do so and no guarantee that the same immigration rules would be in place when she made her further application. The hope, if she had one, of possibly eventually being in a position to apply for ILR was still more remote and tenuous. The position, therefore, in respect of each application for leave to enter or for an extension of her leave to remain was that the appellant had a stated intention to leave the UK at the end of the comparatively short period of leave requested, and only a speculative hope that she might be permitted to stay for longer at that point."

  82. In my view, the facts of the present case were not on all fours with those of Rhuppiah. In the circumstances of the present case, the fact is that the Respondent was not merely a student at all relevant times. He married a British citizen in 2009. Although that would not have guaranteed him the grant of leave to remain, and other provisions in the Rules would have had to be satisfied, nevertheless, that factor did entitle the FTT to take the view (as it did at paras. 151-152) that the Respondent's position was not entirely precarious. Further, the FTT was careful to draw a distinction between the situation at the time of the marriage and the birth of the first child, on the one hand, and what happened later, at the time of the birth of the second child, on the other, when the Respondent's situation was indeed precarious.
  83. It might have been preferable if the FTT had not included this point in the side of the balance sheet where it set out factors in favour of the Respondent but, when read in context, it is clear that what it was saying was that the fact that his situation was not entirely precarious at all times meant that the positive factors which it had set out in his favour at points one, two and three had undiluted force.
  84. Ground 3

  85. On behalf of the Secretary of State Ms Patry submits under Ground 3 that the determination of the FTT was irrational. She submits that, on the facts of this case, it was not reasonably open to the FTT to come to the conclusion that this case was one in which, exceptionally, deportation would be a disproportionate interference with the Respondent's right to respect for family life.
  86. I do not accept that submission. Before I address it in detail I would also set out what I said in Kirtis Millar, at paras. 29-30, in which I cited the well-known decision of the House of Lords in AH and others (Sudan):
  87. "29. I am very conscious that this is a second appeal. The UT has already held on the first appeal that the FTT did not err in law. I am also very conscious that both Tribunals are expert bodies which are very familiar with this area of law. As Baroness Hale of Richmond put it in AH and others (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] 1 AC 678, at para. 30:
    ' This is an expert Tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert Tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the Tribunal will have got it right: see Cooke v Secretary of State for Social Security [2002] 3 All ER 279, para. 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate Courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently. '
    30. What is sauce for the goose should also be sauce for the gander. It is not only where the Secretary of State wins before the Tribunals that such an approach is appropriate. Sometimes the Secretary of State loses before the Tribunals and can expect no more favourable treatment in this Court than she would expect to be given to immigrants and asylum claimants when they have lost."

  88. In my view, the determination by the FTT in the present case was a particularly careful and comprehensive one, in which the various factors to be weighed on each side of the balance were clearly and fairly set out. The factors in the then Appellant's (now Respondent's) favour were set out in detail between paras. 143 and 155.
  89. First, the best interests of the two children lay very firmly with the family unit remaining together. Those best interests were to be given "very significant weight" in this particular case: see paras. 143-146.
  90. Secondly, the Secretary of State had conceded that the children could not be expected to leave the UK and this was "an important" consideration. The FTT gave "very significant weight" to the fact that the family unit would be separated and that this would be "wholly contrary to the children's best interests": see paras. 147-148.
  91. Thirdly, the Respondent would also be separated from his wife, with whom he had a genuine and loving relationship. The FTT attached "significant weight" to this consideration: see paras. 149-150.
  92. Fourthly, as I have already mentioned under Ground 2, the family unit was not established entirely in precarious circumstances, which meant that the weight attributed to the first three factors "remains undiluted, at least as it relates to Ms Ahmed and O [the first child]. In respect of M [the second child], the precariousness of the situation was somewhat mitigated by surrounding circumstances": see para. 152.
  93. Fifthly, the FTT saw a public interest in keeping nuclear family units together, subject to other relevant considerations: see para. 153.
  94. Sixthly, the FTT took into account the circumstances surrounding the index offence, which it had considered in detail earlier in its determination. They had "particular regard" to the sentencing remarks of HHJ Richardson and placed "significant weight" both upon his view of the offence and upon their own findings in respect of what happened and why. Without such favourable observations by the sentencing judge, their ultimate conclusions might very well have been different: see para. 154. Amongst the underlying facts surrounding the offence, I would observe that, at paras. 105-110, the FTT gave careful consideration to a psychiatric report by Dr El-Fadl, which had been before the sentencing judge. The FTT found that report "to be a reliable source of expert evidence to which we attach significant weight": see para. 106. It was clear from that report that, at the time of the offence, the Respondent had been suffering from "substantial anxiety and distress": see para. 105. The FTT noted, at para. 107, that the Respondent had been admitted to hospital for assessment under section 2 of the Mental Health Act 1983.
  95. Seventhly, the FTT found the risk of re-offending to be low: see paras. 116-122 and 155.
  96. The FTT then carefully set out the factors on the other side of the balance, which were in favour of deportation, at paras. 156-164. First the deportation was conducive to the public interest. The FTT concluded that that public interest "carries great weight": see paras. 156-157.
  97. Secondly, the offence for which the Respondent was convicted was a serious one: it was one of violence; it involved a weapon; it is probable that the victim will be scarred for life: see para. 158.
  98. Thirdly, the FTT took into account the risk of re-offending; the need to deter foreign nationals from committing offences in this country; and the utility of deportation as a means of expressing society's revulsion at serious crimes and in building confidence in the treatment of foreign nationals who do offend here: see paras. 159-162. As Mr Gill submits, if anything, what the FTT said was arguably stating things too favourably to the Secretary of State, because the Supreme Court has since made it clear in Hesham Ali that the language of "public revulsion" is best avoided in this context: see the judgment of Lord Wilson JSC, at para. 70.
  99. Fourthly, the FTT took into account the fact that removing an individual where that is contrary to the best interests of children does not of itself render the action disproportionate: see para. 163.
  100. Fifthly, the prevention of crime and disorder is clearly a legitimate aim to pursue. There was also what the FTT called the "parallel issue of effective immigration control", which it said was engaged in respect of M's birth: see para. 164.
  101. The FTT then set out its conclusions on where the balance lay in this particular case at paras. 165-169:
  102. "165. Having weighed up all the relevant factors before us, we conclude that there exist exceptional circumstances that outweigh the strong public interest in deportation.
    166. In short terms (and not wishing to repeat what has been said previously), the harsh consequences of deportation are not justified in this particular case. A close family unit comprising of the Appellant, his wife and their two sons would be split up, very much contrary to the latter's best interests. They will lose their father for at least ten years in practice, and of course through no fault of their own. Their mother will lose her husband, and she will be forced into single-parenthood. The Appellant committed a 'one-off' offence, the seriousness of which is mitigated by the facts of his case. There is a low risk of him ever doing anything similar again.
    167. The combination of these factors goes to outweigh what are obviously the very weighty matters resting in the Respondent's side of the scales.
    168. We have Laws LJ's phrase in mind when he speaks of the need to show a very strong claim. That is not a legal test, but a recognition that the great weight attributable to the public interest can only properly be overcome in cases of exceptional merit. Such cases will inevitably be rare. We are clear that this case is an example of a very strong case, in all the circumstances and relative to many other appeals seen by the Tribunal and the higher courts. It does not succeed by a great distance; but that is perhaps never going to be the case in light of the current statutory and jurisprudential landscape.
    169. The appeal is allowed on the basis that there are exceptional circumstances under Paragraph 398 of the Immigration Rules and that the Appellant's deportation would be a disproportionate interference with his family life."

  103. In my judgement, the FTT was reasonably entitled to come to those conclusions in the light of the evidence before it. It cannot be said that the determination was irrational.
  104. Conclusion

  105. For the reasons I have given I would dismiss this appeal by the Secretary of State.
  106. Costs

  107. The parties are agreed that, in the circumstances, the Appellant should have to pay the Respondent's costs. On behalf of the Respondent Mr Gill applies for those costs to be awarded on an indemnity basis. The relevant test for present purposes, as the Appellant accepts, is whether the conduct of a party was "unreasonable to a high degree". In this context "unreasonable" does not mean merely wrong or misguided in hindsight: see Kiam v MGN Ltd (No. 2) [2002] EWCA Civ 66; [2002] 1 WLR 2810, at para. 12 (Simon Brown LJ).
  108. Mr Gill submits that the Appellant made a serious allegation against the UT, suggesting that the present case was not an isolated instance but potentially raised a "systemic" failure on the part of the UT to correct obvious errors of law by the FTT. He submits that, unlike most litigants before this Court, the Secretary of State has access to statistical and other information which would tend to support or refute that suggestion of a systemic problem. He submits that the Appellant failed to place any such evidence before this Court. He submits further that, having obtained permission to appeal on that basis, the Secretary of State abandoned the argument without explanation.
  109. On behalf of the Appellant Ms Patry accepts that the Appellant should have made clear at an earlier stage that the "systemic failure" argument was no longer to be pursued. She submits that some three years had passed by the time the appeal came to a substantive hearing and the Appellant took the view that there was no longer any basis for asserting that there might be a more systemic issue. She accepts that this should have been made clear to the Respondent and the Court. Ms Patry submits that the real issue in this case is whether a party who obtains permission on one basis (but not the sole basis) is entitled to continue in her appeal when circumstances change after the grant of permission and she decides not to pursue a certain aspect of it. She submits that, unless the continued appeal is hopeless, or where the Respondent is put to additional costs because of her conduct, then indemnity costs should not be awarded.
  110. I do not accept those submissions on behalf of the Appellant. The fundamental point which Ms Patry fails to meet is that this was a second appeal. The well known criteria for a second appeal are much more stringent than for a first appeal. It is also clear that, on the facts of this case, there was no issue of general importance other than the suggestion that there was a "systemic" problem in the UT. That was an unusual allegation and a serious one. That was clearly the basis on which Longmore LJ granted permission in this case. Having obtained permission on that basis, the Appellant failed either to make the submission good with evidence or to pursue the argument. She abandoned it without even explaining why. In my view, in all the circumstances of this case, the Appellant's conduct was indeed unreasonable to a high degree.
  111. I would therefore grant the application made on behalf of the Respondent for costs to be awarded on an indemnity basis.
  112. Lord Justice Underhill :

  113. I agree that this appeal should be dismissed, for the reasons given by Singh LJ. This seems to me a straightforward case where the FTT directed itself correctly on the law and, after a clear and careful consideration, reached a decision which was open to it on the facts. It is not a case that would normally have received permission for a second appeal, and I share Singh LJ's concern that the Secretary of State should have sought and obtained permission on the basis of an allegation of what was described as "systemic failure" on the part of the UT which she has since made no attempt to make good. For that reason I agree also that the Respondent should have his costs on the indemnity basis.


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