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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> MA (Pakistan) v Secretary of State for the Home Department [2019] EWCA Civ 1252 (18 July 2019) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1252.html Cite as: [2019] EWCA Civ 1252 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Upper Tribunal Judge Kebede
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE LINDBLOM
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MA (PAKISTAN) |
Appellant |
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and |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
Mr Marcus Pilgerstorfer (instructed by Government Legal Department) for the Respondent
Hearing date: 16 May 2019
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Crown Copyright ©
Lord Justice Simon:
Introduction
History
I am writing to inform you that the Secretary of State has taken note of your conviction on 10 April 2006 at … for Manslaughter. The Secretary of State takes a serious view of your conduct and, in the light of your conviction, she has given careful consideration to your immigration status and the question of your liability to deportation.
In all the circumstances, however, the Secretary of State has decided not to take any deportation action against you on this occasion, but you should clearly understand that the provisions of the Immigration Act 1971 as amended by the Immigration and Asylum Act 1999 relating to deportation continue to apply to you. Under these provisions a person who does not have the right of abode is liable to deportation if the Secretary of State deems his deportation to be conducive to the public good or if he is convicted of an offence and is recommended for deportation by a court.
I should warn you therefore that if you should come to adverse notice in the future, the Secretary of State will be obliged to give further consideration to the question of whether you should be deported. If you commit a further offence, and are over 18 years of age, the Secretary of State would also need to consider the automatic deportation provisions of the UK Borders Act 2007. You should be aware that under such circumstances, the Secretary of State may be legally obliged to make a deportation order against you.
The hearing before the FtT
Where a foreign criminal who has previously been granted a period of limited leave under this Part applies for further limited leave or indefinite leave to remain his deportation remains conducive to the public good and in the public interest notwithstanding the previous grant of leave.
The argument was that this is a free-standing provision; and the respondent had failed to show that the appellant's deportation was in the public interest in the light of the previous grants of leave to remain.
(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.
The FtT findings
(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.
The Upper Tribunal decision
Grounds 1 and 2
Of course, different considerations may apply where there is relevant fresh evidence that was not available at the date of the hearing or a change in the law, and the principle has no application where there is a change in circumstances or there are new events after the decision … (emphasis added)
So far as the new Part 5A of the 2002 Act is concerned, section 117A is in force as from 28 July 2014. There is no guidance anywhere as to whether the new provisions are to be applied to cases in which the SSHD has already made a decision and the matter has been appealed through the tribunal system. But section 117A itself says that the new Part 5A applies 'where a court or tribunal is required to determine whether a decision made under the Immigration Acts' breaches a person's Article 8 rights and would so be unlawful under section 6 of theHuman Rights Act
1998. Either this Court or the UT would, at the stage where the decision is being remade, have to determine whether a decision to deport YM is a breach of his Article 8 rights, so it would have to apply the statutory provisions applicable to that determination that are then in force. To my mind that does not involve any issue of 'retrospectivity'. Even if it did, it seems to me that the relevant question to ask is that posed by Lord Mustill (in the context of a new statutory provision) in L'Office Cherifien des Phosphates v Yamashita-Shinnohon Steamship Co Ltd: what does fairness require? This test was adopted by the House of Lords in Odelola v SSHD in the context of changes in the Immigration Rules between the date of an application for leave to remain and the time the application was determined by the SSHD. To my mind there is no unfairness in applying the new statutory provisions to a decision that has now to be made by a tribunal or court. The decision should reflect the balance that has been struck, which has some benefits and, perhaps, some drawbacks for the person concerned.
It appears clear to us that the exceptions identified in paragraph 35 of TB (Jamaica) applied in this case. Not only have the factual circumstances of the appellant's case moved on considerably since the point in time when that determination was reached in excess of ten years prior to this decision, but also there had been a change in the law through the introduction of the provisions in the Immigration Act 2014 which are at the heart of this appeal. Whilst in our view it was necessary for the respondent to give consideration to which of the offences within the appellant's criminal past were relied upon as reasons for the decision to deport him, the respondent was not, in the circumstances, precluded by [IAT's] findings from relying upon the 2002 conviction as part of the overall appraisal of the appropriateness of deportation in his case.
The reasoning is persuasive.
There is no legal symmetry in indefinite leave to remain co-existing with the status of someone whose presence is not conducive to the public good. It makes perfectly good sense, whilst the legal obstacle remains, for the Secretary of State to be in a position to re-visit the terms of the leave to enter. Moreover, the legal obstacle is not necessarily, or even usually, permanent.
… it seems to me that the changes in the legislation and immigration rules, and the stricter approach to the public interest mentioned by the [FtT] at [70] were sufficient in themselves to constitute the said change in circumstances. There was no indication in paragraph 399C or in the case law to which Mr de Mello referred me that there was a requirement for further offending or a significant change of circumstances in order for a fresh deportation decision to be justified and lawful.
Ground 3
Grounds 4 and 5
Ground 6
Conclusion
Lord Justice Lindblom
The NIAA 2002
Part 5A was inserted into the Act with effect from 28 July 2014, after the revocation of the first deportation decision, but prior to the issue of the second deportation decision).
So far as material, it provides as follows:
117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of theHuman Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), 'the public interest question' means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
…
117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ('C') who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(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.
117D Interpretation of this Part
(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.
Immigration Rules A362-400
A362: Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 28 July 2014 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.
A363. The circumstances in which a person is liable to deportation include:
(i) where the Secretary of State deems the person's deportation to be conducive to the public good;
…
A398. These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention
(b) a foreign criminal applies for a deportation order made against him to be revoked.
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;
…
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.
399. This paragraph applies where paragraph 398 (b) or (c) applies if –
(a) the person has a genuine and 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 7 years immediately preceding the date of the immigration decision; and in either case
(iii) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(iv) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
399A. This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.
399B. Where an article 8 claim from a foreign criminal is successful:
(a) in the case of a person who is in the UK unlawfully or whose leave to enter or remain has been cancelled by a deportation order, limited leave may be granted for periods not exceeding 30 months and subject to such conditions as the Secretary of State considers appropriate;
(b) in the case of a person who has not been served with a deportation order, any limited leave to enter or remain may be curtailed to a period not exceeding 30 months and conditions may be varied to such conditions as the Secretary of State considers appropriate;
(c) indefinite leave to enter or remain may be revoked under section 76 of the 2002 Act and limited leave to enter or remain for a period not exceeding 30 months subject to such conditions as the Secretary of State considers appropriate;
(d) revocation of a deportation order does not confer entry clearance or leave to remain or re-instate any previous leave.
399C. Where a foreign criminal who has previously been granted a period of limited leave under this Part applies for further limited leave or indefinite leave to remain his deportation remains conducive to the public good and in the public interest notwithstanding the previous grant of leave.