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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Reid v Secretary of State for the Home Department [2021] EWCA Civ 1158 (26 July 2021) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1158.html Cite as: [2021] EWCA Civ 1158 |
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ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Lane
Strand, London, WC2A 2LL |
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B e f o r e :
Lord Justice Newey
and
Lord Justice Edis
____________________
LOGAN REID |
Appellant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
Jack Anderson (instructed by Government Legal Department) for the Respondent
Hearing date: 30 June 2021
____________________
Crown Copyright ©
Lord Justice Edis:
The Facts
The relevant Statutes, Rules and Convention
(1) In this section "foreign criminal" means a person–
(a) who is not a British citizen or an Irish citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that–
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless–
(a) he thinks that an exception under section 33 applies,
(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or
(c) section 34(4) applies.
(7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.
(1) Section 32(4) and (5)–
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach–
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention.
[…]
(7) The application of an exception–
(a) does not prevent the making of a deportation order;
(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;
but section 32(4) applies despite the application of Exception 1 or 4.
Section 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).
Section 117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
Section 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.
Section 117D Interpretation of this Part
(1) In this Part—
"Article 8" means Article 8 of the European Convention on Human Rights;
"qualifying child" means a person who is under the age of 18 and who-
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;
"qualifying partner" means a partner who—
(a) is a British citizen, or
(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 - see section 33(2A) of that Act).
(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.
…………
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;
(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.
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
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) 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 granted 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 enter or 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.
399D. Where a foreign criminal has been deported and enters the United Kingdom in breach of a deportation order enforcement of the deportation order is in the public interest and will be implemented unless there are very exceptional circumstances.
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
These provisions applied to the facts of the case
a) It would be unduly harsh for the child to live in [Jamaica]; and
b) It would be unduly harsh for the child to remain in the UK without Mr. Reid.
a) Would it be unduly harsh for JR to live in Jamaica, and would it be unduly harsh for the child to remain in the UK without Mr. Reid?
b) If the answer to (a) above is No, then are there very compelling circumstances outweighing the public interest in deportation beyond those considered at (a) above, see Rule 398?
c) Are there exceptional circumstances which mean that the deportation order signed on 14 April 1998 (which he breached when entering the UK on two occasions, including when last entering the UK in 2000) should not be enforced despite the terms of paragraph 399D applying?
The decision of the FTT
"46. Having considered all the circumstances, I find that paragraph 399D applies to this appellant and on this basis there is no need for me to consider the exceptions under paragraph 399(a) and (b)."
"including whether the appellant's family can relocate with him to Jamaica, the effect on his children if they are to remain in the UK after he has been deported, the level of his integration to the UK and the circumstances in which he would be living in Jamaica to evaluate if these amount to serious compelling circumstances."
The evidence
"…do not just involve difficult or inconvenient circumstances but were having an excessively severe consequences in terms of his emotional, educational, and future development as well as his daily living circumstances."
"I would also be concerned about the fact that [the 16-year-old son] is entering an important phase of his education. Any further disruption is unlikely to be conducive to his educational achievement and attainment. I am of the view that if Mr. Reid remains in the UK, it would help promote consistency, stability and emotional well being for [both sons and the 8-year-old daughter of Mr. Reid's ex-partner]."
"At the age of 16 he is becoming an adult, and these are very significant years in any young person's development. [He] has already experienced a racist attack recently in his mother's area and his father assisted him to deal with this. As a matter of public record children from ethnic minorities have worse outcomes than those from white backgrounds and children from single parent families have additional problems. I find that [he] will be much more susceptible to peer pressure and potentially at risk because of his age. The absence of his father would leave a huge gap in his life, which cannot be filled by his mother. I find that the loss of the appellant could potentially lead to a loss of physical safety."
"I also find that if the appellant remains in the UK, he will obtain work to support his children. He has skills as a mechanic and has assisted his friend's children with maths tuition."
"I find that on his return he will have no accommodation and no income and that given his age and absence it will not be easy for him to find work. I find that in these circumstances it will be difficult for him to even have regular telephone or internet contact with his children in the UK…..I find that the appellant's deportation would represent a complete severing of family ties which would be a significant contrast to the present situation."
"In these circumstances I find that the respondent did not view the deportation of the appellant as imperative and this reduces the public interest in deportation."
The FTT's application of the tests
"98. I take into account that the best interests of the children are not a determinative factor and can be outweighed by other serious considerations. Having weighed up all of the circumstances including the best interests of the children as a primary consideration, the effect on them of their father's absence, the nature and the gravity of the offence, the appellant's lack of immigration status when committing these offences, the length of time he has remained I the UK unlawfully, the length of time that has elapsed since the offence as well as his low risk of re-offending, I find that it would be unduly harsh for the children to remain in the UK without the person who is being deported.
99. In these circumstances I find that the appellant can meet the exception at 177C(5)."
"106. In this appeal, I find that the compelling factors consist of the very serious consequences to the appellant's second son if the appellant were to be deported as well as to the other children as a whole, as well as the very low risk of re-offending, the considerable time since the last offence and significantly the failure of the respondent to take any action to enforce the Deportation Order over a period of 7 years which I find considerably lessens the public interest and imperative in deportation. Having considered all of the factors I am persuaded that these factors amount to sufficiently compelling or exceptional circumstances which outweigh the public interest in his deportation."
The UT decision
i) The judge failed properly to apply the statutory tests which meant that she could only allow the appeal if she found that there were "very exceptional circumstances", going beyond the "unduly harsh" exception, which outweighed the public interest in deportation. This ground was muddled in its presentation by a false reference to section 117C(6) of the 2002 Act, but was interpreted by the UT judge as a complaint that the judge failed to apply paragraph 399D properly.
ii) In any event, the finding of "undue harshness" was wrong.
iii) The immigration history of the appellant was given inadequate weight.
iv) The findings about Mr. Reid's inability to reintegrate into Jamaican society, set out above, were wrong and unsupported by evidence.
"Whether or not there exist in this case "very exceptional circumstances" the judge was still obliged to apply section 117C and to consider, without reference to paragraph 399D, whether the effects of the appellant's deportation upon the qualifying child would be unduly harsh. The grounds of appeal, therefore, fail to establish that the judge has erred in this part of her analysis."
"Further, the word "unduly" implies an element of comparison. It assumes that there is a "due" level of "harshness", that is a level which may be acceptable or justifiable in the present context. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent. What it does not require in my view ….. is a balancing of relative levels of severity of the parent's offence, other than is inherent in the distinction drawn by the section itself by reference to the length of sentence."
This appeal
"18. I do not believe that the decision of the FTT was perverse. As is made clear in Ogundimu [2013] UKUT 00060 (IAC) and Akpan [2015] EWCA Civ 1266, the exercise required by paragraph 276ADE (1) (vi) involves a rounded evaluation taking into account all the relevant circumstances. It is trite law that in performing an assessment of that kind different judges may reasonably reach different conclusions. Appellate tribunals must always guard against the temptation to characterise as errors of law what are in truth no more than disagreements about the weight to be given to different factors, particularly if first tribunal had the advantage of hearing oral evidence. In my view that is what has happened here. The review carried out at paragraphs 20 to 24 of the UT's judgment reads more like a fresh assessment than a review of the reasoning of the FTT. Where Judge Farrelly differs, explicitly or implicitly, from the findings of Judge Hembrough it is essentially about matters of assessment: for example, at paragraph 21 he says of the Appellant's evidence, which the Judge Hembrough had accepted, that he would not be able to obtain work in Argentina that "the possibility of his obtaining some employment in his home country cannot be ruled out". I can understand that the FTT's assessment may have been at the more generous end of the spectrum, and that another judge might have found that the Appellant's evidence was insufficient to satisfy the test under the Rules. But in my view the conclusion reached by Judge Hembrough was one to which he was entitled to come."
Discussion
"57. I make these points in response to the appellants' submissions. But I am anxious to avoid setting off a further chain of exposition. Tribunals considering the parent case under Exception 2 should not err in law if in each case they carefully evaluate the parent's deportation on the particular child and then decide whether that effect is not merely harsh but unduly harsh applying KO (Nigeria) in accordance with the guidance at paragraphs 50-53 above."
Conclusion
Lord Justice Newey:
Lord Justice Bean: