|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v MR (Pakistan)  EWCA Civ 1598 (12 July 2018)
Cite as:  EWCA Civ 1598
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Bruce
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVID RICHARDS
LADY JUSTICE ASPLIN
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
| - and -
John Nicholson (instructed by Duncan Lewis & Co) for the Respondent
Hearing date: 19 June 2018
Crown Copyright ©
Lady Justice Asplin:
The Legal framework
"390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:
(i) the grounds on which the order was made;
(ii) any representations made in support of revocation;
(iii) the interests of the community, including the maintenance of an effective immigration control;
(iv) the interests of the applicant, including any compassionate circumstances.
390A. 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
391. In the case of a person who has been deported following conviction for a criminal offence, the continuation of a deportation order against that person will be the proper course:
(a) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order when, if an application for revocation is received, consideration will be given on a case by case basis to whether the deportation order should be maintained, or
(b) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of at least 4 years, at any time,
Unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors.
391A. In other cases, revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order."
Rule 390A requires the reader, therefore, to consider the provisions of rules A398 399A which appear under the heading "Deportation and Article 8". But for paragraph 399A they are directly relevant here and are as follows:
"A398. These rules apply where:
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;
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
. . .
(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;
. . .
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
the child is a British Citizen; or
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
it would be unduly harsh for the child to live in the country to which the person is to be deported; and
it would be unduly harsh for the child to remain in the UK without the person who is to be deported;
(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."
"In broad terms, the effect of this paragraph [390A] is evidently to apply the 'deportation and article 8' regime of paragraphs 398-399A which is in practice concerned with foreign criminals not only to the initial decision whether to make a deportation order but also to a decision whether to revoke such an order once made."
Underhill LJ also stated that in his view, paragraph 391 applies to post deportation applications and although it was not relevant to the case with which he was concerned, that he was inclined to agree that paragraph 391A excluded not only post deportation cases within paragraph 391 but also cases within paragraph 390A so that in practice it means "in cases other than those of foreign criminals".
"117B Article 8: public interest consideration applicable in all cases
The maintenance of effective immigration controls is in the public interest.
. . .
(4) Little weight should be given to
a private life, or
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.
. . .
117C Article 8: additional considerations in cases involving foreign criminals
The deportation of foreign criminals is in the public interest.
The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
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.
. . .
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.
. . ."
"Qualifying partner" and "qualifying child" for the purposes of sections 117B(4)(b) and 117C(4) are defined in section 117D in a way that includes AR and her children respectively. MR also falls within the definition of a "foreign criminal" set out in that sub-section. The meaning of 'precarious' for the purposes of s.117B was considered in Rhuppiah v Secretary of State for the Home Department  EWCA Civ 803;  1 WLR 4203. It was held that a person who is granted leave to enter or remain for a limited period in order to complete a particular course of study has an immigration status which is precarious and that the concept was distinct from an unlawful presence in the United Kingdom: Sales LJ at   with whom Sir Stephen Richards and Moore-Bick LJ agreed. MR's immigration status, therefore, was precarious from the date of his entry into the United Kingdom in 2002 until it became unlawful in October 2011.
"24. This steers the tribunals and the court towards a proportionate assessment of the criminal's deportation in any given case. Accordingly, the more pressing the public interest in his removal, the harder it will be to show that the effect on his child or partner will be unduly harsh. Any other approach in my judgment dislocates the "unduly harsh" provisions from their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case the term "unduly" is mistaken for "excessive" which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case. In the present context relevant circumstances certainly include the criminal's immigration and criminal history."
"44. Fifthly, in considering the issue arising under article 8 in the light of its findings of fact, the appellate authority should give appropriate weight to the reasons relied on by the Secretary of State to justify the decision under appeal. In that connection, Lord Bingham gave as examples a case where attention was paid to the Secretary of State's judgment that the probability of deportation if a serious offence was committed had a general deterrent effect, and another case where weight was given to the Secretary of State's judgment that the appellant posed a threat to public order. He continued:
"The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed." (para 16)
. . .
46. These observations apply a fortiori to tribunals hearing appeals against deportation decisions. The special feature in that 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; and that, where the circumstances do not fall within rules 399 or 399A, the public interest in the deportation of such offenders can generally be outweighed only by countervailing factors which are very compelling, as explained in paras 37-38 above.
. . .
50. 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 the 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, as explained in paras 14, 37-38 and 46 above, 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 MF (Nigeria) - will succeed."
Having made clear at  that the idea that the Immigration Rules were "a complete code" for the determination of Article 8 case and that the Rules alone governed appellate decision making, was mistaken, he continued at :
"53. As explained at para 17 above, the Rules are not law (although they are treated as law for the purposes of section 86(3)(a) of the 2002 Act), and therefore do not govern the determination of appeals, other than appeals brought on the ground that the decision is not in accordance with the Rules: see para 7 above. 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, as explained at paras 37-38, 46 and 50 above. 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 deportation in the case before them, the factors brought into account on the other side lead to the conclusion that deportation would be disproportionate."
The FTT and UT determinations
"It is contended that the best interest of the two British children is to have both of their parents in their daily lives and that it would be unduly harsh for the Appellant [MR] to be separated from his wife and children and them from him."
Further, at  it is recorded that the Secretary of State had considered whether paragraphs 399 and 399A applied and had decided that they did not. The paragraph also contains a short description of the content of those two paragraphs of the Immigration Rules.
"The threshold for establishing an interference with private or family life is not a high one. Once the article is engaged the focus moves on to the remaining questions. Once the existence of private or family life in the UK is established its character and intensity affect the proportionality of the proposed interference with it, not its existence or its engagement."
". . . That ground has been canvassed already and resulted in an adverse finding at the Appellant's appeal against deportation. Deportation on the basis of the then known arrangements namely, a relationship with an unmarried partner and no children was found on appeal to be appropriate. The situation however, has changed. The changed situation cannot undo the fact that the Appellant firmed up his relationship into marriage and had children despite the fact that his immigration position was precarious when he had no period of leave. Those, infirm, foundations remain. However, as in all these cases, in the absence of removal, life tends to go on. Circumstances change and the rules recognise that. Little in life is unchangeable.
36. Very serious fears arise as to whether or not the Appellant's wife could, reasonably, cope without the Appellant. She says she could not. The medical evidence, historically, seems to confirm that. The case put on behalf of the Appellant is that other members of the wife's family would not or could not give enough support when the Appellant was on remand or serving the balance of his sentence after he pleaded guilty at the Crown Court. The wife has a long-standing problem of heart palpitations brought on by anxiety. That situation has and might again reflect adversely on the interests of the children. The uncertainty of the Appellant's position has not helped his wife. The appellant has no one but himself to blame for that.
Despite removal being presumed in the public interest, the interest of this largely British family has been better served when the Appellant has been present then [sic] when he has not been present. Despite the presumption of removal being in the public interest counterbalancing aspects of the evidence strongly suggest the public and family interests are also served by stability within the family in terms of the wife's interests, her mental health and physical welfare, and the children's best interests.
It is not suggested from any of the material before me that the Appellant is anything other than a good father. He has certainly not by reason of his criminal convictions presented himself as a good role model. He has not by reason of his absence from the family home on account of his incarceration in prison done his family any good. But the fact remains that they want him back and need his [sic] back. Because of the particular problems of the children's mother this is a family who require the full-time support of two parents rather than just one. A one parent regime for the children has not been successful in the past and such an arrangement does not bode well for the future.
Standing alone this Appellant would have to take the consequences of immediate deportation. On the basis of the needs of others, his wife and the best interests of their two children; after considering the grounds on which the order was made and the representations in support of revocation including the interest of the community as a whole and the maintenance of effective immigration control; revocation of the deportation order is appropriate. Proportionality under Article 8 falls in favour of the Appellant's family members. I allow the appeal under Art 8 ECHR."
"24. It is clear from the determination reads as a whole that the Tribunal has the 'complete code' as it relates to deportation in mind. Paragraphs 2-9 contain a detailed summary of the Secretary of State's case, wherein the Tribunal specifically notes the references to paragraphs 399 and 399A in the refusal letter. Paragraph 10 records the case for the MR that he intends to show that his removal would be 'unduly harsh' for his children: 'reliance is placed on 399(a) and section 55 of the 2009 Act.' These are the legal directions in the determination. In the context of its findings the determination makes reference again to 399 and 399A . Whilst there is also express reference to 'classic' Article 8 principles it cannot sensibly be suggested that the Tribunal was not alert to the proper legal framework.'
25. As to whether the Tribunal addressed the key question of whether it would be unduly harsh for these children to grow up without their father, it is again correct to say that the term is not expressly used in the findings (albeit it that it is set out earlier in the determination). I am not however satisfied that this was material, since it is apparent from the findings overall that the Tribunal understood this question to be at the heart of its enquiry. The Tribunal accepted the medical and other evidence that MR's wife was suffering from heart palpitations and mental health problems such that her ability to look after the children alone was seriously compromised. She was unable to cope without her husband when he was in prison: "his removal will impact adversely on them all" [at 24]. Whilst the separation of a child from his father might ordinarily be described as "harsh" for this family, in its particular circumstances, it was unduly so. The criticism that the Tribunal failed to weigh in the criminality of MR cannot be made out. The determination makes repeated reference to his behaviour, the conviction and sentence and to the public interest in his deportation [eg paras 1, 5, 6, 7, 15, 16, 17, 27, 35, 37, 39].
26. I am satisfied that the First-tier Tribunal understood the tests to be applied and that the determination read as a whole is sufficiently well reasoned that the parties are able to understand the ratio of the decision. That was that in the particular circumstances of this case, the deportation of MR would have unduly harsh consequences for his children. His deportation was in the public interest but his wife's illness was such that she would be unable to cope without him and this would have adverse consequences for his children such that his removal would be contrary to their best interests."
Discussion and Conclusion
Lord Justice David Richards:
The Chancellor of the High Court, Sir Geoffrey Vos: