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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> SC (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 929 (26 April 2018)
Cite as:  WLR 4474,  EWCA Civ 929,  1 WLR 4474,  INLR 617,  WLR(D) 267
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ON APPEAL FROM THE UPPER TRIBUNAL,
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Canavan
 UKAITUR DA014812014
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LINDBLOM
LORD JUSTICE LEGGATT
| SC (Zimbabwe)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Marcus Pilgerstorfer (instructed by Government Legal Department) for the Respondent
Hearing date: 22 March 2018
Crown Copyright ©
Lord Justice McCombe:
"…does not include a reference to a person who is sentenced to a period of at least 12 months only by virtue of being sentenced to consecutive sentences amounting in aggregate to more than 12 months".
However, a person who is not a British citizen remains liable to deportation, if "…the Secretary of State deems his deportation to be conducive to the public good" (s.3(5) of the Immigration Act 1971) and by s.5 of the 1971 Act, if a person is liable to deportation, a deportation order may be made against him/her.
"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."
"(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."
"(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
(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."
"24. I find that the appellant was sentenced in relation to serious matters. She committed serious fraud over several years. As noted in the probation report, "since 2006 she had been working, been obtaining social housing and had made fraudulent applications for funding from the NHS by way of a bursary and from DWP by way of jobseeker's allowance. Bursary payments and allowances totalled £29,083.15. Allowances included additional money as she claimed she had children with her in the UK. She provided false birth certificates to that effect and additionally provided a false French passport to officials when applying for the bursary (under her married name) and for social housing".
25. Notwithstanding that the appellant is not assessed as posing a risk of serious harm to others and her risk of re-conviction is assessed as low, I am satisfied on the whole of the material before us that the appellant's deportation is conducive to the public good.
26. I find that the appellant is a foreign criminal as defined by section 117 (2) (iii) as a persistent offender."
The conclusion on the question of "compelling circumstances" over and above paragraphs 399/399A of the Rules was this:
"29. I cannot find any circumstances in this case which could realistically be described as being very compelling over and above a parental/partner relationship or having been lawfully resident for most of her life and integrated here. In relation to her length of residence in the UK, the appellant was granted ILR in 2010 which would not have occurred had her offending history which began years before, been discovered. The appellant's mental health is now stable having suffered a temporary breakdown in her mental health whilst in prison. Her health is not a very compelling circumstance. The appellant's mother is in Zimbabwe and I am not satisfied that all of her children are now in South Africa. The fact that she is Zimbabewean is not of itself a very compelling circumstance."
The FTT considered the proportionality of the deportation decision in paragraphs 32 and 33 of its Decision as follows:
"32. Notwithstanding that paragraphs 399 or 399A are not applicable, I now consider whether deportation is proportionate. In relation the appellant's private life, I note the comments of the sentencing Judge who stated, "I really do not know what I can believe about you. Your entire existence in the United Kingdom has been based upon falsehood". I agree with these remarks and I accord no weight to a private life formed as a result of fraud and deception. The appellant's son who is in the United Kingdom is now an adult. No evidence has been provided by him as to any dependency between him and the appellant. He is only in the United Kingdom because the appellant obtained ILR which she would never have been granted had her offending been discovered earlier.
33. The deportation of foreign criminals is in the public interest and the appellant has been convicted of serious offences. I find that the public interest requires the appellant's deportation."
"14. While the First-tier Tribunal Judge did not give detailed reasons for concluding that the appellant was "a persistent offender" for the purposes of the definitions contained in the immigration rules and the NIAA 2002 I find that this discloses no material error of law . The First-tier Tribunal Judge clearly set out the nature of the offences and the long period of time over which they were committed [7-8]. It was self-evident from the evidence that the appellant could properly be described as a "persistent offender" because she had a number of convictions for various different dishonesty offences that were carried out over a period of time. It cannot be said that the First-tier Tribunal Judge's findings were outside the range of reasonable responses in relation to the ordinary interpretation of the word "persistent" i.e. continuing to occur over a long period."
The Judge of the UT also considered that, irrespective of the conclusion that the appellant was a persistent offender, the appellant remained liable to deportation and could only resist it if she came within paragraphs 399 or 399A of the rules or there were "very compelling circumstances" over and above those factors. The FTT Judge had made a full proportionality assessment under the Rules which could not be criticised.
"9. … When a decision to deport is taken by the Secretary of State, and when an appeal is considered by the Tribunal against such a decision, the test is whether currently the deportee 'is' a persistent offender. The focus is on the present. Plainly, the Secretary of State or Tribunal could reasonably have concluded the Appellant was a persistent offender at the time of the Appellant's convictions and during the course of her offending. But the Rules look to the present. An assessment of whether the person is currently a persistent offender requires assessment of his current circumstances, report on her current offending (if any) and risk of re-offending. In the instant case there was no suggestion of current offending, no suggestion of any offending since she left prison (April 2014). Further, in a report of the Probation Service provided to the Respondent, dated 6 January 2014, the Appellant was assessed as there being 'no concerns' as to a risk of serious harm to anybody (as there was no history of violence) and low risk of re-offending (2% in first year after release from prison and 5% in second year), based on objective assessments ('The Offender Group Reconviction Scale (OGRS)'). The Probation Service considered in August 2013 that, in view of the circumstances of the offending, there was a low risk of re-offending and no risk of serious harm to others. The UT fastened onto the fact of the offending as in itself amounting to justification of the 'self-evident' conclusion that the Appellant was a persistent offender at the date of hearing. It is clear from paragraph 14 of the UT decision that the Tribunal did not appreciate that it is the status at the date of hearing that prevails and that 'persistent offender' is not a permanent status."
"21. If it were suggested that the tribunals were bound by the Secretary of State's opinion as to serious harm I would disagree. Such a conclusion would nullify the right of appeal and reduce it to a residual Wednesbury review  1 KB 223, whereas it is elementary that the right of appeal to the FTT is on the merits (see now section 84 of the Nationality, Immigration & Asylum Act 2002, to which Mr Sedon took us this morning). That position is not shifted by the reference in paragraph 398(c) to the Secretary of State's view. That feature of the language of the rule cannot, in my judgment, deprive the appellants of their right to merits appeal. This approach is, I think, supported by Bah  UKUT 00196 and again Rehman  1 AC 153. But that is not to say that the reference to the Secretary of State's view is of no significance. The Secretary of State is the primary decision-maker. She has a constitutional responsibility to make judgments as to the force of the public interest in deportation cases. That circumstance has to be balanced against the appellants' right to a merits appeal. In my judgment, that is to be done by requiring the tribunals in a paragraph 398(c) case, while considering all the facts put before them, to accord significant weight to the Secretary of State's view of "serious harm". They are not to be bound by it, but they are to treat [sic] is an important relevant factor. I should add that I cannot see that this approach is in any way undermined by the new provisions in section 117C and D of the Nationality, Immigration & Asylum Act 2002, to which Mr Sedon referred this morning."
"33. … However since, in order for s.117D(2)(c) to be engaged, the Secretary of State must already have formed the view that paragraph 398(c) of the Rules applies, the Tribunal would not be applying s.117C to anyone, however persistent their offending, that the Secretary of State has not already considered showed a particular disregard for the law in the sense explained above."
"37. The two main definitions of "persistent" in the Oxford English Dictionary are "continuing firmly or obstinately in a course of action … especially against opposition" or "continuing to exist or occur over a prolonged period, enduring."
On the two points mentioned, encapsulated in Mr Pilgerstorfer's second and third submissions in the present case, the crux of the UT's conclusion was, as stated in paragraphs 50 to 54, in these terms:
"50. What, therefore, is the natural meaning of the phrase "persistent offender" in this specific statutory context? It can certainly be said, without unnecessarily straining the natural meaning of the word that an "offender" acquires that status by virtue of committing a crime, and having once offended he does not lose that status even if he never commits another crime. In other words, once an offender, always an offender. The fact that Parliament has deliberately legislated to remove the concept of spent convictions in this context also lends force to the view that "offender" means someone who has offended in the past however long ago that may have been.
51. However, Parliament did not use the phrase "repeat offender" or "serial offender". It used the phrase "persistent offender", and persistence, by its very nature, requires some continuation of the behaviour concerned, although it need not be continuous or even regular. There may be circumstances in which it would be inappropriate to describe someone with a past history of criminality as being a "persistent offender" even if there was a time when that description would have been an accurate one.
52. Take, for example, the case of an individual who in his youth had committed a series of offences between the ages of 14 and 17 which led to a string of minor convictions, but in adulthood had led a blameless existence for 20 years. Whilst it would be accurate to describe him as an offender, the natural response to the question whether he is now a persistent offender would be no. It would still be no if at the end of that long period of good behaviour he committed another minor criminal offence, even one involving proof of intention or recklessness. That is why, both logically and as a matter of the natural meaning of the language, Mr Malik's proposition that "persistent offender" is a permanent status cannot be correct.
53. Put simply, a "persistent offender" is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or up to a certain time before it, or that the continuity of the offending cannot be broken. Whilst we do not accept Mr Malik's primary submission that a "persistent offender" is a permanent status that can never be lost once it is acquired, we do accept his submission that an individual can be regarded as a "persistent offender" for the purpose of the Rules and the 2002 Act even though he may not have offended for some time. Someone can be fairly described as a person who keeps breaking the law even if he is not currently offending. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date. Each case will turn on its own facts.
54. Plainly, a persistent offender is not simply someone who offends more than once. There has to be repeat offending but that repetition, in and of itself, will not be enough to show persistence. There has to be a history of repeated criminal conduct carried out over a sufficiently long period to indicate that the person concerned is someone who keeps on re-offending. However, determining whether the offending is persistent is not just a mathematical exercise. How long a period and how many offences will be enough will depend very much on the facts of the particular case and the nature and circumstances of the offending. The criminal offences need not be the same, or even of the same character as each other. Persistence may be shown by the fact that a person keeps committing the same type of offence, but it may equally be shown by the fact that he has committed a wide variety of different offences over a period of time."
Lord Justice Lindbolm:
Lord Justice Leggatt: