Case No: C5/2013/0365
Neutral Citation Number: [2015] EWCA Civ 596
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Upper Tribunal Judge Hanson
DA/00937/2011
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11 June 2015
Before :

LORD JUSTICE MOORE-BICK
(Vice-President of the Court of Appeal, Civil Division)
LORD JUSTICE UNDERHILL
and
LORD JUSTICE CHRISTOPHER CLARKE
- - - - - - - - - - - - - - - - - - - - -
Between :

	BAKARY DANSO	Appellant	
	- and -		
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr. James Dixon and Mr. James Fraczyk (instructed by Kesar & Co) for the appellant
Mr. Neil Sheldon (instructed by Government Legal Department) for the respondent

Hearing date : 28th April 2015
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Moore-Bick : 
Background
1.	This is an appeal against the decision of the Upper Tribunal dismissing the appellant’s appeal against the decision of the First-tier Tribunal, which itself dismissed his appeal against the Secretary of State’s decision to remove him to the Gambia pursuant to section 32 of the UK Borders Act 2007 (“the Act”).
2.	The background to the appeal can be described quite shortly. The appellant came to this country in April 1995 at the age of 13 and claimed asylum. His claim was refused, but he was granted exceptional leave to remain until 13th May 2006 and thereafter in February 2008 he obtained indefinite leave to remain, despite the fact that he had been convicted of various relatively minor offences between June 1998 and October 2004. In December 2009, however, he was convicted of two serious offences in the form of sexual assault and attempted rape committed in June 2008, in respect of which he was sentenced to 4½ years’ imprisonment. A deportation order was made in respect of him on 8th December 2011.
3.	The appellant appealed to the First-tier Tribunal on the grounds that deportation would infringe his rights under article 8 of the European Convention on Human Rights (“the Convention”) to respect for his private and family life, thus bringing himself within the exception contained in section 33(2) of the Act. He relied primarily on a long period of residence in this country, the absence of any real connection with his country of origin, his relationship with a young woman, Michelle, whom, it was said, he hoped to marry and the fact that there was a low risk of his committing further offences. By a decision dated 24th July 2012 the tribunal dismissed his appeal, but subsequently gave permission to appeal to the Upper Tribunal.
4.	The matter came before the Upper Tribunal on 12th December 2012. By a determination dated 21st December 2012 the tribunal held that the decision of the First-tier Tribunal did not contain any error of law and dismissed the appeal.
The Immigration Rules
5.	In its decision the Upper Tribunal recorded that the appeal to the First-tier Tribunal had been heard on 11th July 2012, two days after the introduction of new Immigration Rules on 9th July 2012. The tribunal had accepted that the new rules applied and proceeded to consider the appeal by reference to them. Before us the parties accepted that it had been right to do so, if only because, as has since become apparent, the new rules accurately reflected the law as it stood at the date of the hearing.
6.	Following the decision of the Upper Tribunal in MF (Nigeria) v Secretary of State for the Home Department [2012] UKUT 00393 (IAC) it was thought that a person seeking to challenge a deportation made under section 32 of the Act was entitled to have any article 8 claim considered separately from the requirements of the Immigration Rules. However, on appeal ([2013] EWCA Civ 1192, [2014] 1 W.L.R. 544) this court held that the Immigration Rules in the form which they took following the changes made in July 2012 are a complete code which takes into account all the factors that may be relevant when deciding whether deportation involves a disproportionate interference with the article 8 rights of the person subject to the deportation order.
7.	The relevant paragraphs of the Immigration Rules in force at the date of the hearing before the First-tier Tribunal, so far as this case is concerned, provided as follows:
“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)  . . .
(c)  . . .
the Secretary of State in assessing that 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.
399.	This paragraph applies where paragraph 398 (b) or (c) applies . . .
(a)   . . . 
(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 . . .and 
(i)	. . . 
(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK.”
8.	The Rules in this form were considered by the court in MF (Nigeria) v SSHD (sup.). (They have since been amended again to take into account the judgment in that case.) Four passages in the judgment of the court delivered by Lord Dyson M.R. are of particular importance for present purposes. The first is in paragraph 39 in which the court said:
“39.	 . . . the rules expressly contemplate a weighing of the public interest in deportation against “other factors”.  In our view, this must be a reference to all other factors which are relevant to proportionality and entails an implicit requirement that they are to be taken into account.”
9.	The second is to be found in paragraphs 40-41, where the court said:
“40.	 . . . Ms Giovannetti submits that the reference to exceptional circumstances serves the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who do not satisfy paras 398 and 399 or 399A.   It is only exceptionally that such foreign criminals will succeed in showing that their rights under article 8(1) trump the public interest in their deportation
41.	We accept this submission. . . . ”
10.	The third is in paragraphs 43-44 where the court said:
“43.	The word “exceptional” is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the “exceptional circumstances”
44.	We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence. . . .”
11.	Finally, in paragraph 49, the court said:
“49.	In view of the concession made before the UT, the question of the meaning of “insurmountable obstacles” does not arise.  We did, however, hear argument on the point.  We would observe that, if “insurmountable” obstacles are literally obstacles which it is impossible to surmount, their scope is very limited indeed.  We shall confine ourselves to saying that we incline to the view that, for the reasons stated in detail by the UT in Izuazu at paras 53 to 59, such a stringent approach would be contrary to article 8.”
12.	It is relevant to note that in its present form paragraph 399A refers to “very significant obstacles” rather than “insurmountable obstacles”.
13.	Mr. Dixon on behalf of the appellant submitted that, contrary to the conclusion of the Upper Tribunal, the First-tier Tribunal had erred in law. When deciding whether deportation would involve a disproportionate interference with the appellant’s rights under article 8 of the Convention it had conflated private and family life, had failed to acknowledge that the appellant enjoyed family life with Michelle and had applied an excessively stringent test when considering whether he could continue to enjoy family life with her outside the United Kingdom. In addition, it had wrongly applied the exceptionality test in paragraph 398 of the Immigration Rules and had failed to take into account the fact that the appellant had undergone significant rehabilitation. Although it had been raised in his skeleton argument, he did not pursue a submission that the  relevant paragraphs of the Immigration Rules in force on 11th July 2012 had been ultra vires.
Private and family life
14.	It is convenient to consider the first three of those submissions together and to begin with the appellant’s relationship with Michelle. In paragraphs 20-21 of its decision the tribunal said:
“20.	 . . . Indeed, we do not find that the relationship that presently exists or indeed existed between the Appellant and Michelle could be said to amount to family life. They had not established a home together, when the Appellant was on criminal bail they did not live at the same address, there is no evidence of an engagement or of plans to marry. The prospect of their becoming a family together is something for the future. Michelle has stood by the Appellant despite the fact that their relationship was in its relatively early stages when the index offence was committed, although they both told us that she only became aware of what the Appellant had done shortly before his trial and although she has no connections with the Gambia we regard her response to the question as to whether she would accompany the Appellant to be telling. There are no insuperable barriers to her relocating to the Gambia if she continues with the choice she indicated to us and that move there together may result in their plans to become a family unit in the future being fulfilled.
21.	We do not find any of the matters put before us that the Appellant be separated from Michelle or his brothers to be exceptional . . . We do not find that the Appellant’s removal to the Gambia would amount to a disproportionate interference with any rights under Article 8, nor could such removal be an exceptional circumstance.”
15.	 Mr. Dixon drew our attention to several passages in the statements of the appellant and Michelle that were in evidence before the tribunal and submitted that they amply supported the conclusion that the two of them enjoyed family life together. He described the tribunal’s failure to make a finding to that effect as insupportable, but in my view the position was not nearly as clear as he suggested. The appellant clearly did have a relationship with Michelle, whom he met in April 2008, and spent a lot of time with her when he was not in custody (although they did not cohabit), but whether it could be described as amounting to family life was more debatable. In her oral evidence to the tribunal she said that she would probably go with him to the Gambia, but that it was very, very difficult for her. The tribunal had to evaluate that evidence and was not persuaded that the relationship had reached the stage at which it could be described as family life. In my view its conclusion cannot be described as insupportable, or in legal terms, perverse. Mr. Dixon criticised the First-tier Tribunal for conflating family and private life and for failing to recognise that, whether it amounted to family life or not, the appellant’s relationship with Michelle constituted an important element of his private life. I doubt, however, whether it matters much in this case whether it be considered in terms of family or private life; what matters is the quality of the relationship and the extent to which deportation would involve a disproportionate interference with it.
16.	Mr. Dixon submitted that the First-tier Tribunal had applied too stringent a test by considering in paragraph 20 whether there was any “insuperable barrier” to Michelle’s relocating to the Gambia with the appellant. He submitted that the right question was simply whether it would be unreasonable to expect her to move to the Gambia. 
17.	I am not convinced that the tribunal was using the phrase “insuperable barrier” as the test rather than making a passing comment, but in any event I do not think that it takes the appellant anywhere. Mr. Dixon’s argument appears to have been that the tribunal was applying in a rather simplistic way the test set out in paragraph 399 of the Immigration Rules, in which the expression “insurmountable obstacles” was used. However, it must be borne in mind that paragraph 399 itself applies only to less serious cases falling within paragraph 398(b) and (c). The appellant had been sentenced to 4½ years’ imprisonment and his case, therefore, fell within paragraph 398(a). In the case of those who have committed less serious offences, paragraph 399 required the Secretary of State to consider whether they have a genuine and subsisting relationship with a British Citizen resident here and if so whether there were insurmountable obstacles to family life with that partner continuing abroad. No such provision was or is now made, however, for those who, like the appellant, have committed the most serious offences. It follows that in such cases the existence of a relationship of that kind is not of itself sufficient to take the case outside the scope of paragraph 398. It will be only in exceptional circumstances, therefore, that the public interest in deportation will be outweighed by other factors, including the existence of a relationship of that kind. The tribunal evaluated the appellant’s relationship with Michelle and the difficulties she would face in moving to the Gambia, which was all that was required of it for the purposes of deciding whether removal would involve a disproportionate interference with their rights.  
18.	In those circumstances I do not think that there is anything to be gained by debating whether the First-tier Tribunal was right to ask itself whether there were any insuperable barriers to Michelle’s moving to the Gambia with the appellant. The only question of importance is whether the public interest in deporting the appellant is outweighed by other factors. Paragraph 398 as interpreted in MF (Nigeria) makes it clear that the public interest in deportation is very great and will be overborne only by very compelling reasons. The question is, therefore, whether in this case the various factors on which the appellant relies (including his lengthy period of residence in this country and his relationship with Michelle) amount to very compelling reasons not to deport him.
Rehabilitation and the risk of further offending
19.	The other two factors on which Mr. Dixon relied, rehabilitation and the risk of further offending, may also conveniently be considered together. There was evidence before the First-tier Tribunal that the appellant had undergone various courses while in prison designed to address aspects of his offending and it also had before it a number of reports dealing with the likelihood of his re-offending, dating from March 2009 to August 2011. The most recent report available to the Upper Tribunal (though not to the First-tier Tribunal) was that produced by a consultant forensic psychologist, Lisa Davies, in June 2012. She expressed the opinion that an assessment of the appellant as posing a medium risk of committing further sexual offences probably over-stated the position and agreed that the risk of further violent offending on his part was low.
20.	Mr. Dixon submitted that the tribunal should have placed much greater weight on the appellant’s rehabilitation and the fact that he did not pose a significant risk of re-offending. He suggested that far too little importance is attached to factors of that kind, with the result that those who commit offences have little incentive to co-operate with the authorities and make a positive effort to change their ways. I have some sympathy with that argument and I should not wish to diminish the importance of rehabilitation. It may be that in a few cases it will amount to an important factor, but the fact is that there is nothing unusual about the appellant’s case. Most sex offenders who are sentenced to substantial terms of imprisonment are offered courses designed to help them avoid re-offending in future and in many cases the risk of doing so is reduced. It must be borne in mind, however, that the protection of the public from harm by way of future offending is only one of the factors that makes it conducive to the public good to deport criminals. Other factors include the need to mark the public’s revulsion at the offender’s conduct and the need to deter others from acting in a similar way. Fortunately, rehabilitation of the kind exhibited by the appellant in this case is not uncommon and cannot in my view contribute greatly to the existence of the very compelling circumstances required to outweigh the public interest in deportation.
The exceptionality test
21.	Mr. Dixon submitted, quite rightly, that all the relevant factors must be taken into account when considering whether the circumstances of the particular appellant are such as to outweigh the public interest in deportation. He argued that in this case the First-tier Tribunal had applied a simple test of exceptional circumstances instead of the more subtle test of very compelling reasons approved in MF (Nigeria) v SSHD. Had it applied the correct test, he submitted, it might have come to a different conclusion and therefore the matter should be remitted for re-consideration.
22.	In my view there is no substance in that point. I have sought to identify the factors on which the appellant can rely as militating against his deportation. None of them is unusual either in nature or degree; nor could it possibly be said that taken together they amount to very compelling circumstances of a kind that could outweigh the public interest in deportation.  
23.	For all these reasons I have reached the conclusion that the appeal should be dismissed.

Lord Justice Underhill :
24.	I agree.
Lord Justice Christopher Clarke :
25.	I also agree.