Suckoo: Yet Again, Court of Appeal Reviews and Reiterates Proper Approach To Take in Deportation Appeals

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Since the “ new rules” on deportation were introduced in July 2012,  not a lengthy period of time goes by without   the Court of Appeal providing  or re-iterating  guidance  upon the  issues  surrounding the  deportation of  foreign criminals.

Notification of deportation caselaw in the Upper Tribunal is becoming much more frequent- Between September and November 2015, in relation to deportation alone,   the following cases were adjudicated upon by the Upper Tribunal and notified as important to have regard to:

  • AB (para 399(a)) Algeria [2015] UKUT 00657 (IAC)- promulgated on 20 November 2015;
  • Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC)- promulgated on 19 November 2015;
  • Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC)- promulgated on 16 November 2015;
  • Terrelonge (para 399(b)) [2015] UKUT 00653 (IAC)- promulgated on 3 November 2015;
  • Clarke (“Section 117C – limited to deportation”) [2015] UKUT 00628 (IAC)- promulgated on 22 October 2015;
  • KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 00543 (IAC)- promulgated on 25 September 2015.

The Upper Tribunal has just recently been at it again in (OLO and Others (para 398 – “foreign criminal”) [2016] UKUT 00056 (IAC), in deciding upon the phrase “foreign criminal’ within the meaning of the deportation provisions of the Immigration Rules.

(1)THE COURT OF APPEAL IN SUCKOO

The Court of Appeal has yet again in Secretary of State for the Home Department v Suckoo [2016] EWCA Civ 39 (01 February 2016), reiterated the proper  approach  the First Tier and Upper Tribunal must take when considering  deportation appeals  in  relation  to foreign criminals.

In that case, the Appellant, a Jamaican national,  had  in November 2009 been  sentenced to a term of 5 years and 9 months imprisonment, following his plea of guilty to charges of conspiracy to supply Class A controlled drugs: Crack Cocaine and Heroin. He had married in 2006 and had two children with his wife.  The Appellant argued that his deportation would be contrary to his right to a private and family life under article 8 of the ECHR; and his appeal was allowed by the First-tier Tribunal. The Secretary of State  appealed that decision on the basis that the Tribunal had failed to consider the public interest in deporting foreign criminals and had failed to provide adequate reasons in the proportionality assessment. The Upper Tribunal  found that the First Tier Tribunal had made a material error of law and that its decision should be set aside and remade. The Upper Tier Tribunal too allowed the Appellant’s  appeal on Article 8 grounds. The Secretary of State appealed the  decision  to the Court of Appeal.

The Court of Appeal   reviewed its own decisions on the issue  and paid regard in particular to the following cases:

In allowing the Secretary of State’s appeal and remitting the   case to the Upper Tribunal for a decision to be made in light of theirs  and the other judgements, the Court of Appeal re-emphasised  at paragraph  39 of their judgement,  that , “ As this Court has repeatedly reiterated, albeit using different language, the scales are weighed in favour of deportation unless ‘there are circumstances which are sufficiently compelling (and therefore exceptional) to outweigh the public interest in deportation’, per Lord Dyson MR in MF (Nigeria) at 46; there must be ‘something very compelling’ to outweigh that public interest.”

Several issues and principles arise out of Suckoo and along  with the reviewed caselaw are set out below:

(2)LIABLITY TO DEPORTATION

Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is “liable to deportation from the United Kingdom if (a) the Secretary of State deems his deportation to be conducive to the public good”.

Section 32(4) and (5) of the UK Borders Act 2007 provides that, subject to section 33, the Secretary of State must make a deportation order in respect of a “foreign criminal”. A ‘foreign criminal’ is defined in s.32(1) as a person (a) who is not a British Citizen, (b) who is convicted in the United Kingdom of an offence, and (c) to whom condition 1 or 2 applies. Condition 1 is that the person is sentenced to a period of at least 12 months.

Section 33 provides that section 32(4) and (5) do not apply where the removal of the foreign criminal in pursuance of the deportation order would breach his Convention rights.

(3)POSITION BEFORE THE NEW IMMIGRATION RULES WERE INTRODUCED IN JULY  2012

Until the introduction of the new Immigration Rules 398, 399 and 399A in the Statement of Changes of Immigration Rules (1994) (HC 395) by virtue of the Statement of Immigration Rules (2012) (HC 194) , the question was governed entirely by case law. The new rules introduced for the first time a set of criteria by reference to which the impact of Article 8 in criminal deportation cases was to be assessed.

The previous law was stated in a number of decisions of the ECtHR including Boultif v Switzerland [2003] 33 EHRR 1179, Uner v Netherlands [2006] 3 FCR 229 and Maslov v Austria [2008] GC ECHR 1638/03.  The essence of the approach required by that law was summarised by the House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167 at paragraphs 16, 18  and 20.

Case law provides that an appeal in a removal or deportation case involves two stages. The first is to assess whether the decision appealed against is in accordance with the immigration rules; and the second is to determine whether the decision is contrary to the appellant’s article 8 rights.

(4)THE NEW RULES  INTRODUCED IN JULY 2012

Amendments to the Immigration Rules were introduced in July 2012 in an effort to emphasise the strength of the public interest regarding the desirability of deporting foreign criminals from the United Kingdom and in an effort to secure a degree of consistency in approach on the part of the Secretary of State’s officials, the First-tier Tribunal  and the Upper Tribunal. The new rules were contained in paragraphs 398, 399, 399A and 399B of the Immigration Rules.

The first step that has to be undertaken under the new Immigration Rules is to decide whether deportation would be contrary to an individual’s Article 8 rights on the grounds that:

(i) the case falls within paragraph  398 (b) or (c) and

(ii) one or more of the conditions set out in paragraphs 399 (a) or (b) or paragraph  399A (a) or (b) applies. If the case falls within para 398 (b) or (c) and one or more of those conditions applies, then the new rules implicitly provide that deportation would be contrary to Article 8.

(iii) Where paragraphs 399 and 399A do not apply either because the case falls within paragraph  398 (a) or because, although it falls within paragraph 398 (b) or (c), none of the conditions set out in paragraph  399 (a) or (b) or paragraph  399A (a) or (b) applies, the  new amended rules provide that in that event, 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.

(5)IMPLEMENTATION OF THE RULES

On 13 June 2012, the Home Office issued a statement entitled “Immigration Rules on Family and Private Life: Grounds of Compatibility with Article 8 of the European Convention on Human Rights”. It stated at paragraph 5 that:

“usually, the Courts show deference to the judgement of the decision-maker. However, in the context of immigration decisions on A8, the Courts are impeded from doing so by the failure of the Immigration Rules to reflect any consideration of proportionality under A8.”

Paragraph 20 of this statement stated that:

“The intention is that the Rules will state how the balance should be struck between the public interest and individual right, taking into account relevant case law, and thereby provide for a consistent and fair decision-making process. Therefore, if the Rules are proportionate, a decision taken in accordance with the Rules will, other than in exceptional cases, be compatible with A8.”

In the course of discussing “the new 10-year route to settlement for those whose removal would breach Article 8” the statement declared at paragraph 67:

“Bringing A8 within the Rules will ensure consistency, fairness and transparency in decision-making. We will retain discretion to grant leave outside the Rules in genuinely exceptional cases where it is considered that the Rules will produce a disproportionate result. However, it is considered that those cases will be rare since the new Rules reflect the Government’s view – which Parliament will be invited to endorse – of how the balance should be struck between individual rights under A8 and the public interests in safeguarding the UK’s economic well-being in controlling immigration and in protecting the public from foreign criminals.”

The statement concluded at paragraph 89 that, “It is the Department’s view that the new Rules on family and private life are compatible with ECHR Article 8″.

Attached to the new rules themselves was an Explanatory Memorandum. At paragraph 7.2 under the sub-heading “Approach to ECHR Article 8” it stated that:

“The new Immigration Rules will reform the approach taken as a matter of public policy towards ECHR Article 8 – the right to respect for family and private life – in immigration cases. The Immigration Rules will fully reflect the factors which can weigh for or against an Article 8 claim. The rules will set proportionate requirements that reflect the Government’s and Parliament’s view of how individuals’ Article 8 rights should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public against foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. Outside exceptional cases, it will be proportionate under Article 8 for an applicant who fails to meet the requirement of the rules to be removed from the UK.”

The Secretary of State also issued a document entitled “Criminality Guidance for Article 8 ECHR Cases”. The version of this document  issued in March 2013 was to assist caseworkers in applying the new rules, said about the phrase “exceptional circumstances” where it appeared  in rule 398:

“In determining whether a case is exceptional, decision-makers must consider all relevant factors that weigh in favour and against deportation.

“Exceptional” does not mean “unusual” or “unique”. Decision makers should be mindful that whilst all cases are to an extent unique, those unique factors do not generally render them exceptional. For these purposes, exceptional cases should be numerically rare. Furthermore, a case is not exceptional just because the exceptions to deportation in Rule 399 or Rule 399A have been missed by a small margin. Instead, “exceptional” means circumstances in which deportation would result in unjustifiably harsh consequences for the individual or their family such that deportation would not be proportionate. That is likely to be the case only very rarely.”

The current updated  version of the document, Immigration Directorate Instructions , Chapter 13: criminality guidance in Article 8 ECHR cases, Version 5.0, 28 July 2014,  is intended to reflect government thinking on how the new sections 117A-D and the 2014 Immigration  Rules  mentioned below should be interpreted by case workers when they have to apply these provisions. This  documents also states:

“2.8 Case law

2.8.1 Decision-makers must not make decisions on the basis of case law established before commencement of section 19 of the Immigration Act 2014 (28 July 2014) or refer to such case law in decision letters. Decisions must be taken solely on the basis of the Immigration Rules, which Part 5A of the 2002 Act underpins. The courts will develop new case law in relation to the public interest statements.

2.8.2 Where a case is decided outside the Immigration Rules (e.g. where the foreign criminal is an EEA national or deportation is pursued solely because of one or more overseas conviction), the decision must not refer to case law, and must explain that the Immigration Rules have guided the consideration because they reflect Parliament’s view of the balance to be struck between an individual’s right to private and family life and the public interest.

2.8.3 In cases:

  • certified as clearly unfounded under section 94(1A) or section 94(2) of the Nationality, Immigration and Asylum Act 2002 on the basis that the person is entitled to reside in a State listed at section 94(4) (designated states) or on a case by case basis; or
  • where it has been decided that further submissions do not amount to a fresh claim under paragraph 353 of the Immigration Rules,

 

decision-makers do not, as of 28 July 2014, need to include a separate consideration of Article 8 case law in the decision letter”.

Section 6: Very compelling circumstances

6.1 Paragraph 398 of the Immigration Rules sets out that in the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, or in the case of a foreign criminal who otherwise does not meet the exceptions to deportation, the public interest requires deportation unless there are very compelling circumstances over and above the circumstances described in paragraphs 399 and 399A.

6.2 A sentence of four years’ imprisonment or more means the person is a serious criminal and “very compelling circumstances” is an extremely high threshold. As a general principle, the greater the public interest in deporting the foreign criminal, the more compelling the foreign criminal’s circumstances must be in order to outweigh it.

6.3 See section 2.3 for guidance on the public interest and see sections 2.5 and 5.2 for guidance on how to consider whether a foreign criminal is able to speak English or is financially independent. Where a foreign criminal cannot speak English, or is not financially independent (e.g. through lawful employment), it will be even more difficult for him to show that that there are very compelling circumstances such that he should not be deported.

6.4 A foreign criminal sentenced to at least four years’ imprisonment must be able to show that there are very compelling circumstances over and above the circumstances described in the exceptions to deportation. This is because Parliament has expressly excluded those sentenced to at least four years’ imprisonment from the exceptions to deportation. Missing out on the exceptions by a small margin, or a series of near misses taken cumulatively, will not itself be compelling enough to outweigh the public interest in deportation. The best interests of any child in the UK who will be affected by the decision are a but not the primary consideration and must be not only compelling, but very compelling, to outweigh the public interest.

6.5 Family life claims on the basis of a genuine and subsisting relationship with a non-qualifying partner (e.g. where the partner is a refugee or has humanitarian protection or other leave to enter or remain) and on the basis of a genuine and subsisting parental relationship with a non-qualifying child (e.g. where the child is not a British citizen and has lived in the UK for less than the seven years preceding the date of the immigration decision) will only succeed where there are very compelling circumstances. Decision-makers must consider both whether family life can continue outside the UK (e.g. are the partner or child refugees from the country of return or from a third country? Do they continue to require international protection?) and the impact on the partner or child if the foreign criminal is deported and they have to remain in the UK.

6.6 When considering whether or not there are very compelling circumstances decision-makers must consider all relevant factors that the foreign criminal raises. Examples of relevant factors include:

  •  the best interests of any children who will be affected by the foreign criminal’s deportation;
  •  the nationalities and immigration status of the foreign criminal and his family members;
  •  the nature and strength of the foreign criminal’s relationships with family members;
  •  the seriousness of the difficulties (if any) the foreign criminal’s partner and/or child
  • would be likely to face in the country to which the foreign criminal is to be deported;
  •  the European Court of Justice judgment in Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09;
  •  how long the foreign criminal has lived in the UK, and the strength of his social, cultural and family ties to the UK;
  •  the strength of the foreign criminal’s ties to the country to which he will be deported and his ability to integrate into society there;
  •  whether there are any factors which might increase the public interest in deportation – see section 2.3;
  •  cumulative factors, e.g. where the foreign criminal has family members in the UK but his family life does not provide a basis for stay and he has a significant private life in the UK. Although under the rules family life and private life are considered separately, when considering whether there are very compelling circumstances, both private and family life must be taken into account.

………

6.8 This guidance takes account of relevant case law on Article 8 in identifying the factors that are relevant to an Article 8 proportionality assessment. These remain the factors to be considered in an Article 8 case. However, the weight to be attached to the public interest in weighing up proportionality is now set out in primary legislation”.

(6)CHANGES TO THE RULES IN  JULY 2014

 The “new rules” have themselves been replaced by a new version of the paragraphs of the Immigration Rules governing foreign criminals, which came into effect on 28 July 2014 and relevant new statutory provisions have been enacted, as Part 5A of the Nationality, Immigration and Asylum Act 2002. Any  decision regarding deportation of the appellant should be made under this new version of the relevant paragraphs of the Immigration Rules and with reference to Part 5A of the 2002 Act.

The 2012 Rules were themselves modified when the Immigration Act 2014 was passed. The relevant parts of that Act came into force on 28 July  2014. Section 19 of the 2014 Act introduced into the Nationality, Immigration and Asylum Act 2002 a new Part 5A containing new sections 117A-D. This new Part is headed “Article 8 of the ECHR: Public Interest Considerations”.  The new sections 117A-D set out statutory guidelines that must be applied when a court or tribunal has to decide whether an immigration decision to remove someone from the UK would be in breach of his Article 8 rights. The new section 117A is headed “Application of this Part”; the new section 117B is headed “Article 8 public interest considerations in all cases” and the new 117C is headed “Article 8 additional considerations in cases involving foreign criminals”.

Section 73(1) of the 2014 Act provided that: “The Secretary of State may, by order, make such transitional, transitory or saving provision as the Secretary of State considers appropriate in connection with the coming into force of any provision of this Act”. Paragraph 3(o) of the Immigration Act 2014 (Commencement No 1, Transitory …) and Savings Provisions) Order 2014 (SI 1820 of 2014)  provided that 28 July 2014 was the day appointed for section 19 of the 2014 Act to come into force.

The 2012 Rules were modified by Statement of Changes to the Immigration Rules of 10 July 2014 (HC 532) which were laid before Parliament on 10 July 2014. The Statement of Changes in the Immigration Rules HC 532 said, under the heading “Implementation”, that the changes set out in paragraphs 14 to 30 of this statement would take effect on 28 July 2014 and would apply to all ECHR Article 8 claims from foreign criminals which were to be decided on or after that date.

The case of YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 provides a  detailed description of the changes which have been made.

(7) PROPORTIONALITY AND THE MARGIN OF DISCRETIONARY JUDGEMENT

SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550 sets out the issues between paragraphs  37 to 42:

It was considered necessary by the Court of Appeal  to be clear as to the nature of the proportionality doctrine. It was stated that there is no doubt that proportionality imposes a more demanding standard of public decision-making than conventional Wednesbury review, whose essence is simply an appeal to the rule of reason. But the true innovation effected by proportionality is not, to be defined in terms of judicial intrusion or activism. Rather it consists in the introduction into judicial review and like forms of process of a principle which might be a child of the common law itself: it may be (and often has been) called the principle of minimal interference. It is that every intrusion by the State upon the freedom of the individual stands in need of justification. Accordingly, any interference which is greater than required for the State’s proper purpose cannot be justified. This is at the core of proportionality; it articulates the discipline which proportionality imposes on decision-makers.

The principle of minimal interference may be seen as a unifying rationale of the different insights found in the cases into the requirement of Article 8(2) that the State’s interference with the right must be “necessary in a democratic society”. These include the need to demonstrate a “pressing social need” and also, proportionality itself: the term nowhere appears in the ECHR. The principle of minimal interference justifies these ideas as linked imperatives for the avoidance of arbitrary rule; and thereby locks them into what is “necessary in a democratic society”.

The Court of appeal however stated that  principle does not tell us that when a challenge is brought on the ground of its violation, the court must always be the primary judge of the principle’s fulfilment or otherwise. The court insists that the decision-maker respect the principle; but this is perfectly consonant with the decision-maker’s enjoyment of a margin of discretion as to what constitutes minimal interference. As the cases show, the breadth of this margin is conditioned by context, and in particular driven by two factors: (1) the nature of the public decision, and (2) its source. Where the decision applies State policy which is general or strategic in nature, and where the policy source is primary legislation, the margin will be correspondingly broad.

The importance of these considerations of proportionality is as follows. The principle of minimal interference means that the fundamental right in question in the case can never, lawfully, be treated as a token or a ritual. But the margin of discretionary judgment enjoyed by the primary decision-maker, though variable, means that the court’s role is kept in balance with that of the elected arms of government; and this serves to quieten constitutional anxieties that the Human Rights Act draws the judges onto ground they should not occupy. These points matter especially where the area in question is controversial, as is the edge between a child’s rights and the deportation of a foreign criminal.

The Court of Appeal went on next  to describe two characteristics, one positive, the other negative, which the learning shows apply in Article 8 cases involving children. The first is that the interests of the child or children are a primary consideration. The second (which applies to all removal cases, whether or not there are children) is that there is no rule of “exceptionality”: that is, there is no class of case where the law stipulates that an exceptional Article 8 case must be shown in some situations but need not be in others.

These two characteristics are vouchsafed by authority of the House of Lords and the Supreme Court. They are capable, if not carefully understood, of investing child cases with a uniform prevailing force which yields no or little space to the context in hand. As for the first characteristic, the key phrase is of course “a primary consideration”. It appears in ZH(Tanzania) and subsequently, but is taken from Article 3(1) of the UNCRC, so the choice of words may be regarded as having particular significance. What sense is to be given to the adjective “primary”? We know it does not mean “paramount” – other considerations may ultimately prevail. And the child’s interests are not “the” but only “a” primary consideration – indicating there may be other such considerations which, presumably, may count for as much. Thus the term “primary” seems problematic. The Court of Appeal  thought it right  that “a primary consideration” should be taken to mean a consideration of substantial importance.

The second characteristic is that there is no rule requiring an exceptional case under Article 8 to be demonstrated. Here there is a risk that the absence of such a rule may appear to suggest that there is a single standard for breach of Article 8 which, once met, will carry the claim whatever the context. But that cannot be what is meant. The public interest in favour of removal or deportation may be stronger or weaker; and accordingly it will take more, or less, to mount an Article 8 claim that will prevail against it.

While the authorities demonstrate that there is no rule of exceptionality; they also clearly show that the more pressing the public interest in removal or deportation, the stronger must be the claim under Article 8 if it is to prevail. This antithesis, in the Court of  Appeal’s judgments, catches in the present context the essence of the proportionality test required by Article 8(2).

(8)THE DEPORTATION OF FOREIGN CRIMINALS – THE SOURCE AND NATURE OF THE POLICY

The issues are dealt with extensively between paragraphs   48 to 54 of SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550:

As regards deportation of foreign criminals under the 2007 Act, the Court of Appeal considered that  where such potential deportees have raised claims under Article 8, seeking to resist deportation by relying on the interests of a child or children having British citizenship, that insufficient attention had been paid to the weight to be attached, in virtue of its origin in primary legislation, to the policy of deporting foreign criminals.

The width of the primary legislator’s discretionary area of judgment is in general vouchsafed by high authority referred to within the Court’s judgment  but it   was  lent added force where, as here, the subject-matter of the legislature’s policy lies in the field of moral and political judgment, as to which the first and natural arbiter of the extent to which it represents a “pressing social need” is what  the Court called the elected arm of government: and especially the primary legislature, whose Acts are the primary democratic voice.

The Court stated that the importance of the moral and political character of the policy shows that the two drivers of the decision-maker’s margin of discretion – the policy’s nature and its source – operate in tandem. An Act of Parliament is anyway to be specially respected; but all the more so when it declares policy of this kind. In this case, the policy is general and overarching. It is circumscribed only by five carefully drawn exceptions, of which the first is violation of a person’s Convention/Refugee Convention rights. (The others concern minors, EU cases, extradition cases and cases involving persons subject to orders under mental health legislation.) Clearly, Parliament in the 2007 Act had attached very great weight to the policy as a well justified imperative for the protection of the public and to reflect the public’s proper condemnation of serious wrongdoers.

The Court of Appeal drew particular attention to the provision contained in s.33(7): “section 32(4) applies despite the application of Exception 1…”, that is to say, a foreign criminal’s deportation remains conducive to the public good notwithstanding his successful reliance on Article 8.  The Court of appeal said that while the authorities demonstrate that there is no rule of exceptionality for Article 8, they also clearly show that the more pressing the public interest in removal or deportation, the stronger must be the claim under Article 8 if it is to prevail. The Court  considered that the  pressing nature of the public interest here was vividly informed by the fact that by Parliament’s express declaration the public interest is injured if the criminal’s deportation is not effected. Such a result could, in the Court of Appeal’s  judgment only be justified by a very strong claim indeed.

(9)THE PUBLIC INTEREST IN DEPORTATION –ASSESSMENT THROUGH THE LENS OF THE NEW RULES

  • Secretary of State for the Home Department v Suckoo [2016] EWCA Civ 39:–

Having reviewed the  caselaw, SS (Nigeria), MF (Nigeria), LC (China) and AJ (Angola), the Court of Appeal in Suckoo considered that it followed  from these cases that the approach adopted by the Upper Tribunal in the present case was erroneous: the case should have been considered in the light of the changes brought about in the Immigration Rules or, as Sales LJ expressed it in AJ (Angola) at [39] and [40], there should have been an assessment of Convention rights ‘through the lens of the new rules’.

It was clear that the adoption of this erroneous approach led the Judge into further error: he failed to recognise that the public interest in deportation of foreign criminals and article 8 rights are not held in a suspenseful balance. The Court of Appeal stated that   as they had repeatedly reiterated, albeit using different language, the scales are weighed in favour of deportation unless ‘there are circumstances which are sufficiently compelling (and therefore exceptional) to outweigh the public interest in deportation’, per Lord Dyson MR in MF (Nigeria) at 46; there must be ‘something very compelling’ to outweigh that public interest, per Richards LJ in MA (Somalia) v. Secretary of State for Home Department [2105] EWCA Civ 48 at [17].

The Upper Tribunal’s conclusions highlighted the erroneous approach; and in the Court’s view the failure to apply the Rules properly constituted an error of law.

Although considerable weight was attached by the Judge to the article 8 rights of the Appellant and his family, and to the best interests of his child, A, in the light of Rules 398 and 399 (a)(i)(b) the ‘very compelling circumstances’ which the Secretary of State must take into account are circumstances ‘over and above’ the fact that it would be ‘unduly harsh for the child to remain in the UK without the person to be deported.’

In the Court’s  judgment, this was not, on the Upper Tribunal’s present findings, a case in which the article 8 rights of the intended  deportee  and his close family were compelling. The Upper Tribunal’s failure to look at the case through the lens of Rule 398 led it to adopt an insufficiently rigorous approach to article 8, and the decision it reached could not  be said to be the only decision open to a rational tribunal on the evidence before it. It followed that the error of law was material.

  • SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550:-

The Court of appeal observed that there is no acknowledgement in Sanade & Ors [2012] UKUT 00048, (nor, in Strasbourg) that the weight to be attached in an Article 8 case to a State’s policy of deporting foreign criminals may be greater where the policy is made, not by the executive government, but by the legislature- and this seemed to the Court of Appeal  to be of very great importance.

While the authorities demonstrate that there is no rule of exceptionality; they also clearly show that the more pressing the public interest in removal or deportation, the stronger must be the claim under Article 8 if it is to prevail. This antithesis, in the Court’s  judgment, caught  in the present context, the essence of the proportionality test required by Article 8(2).

The Court of Appeal  considered that it was worth drawing  general considerations together- (1) The principle of minimal interference is the essence of proportionality: it ensures that the ECHR right in question is never treated as a token or a ritual, and thus guarantees its force. (2) In a child case the right in question (the child’s best interests) is always a consideration of substantial importance. (3) Article 8 contains no rule of “exceptionality”, but the more pressing the public interest in removal or deportation, the stronger must be the claim under Article 8 if it is to prevail. (4) Upon the question whether the principle of minimal interference is fulfilled, the primary decision-maker enjoys a variable margin of discretion, at its broadest where the decision applies general policy created by primary legislation. This approach strikes two balances: the balance between public interest and private right, and the constitutional balance between judicial power and the power of elected government, and in particular the power of the legislature.

  • MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192:-

The Court of appeal considered it necessary to focus on the statement that it will only be “in exceptional circumstances that the public interest in deportation will be outweighed by other factors”.  It was submitted on behalf of the Secretary of State  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. The Court of Appeal  accepted this submission.

The Court of Appeal also stated that in view of the strictures contained at paragraph 20 of Huang, it would have been surprising if the Secretary of State had intended to reintroduce an exceptionality test, thereby flouting the Strasbourg jurisprudence. At first sight, the choice of the phrase “in exceptional circumstances” might suggest that this is what she purported to do. But the phrase has been used in a way which was not intended to have this effect in all cases where a state wishes to remove a foreign national who relies on family life which he established at a time when he knew it to be “precarious” (because he had no right to remain in the UK).

In the Court of Appeal’s view, that  was  not to say that a test of exceptionality was  being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual’s article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be “exceptional”) is required to outweigh the public interest in removal.

The Court stated that the general rule in the present context is that, in the case of a foreign prisoner to whom paragraphs 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”.

  • LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310:-

The Court of appeal considered that two points of importance emerge from the decisions in SS (Nigeria) and MF (Nigeria). First, both emphasise the great weight to be attached to the public interest in the deportation of foreign criminals and the importance of the policy in that regard to which effect has been given by Parliament in the UK Borders Act 2007, a weight and importance neither of which seem to have been fully appreciated by the First-tier Tribunal in this case. The second is that it is wrong to consider the question of infringement of article 8 rights outside the terms of the Immigration Rules, as the First-tier Tribunal did.

The Secretary of State was obliged to make a deportation order in respect of the Appellant pursuant to section 32 of the UK Borders Act 2007 unless he could bring himself within one of the exceptions in section 33, in this case by establishing that to remove him would involve an unlawful interference with his article 8 rights, and in making her determination she was obliged to weigh up the competing considerations in accordance with paragraphs 398 – 399A of the Immigration Rules.

The starting point for any such assessment is the recognition that the public interest in deporting foreign criminals is so great that only in exceptional circumstances will it be outweighed by other factors, including the effect of deportation on any children.

  • The Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636:-

The Court of appeal stated that the requirement that claims by appellants who are foreign criminals for leave to remain, based on the Convention rights of themselves or their partners, relations or children, should be assessed under the new rules and through their lens is important, as the Court of Appeal in MF (Nigeria) has emphasised. It seeks to ensure uniformity of approach between different officials, tribunals and courts who have to assess such claims, in the interests of fair and equal treatment of different appellants with similar cases on the facts. In this regard, the new rules also serve as a safeguard in relation to rights of appellants under Article 14 to equal treatment within the scope of Article 8. The requirement of assessment through the lens of the new rules also seeks to ensure that decisions are made in a way that is properly informed by the considerable weight to be given to the public interest in deportation of foreign criminals, as declared by Parliament in the 2007 Act and reinforced by the Secretary of State (as the relevant Minister with responsibility for operation of the immigration system), so as to promote public confidence in that system in this sensitive area.

The Court of appeal also stated that in LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310, the Court again emphasised the points made in both SS (Nigeria) and MF (Nigeria). It dismissed an appeal from the Upper Tribunal, which had allowed an appeal from the FTT.  The Court noted that it had been  held that the First Tier Judge  in that case “clearly erred” in its understanding and application of the new rules, by considering the case of a foreign criminal based on Convention rights outside the new rules. As in the cases before them in AJ(Angola) , the error had occurred because the decision of the First Tier Tribunal had been made before the judgment of the Court in MF (Nigeria) was handed down.

The Court of appeal noted that the decision of the Upper Tribunal in AJ (Angola)  was  still more vulnerable on appeal than that in AJ (Gambia). In AJ (Angola),  the Upper Tribunal did not refer to the new rules at all, nor to the UK Borders Act 2007. Thus it failed to inform itself regarding the weight to be given to the public interest in deportation of a foreign criminal by reference to the two principal legal instruments binding upon it which gave expression to that interest. Therefore, the Upper Tribunal erred in law in its approach to the case before it.

(10)IMMIGRATION RULES ON DEPORTATION ARE A COMPLETE CODE

  • MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192:-

At paragraph 44 of their judgment, the Court of Appeal  held that, the new rules are a complete code.

  • The Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636:-

The Court of Appeal    noted at  paragraph  4  of their  judgment  that the proper approach for the Secretary of State, the First Tier Tribunal  and the Upper Tribunal to adopt in relation to considering orders to deport foreign criminals in the light of the new rules was the subject of a judgment by the Court in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544.  It was noted  that in a judgment handed down on 8 October 2013, the Court held that the new rules comprised a complete code regulating how the question of possible expulsion of a foreign criminal should be addressed. Where the new rules did not expressly provide for leave to remain in the United Kingdom to be granted to a foreign criminal falling within certain defined categories of case, they nonetheless stated that such leave could be granted “in exceptional circumstances” (paragraph 398). The Court held that this rubric covered any claim by the foreign criminal to remain in the United Kingdom on the grounds that his Convention rights under the Human Rights Act 1998 prevented his removal. The Upper Tribunal in that case, in its decision at [2012] UKUT 393 (IAC), had erred by treating a foreign criminal’s claim to remain in the United Kingdom based on Convention rights (specifically, the right to respect for family and private life under Article 8) as a matter to be considered separately from application of the new rules.

The Court of appeal in AJ(Angola) noted at paragraph  38 of their judgement  that the  fact that the new rules are intended to operate as a comprehensive code is significant, because it means that an official or a tribunal should seek to take account of any Convention rights of an appellant through the lens of the new rules themselves, rather than looking to apply Convention rights for themselves in a free-standing way outside the new rules. This feature of the new rules makes the decision-making framework in relation to foreign criminals different from that in relation to other parts of the Immigration Rules, where the Secretary of State retains a general discretion outside the Rules in exercise of which, in some circumstances, decisions may need to be made in order to accommodate certain claims for leave to remain on the basis of Convention rights, as explained in Huang and R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin).

The Court of appeal in AJ(Angola) further stated at paragraph 39 of their decision  that the  requirement that claims by appellants who are foreign criminals for leave to remain, based on the Convention rights of themselves or their partners, relations or children, should be assessed under the new rules and through their lens is important, as the Court of Appeal in MF (Nigeria) has emphasised.  It seeks to ensure uniformity of approach between different officials, tribunals and courts who have to assess such claims, in the interests of fair and equal treatment of different appellants with similar cases on the facts. In this regard, the new rules also serve as a safeguard in relation to rights of appellants under Article 14 to equal treatment within the scope of Article 8. The requirement of assessment through the lens of the new rules also seeks to ensure that decisions are made in a way that is properly informed by the considerable weight to be given to the public interest in deportation of foreign criminals, as declared by Parliament in the 2007 Act and reinforced by the Secretary of State (as the relevant Minister with responsibility for operation of the immigration system), so as to promote public confidence in that system in this sensitive area.

(11)TWO STAGE TEST OVERULLED BY MF(NIGERIA)

  • LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310:-

The Court of Appeal noted that the First-tier Tribunal accepted that the appellant did not meet the requirements of the Immigration Rules, but, basing itself on the decisions of the Upper Tribunal in MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC) and Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC), it held that interference with his right to family life could be considered even if he could not demonstrate the existence of exceptional circumstances. That involved the application of a two-stage test of the kind recognised in those cases, under which it was necessary to consider possible interference with an appellant’s article 8 rights in accordance with general principles, even if he could not bring himself within the scope of the Immigration Rules. The tribunal considered that the Secretary of State’s failure to take into account the fact that the appellant’s deportation would separate him from his children for at least ten years and the effect on the children of that separation meant that her decision was not in accordance with the law. In the tribunal’s view the children’s interests would best be served by their being brought up by both parents in this country. When balancing the public interest in preventing crime, protecting the public and expressing society’s disapproval of the crimes committed by the appellant, the tribunal found that deporting him would involve a disproportionate interference with his, and their, right to respect for family life. In making that assessment it placed some reliance on its finding that the risk of re-offending was low.

In the Court of Appeal’s view,  the First-tier Tribunal clearly erred in its understanding and application of the Immigration Rules, although it could not  be blamed for doing so. The two decisions of the Upper Tribunal to which it referred, MF (Nigeria) and Izuazu, which approved a two-stage approach of the kind which it applied, were overruled in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 W.L.R. 544 when the case reached the  court on appeal. Before that had occurred, however, this court had already heard the appeal in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550, [2014] 1 W.L.R. 998, in which Laws L.J., with whom the other members of the court agreed, emphasised the importance to be attached to the policy expressed in section 32 of the UK Borders Act 2007.

  • The Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636:-

The Court of Appeal stated that it was  clear from the Upper Tribunal’s decision that it first sought to apply the new rules, and then looked to see if there were other reasons under Article 8, outside the new rules, why leave to remain should be granted. This was reasoning on the model suggested by the decision of the House of Lords in Huang.  The Court of Appeal stated that however, as the judgment of this Court in MF (Nigeria) explains, this was an error, because the new rules, promulgated after Huang, constitute a complete code for consideration of foreign criminal cases contained within the Immigration Rules. In this regard, the new rules constitute a discrete section of the Immigration Rules unlike other parts of the Rules, in relation to which the Secretary of State retains a discretion which may be exercised outside the Rules: see Huang and R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin).

The Court of appeal stated that in AJ (Gambia), the Upper Tribunal clearly failed to apply the new rules properly. It separated out consideration of whether there were “exceptional circumstances” under paragraph 398 of the new rules from consideration of whether the appellant had a good claim for leave to remain based on his Article 8 rights, in the manner held to be incorrect in MF (Nigeria). This was a material error of law. As a result of it, the Upper Tribunal failed to assess the appellant’s Article 8 case through the lens of the new rules and failed to give full and proper weight to the public interest in the deportation of the appellant, as a foreign criminal. The Upper Tribunal made no reference to the declaration of the public interest set out by Parliament in primary legislation, in sections 32 and 33 of the UK Borders Act 2007. Such references as the Upper Tribunal did make to the public interest in removal of the appellant, failed to recognise the strength of that public interest. The Upper Tribunal failed to ask itself whether there were “very compelling reasons” such as to outweigh the strong public interest in deportation: see MF (Nigeria) at para. [43].

Moreover, as a consequence of its error, the Upper Tribunal did not make a proper assessment of the impact of the judgment of the Grand Chamber of the Court of Human Rights in Maslov v Austria. At paragraph 46  of its decision, the Upper Tribunal highlighted paragraph 75  of the judgment of the Grand Chamber, in which it says that in relation to a settled migrant of the kind described there, “very serious reasons are required to justify expulsion”. The Upper Tribunal did not attempt to integrate this guidance within the framework of the new rules, but rather treated it as a free-standing matter of assessment for itself in relation to which it appears to have regarded the relevant approach to be one which imposed a heavy onus on the Secretary of State to show “very serious reasons” justifying expulsion.

In the Court of Appeal’s  view, the Upper Tribunal should have approached the assessment of the claim under Article 8 by application of the new rules, and in particular (since the appellant could not bring himself within paragraphs 399 and 399A of the new rules) by asking itself whether there were very compelling reasons, within the “exceptional circumstances” rubric in paragraph 398, to outweigh the strong public interest in deportation in the appellant’s case. In addressing that question, the Upper Tribunal should, have given due respect to the guidance from the Grand Chamber in Maslov at paragraph of the judgment (reading it in the context of the general guidance given by the Grand Chamber at paragraphs 68-76 of the judgment), but as a matter to be brought into the overall assessment and balanced against the strong public interest in deportation to which the UK Borders Act 2007 and the new rules give expression. On a proper approach under the new rules, in relation to a person assessed to have active ties to his country of citizenship, without a relevant family life in the United Kingdom and whose serious offending had occurred when he was an adult, the more natural conclusion would be that deportation would be found to be justified in a case like this.

However, as the appellant in AJ (Gambia) wished to adduce further evidence relevant to the assessment required under Article 8, and on the footing that the Court of Appeal  came to the conclusion that there had been a material error of law by the Upper Tribunal, the parties were agreed that the case should be remitted to the Upper Tribunal for a new decision to be made.

(12)CHILDREN, SECTION 55 OF  THE 2009 ACT,  INQUISITORIAL FUNCTION AND IMPLICATION OF  CHILDREN OF THE  POTENTIAL DEPORTEE BEING BRITISH

  • Secretary of State for the Home Department v Suckoo [2016] EWCA Civ 39:-

The Court of appeal stated that in relation to the Inquisitorial Function point, they agreed with the views of the Court in SS (Nigeria) that the circumstances in which a tribunal would need to satisfy itself as to the interests of a child by an inquisitorial procedure will be extremely rare. In the present case,  the Upper Tribunal allowed itself to be drawn into a highly subjective view of the family dynamics. Although the Zambrano point figured in the course of argument, the Court of  Appeal was far from persuaded that it bore  the significance that the Appellant submitted that it did. Although the Upper Tribunal found that ‘Zambrano came into play’, it does not appear to have played a significant part in the Judge’s analysis. No one was suggesting that  the child  was dependent on  her father  for the exercise of her EU rights of residence or that his removal would deprive her of the effective enjoyment of the substance of her rights as an EU citizen. However, since  the Court of Appeal  had  not heard full argument on what the Judge meant by the phrase ‘came in play’ or the extent to which the Zambrano case should or should not have borne on the assessment, it was unnecessary and undesirable to say anything further about the point.

  • SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550:-

It was noted that a principal focus of the Appellant’s argument, consistent with the grant of permission, was the need for a proper “evaluation, discovery or ascertainment of the best interests of the child”. Among other cases, the Court of Appeal  cited the two recent leading decisions of the Supreme Court on the application of Article 8 in children cases including ZH (Tanzania) v Secretary of State [2011] 2 AC 166  and then a decision of the High Court which was  particularly relied on for the appellant to support the proposition that the Upper Tribunal  owed an inquisitorial duty to investigate for itself matters affecting the interests of the appellant’s child: Tinizaray [2011] EWHC Admin 1850.  In Tinizaray,  HHJ Thornton sought to summarise the s.55 duty (paragraphs 12 ). He noted (paragraph 15) that in ZH, Lady Hale had “stressed… that it is essential to obtain all the necessary information about the child in other ways before the decision is taken”, and observed that “to do this, the right questions must be asked of the child and others to obtain a full and fair understanding of the child’s situation and views”.  The concrete proposition out forward by the Appellant,  was  that in determining an Article 8 claim where a child’s rights are affected, the child’s best interests must be properly gone into: that is to say they must be treated as a primary consideration, and the court or tribunal must be armed – if necessary by its own initiative – with the facts required for a careful examination of those interests, and where in truth they lie. It was  submitted  that was not done in this case.

The Court of Appeal stated at paragraph 35 of their judgement that while in very general terms they would not quarrel with this proposition (though they considered that the circumstances in which the tribunal should exercise an inquisitorial function on its own initiative will be extremely rare), its practical bite must plainly depend on the nature of the case in hand. It was  necessary to consider the deportation of foreign criminals as a particular class of case; and, of course, the circumstances of this case itself.

The Court of Appeal went on to  describe two characteristics, one positive, the other negative, which the learning showed apply in Article 8 cases involving children. The first is that the interests of the child or children are a primary consideration. The second (which applies to all removal cases, whether or not there are children) is that there is no rule of “exceptionality”: that is, there is no class of case where the law stipulates that an exceptional Article 8 case must be shown in some situations but need not be in others. These two characteristics are vouchsafed by authority of the House of Lords and the Supreme Court.  They are capable, if not carefully understood, of investing child cases with a uniform prevailing force which yields no or little space to the context in hand. As for the first characteristic, the key phrase is of course “a primary consideration”. It appears in ZH and subsequently, but is taken from Article 3(1) of the UNCRC, so the choice of words may be regarded as having particular significance.  The child’s interests are not “the” but only “a” primary consideration – indicating there may be other such considerations which, presumably, may count for as much. Thus the term “primary” seems problematic. In the course of argument it was  accepted by the Court  that “a primary consideration” should be taken to mean a consideration of substantial importance. The second characteristic is that there is no rule requiring an exceptional case under Article 8 to be demonstrated. Here there is a risk that the absence of such a rule may appear to suggest that there is a single standard for breach of Article 8 which, once met, will carry the claim whatever the context

At paragraph 55 of their judgment, the Court of Appeal stated that the  leading Supreme Court case, ZH , demonstrated that the interests of a child affected by a removal decision are a matter of substantial importance, and that the court must proceed on a proper understanding of the facts which illuminate those interests (though upon the latter point  the Court would not accept that the decision in Tinizaray should be regarded as establishing anything in the nature of general principle).

Proportionality, the absence of an “exceptionality” rule, and the meaning of “a primary consideration” are all, when properly understood, consonant with the force to be attached in cases of the present kind to the two drivers of the decision-maker’s margin of discretion: the policy’s source and the policy’s nature, and in particular to the great weight which the 2007 Act attributes to the deportation of foreign criminals.

The Court of Appeal noted that the appellant was convicted of serious offences of peddling Class A drugs. He had no vestige of a right to be or remain in the United Kingdom, so that immigration policy as well as his criminality favours his deportation. He worked illegally. The Upper Tribunal  found  that he “has the potential to present a real risk to members of the public and to society in general due to the effect of drugs”.

As for the interests of the appellant’s son ( aged five), this was  not a case where the appellant’s deportation will involve the child’s having to move to Nigeria. He will continue to be looked after by his primary carer, his mother, as he was while the appellant was in prison. The Secretary of State had made enquiries of the child’s mother and also Walsall Children’s Services. The appellant appeared to have been selling drugs on the streets while he had a very young son at home. The Court of appeal made it that they would not wish for a moment to sideline the importance of s.55 of the 2009 Act, or the guidance issued under it (“Every Child Matters – Change for Children”), or the statements of high authority to the effect that the child’s best interests must be properly gone into. But in the circumstance of this case it was in the Court’s  judgment wholly unrealistic to suppose that any further evidence, let alone enquiries (whether of the child himself or anyone else) undertaken on the initiative of the FTT or the UT, might offer the least possibility of establishing a case under Article 8 sufficiently strong to prevail over the extremely pressing public interest in the appellant’s deportation.

It was observed by the Court of appeal, that appeal counsel for the appellant placed considerable emphasis on the need for the Tribunal to satisfy itself as to the interests of the child in such a way as suggested an inquisitorial procedure. The Court of Appeal made it clear that circumstances in which the Tribunal will require further inquiries to be made, or evidence to be obtained, are likely to be extremely rare. In the vast majority of cases the Tribunal will expect the relevant interests of the child to be drawn to the attention of the decision-maker by the individual concerned. The decision-maker would then make such additional inquiries as might appear to him or her to be appropriate. The scope for the Tribunal to require, much less indulge in, further inquiries of its own seemed to the Court to be extremely limited, almost to the extent that  they  found  it hard to imagine when, or how, it could do so.

  • MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192:-

At paragraph 50 of their judgment,  the Court of appeal, stated that although they  disagreed with the Upper Tribunal  on the question whether the new rules provide a complete code, the differences between the Court of Appeal  approach and theirs was  one of form and not substance. They conducted a meticulous assessment of the factors weighing in favour of deportation and those weighing against. As they said, the factors in favour of deportation were substantial. They properly gave significant weight to the serious view taken by the Secretary of State of MF’s criminality and his poor immigration history.

On the other hand, they attached considerable importance to the interests of the child( his step-daughter) The decision was finely balanced and a contrary decision would have been difficult for the appellant to challenge. But they did not take into account any irrelevant factors and they did not fail to take into account any relevant factors. The Court of  Appeal held that in  these circumstances, the Upper Tribunal  were entitled to strike the balance in favour of MF and the Court of Appeal  found  no basis for interfering with their decision.

  • LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310:-

The Court of Appeal stated that the First-tier Tribunal recognised, correctly, that the welfare of the appellant’s children was a primary consideration. It held that it was clearly in their best interests to be brought up by both parents in the UK, but it did not attempt to disentangle those two elements and said little about the prospects they would face if they returned with their parents to China. Both children were still very young (aged six and a half and two years nine months respectively). The tribunal’s findings in relation to the effect of the appellant’s removal on the family are not entirely clear. In paragraph 72 it appeared to accept that it would be unreasonable to expect the children to leave the UK, but it went on to consider what penalties the family as a whole would be likely to face on return to China.  The basis for the tribunal’s findings in that regard was  also unclear, since it proceeded on the assumption that the family would return to the province where the appellant’s partner’s family live, in relation to which it said it had no evidence.

It was noted that the Upper Tribunal criticised the findings of the First-tier Tribunal on the grounds that it had failed to consider the whole range of factors that have a bearing on the best interests of children of this young age. As it pointed out, their interests are likely to be best served by remaining with their parents, whether in this country or abroad. The fact that they are British nationals is undoubtedly of importance, since it carries with it the right to live and be brought up here, but in this case the children appeared to have formed no particular attachment to this country and were of an age at which they could be expected to integrate into Chinese society with less difficulty than might otherwise have been the case. However, they are not being required to leave the UK, since their mother had indefinite leave to remain and could  continue to care for them here, if she so chose. . If the appellant was deported, it would be for him and his partner to decide whether it was in the children’s best interests to remain here with her or move to China as part of a united family. In the end, however, this case turned largely on the balance struck between two competing interests: the public interest in the deportation of the appellant and the children’s interests in remaining here with both parents.

The Court of Appeal considered that the Upper Tribunal was right to hold that the First-tier Tribunal had made errors of law in reaching its decision. It was therefore entitled to set aside the decision and re-make it.

It has been submitted on behalf of the Appellant  that the Upper Tribunal had erred in failing to recognise and give sufficient weight to the interests of the appellant’s children and in particular to their British nationality. Counsel for the appellant   reminded  the Court of Appeal of the importance which Baroness Hale and Lord Kerr had attached to nationality in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 A.C. 166. He also relied on the decision of the Supreme Court in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 W.L.R. 3690 in support of the proposition that where children enjoy British nationality very significant importance should be attached to that fact when considering where their best interests lie and whether one or other parent should be removed from this country.

The Court of Appeal stated at paragraph 24 of their judgment   that it must be borne in mind that both of those cases concerned the removal of persons who were in this country illegally. In neither case was the court concerned with the deportation of a foreign criminal.  Counsel’s submissions would carry a good deal of force if the appellant were at risk of being removed merely on the grounds that he did not have leave to remain, but in this case the appellant was  susceptible to deportation for other, much more serious, reasons. The Secretary of State was obliged to make a deportation order in respect of him pursuant to section 32 of the UK Borders Act 2007 unless he could bring himself within one of the exceptions in section 33, in this case by establishing that to remove him would involve an unlawful interference with his article 8 rights, and in making her determination she was obliged to weigh up the competing considerations in accordance with paragraphs 398 – 399A of the Immigration Rules. The starting point for any such assessment is the recognition that the public interest in deporting foreign criminals is so great that only in exceptional circumstances will it be outweighed by other factors, including the effect of deportation on any children. However, in cases where the person to be deported has been sentenced to a term of imprisonment for less than 4 years and has a genuine and subsisting parental relationship with a child under the age of 18 years who enjoys British nationality and is in the UK, less weight is to be attached to the pubic interest in deportation if it would not be reasonable to expect the child to leave the UK and there is no one else here to look after him. By contrast, however, where the person to be deported has been sentenced to a term of 4 years’ imprisonment or more, the provisions of paragraph 399 do not apply and accordingly the weight to be attached to the public interest in deportation remains very great despite the factors to which that paragraph refers. It follows that neither the fact that the appellant’s children enjoy British nationality nor the fact that they may be separated from their father for a long time will be sufficient to constitute exceptional circumstances of a kind which outweigh the public interest in his deportation. The appellant’s children would not be forced to leave the UK since, if she chose to do so, their mother is free to remain with them in this country.

  • The Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636:-

It had been submitted on behalf of the Appellant , that by reason of the interests of the children here, any tribunal would have been bound to grant leave to remain to the appellant. The Court of Appeal did not agree. The Court  did not think that the seriousness of the criminal offending of the appellant could  be brushed aside quite so readily as the Upper Tribunal said. The sentence imposed was a clear marker of the seriousness of the offending, as is also indicated by both the UK Borders Act 2007 and the new rules. The interests of the children carry substantial weight, but they have to be balanced against the substantial weight of the public interest in the removal of the appellant.  If the appellant is deported and the family chooses not to relocate to Angola, the children will continue to have a family life with their mother in the United Kingdom, albeit one which is not so rich as it might be if the appellant were granted leave to remain. It was by no means obvious that the interests of the children here are so strong as to outweigh the public interest in the deportation of the appellant

(12)FAMILY LIFE AND PRECARIOUSNESS OF DEPORTEE’S IMMIGRATION STATUS

  • MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192:-

It paragraph 18 of MF, the Court of appeal noted that on 28 March 2009, he married SB. This was at a time when it was known by all concerned that his immigration status was precarious and probably at a time when he had already been charged with the offences.

At paragraphs 40 and 41 of their judgment, the Court of Appeal, observed that the  cases were helpfully reviewed by Sales J in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin). The  Court stated that the fact that Nagre was not a case involving deportation of a foreign criminal was immaterial. The significance of the case law lies in the repeated use by the ECtHR of the phrase “exceptional circumstances”.  It was noted that in Nagre, at paragraph  40, Sales J referred to a statement in the case law that, in “precarious” cases, “it is likely to be only in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of art 8”.  This has been repeated and adopted by the ECtHR in near identical terms in many cases. At paragraph  41 and 42, Sales J said that in a “precarious” family life case, it is only in “exceptional” or “the most exceptional circumstances” that removal of the non-national family member will constitute a violation of article 8.

  • The Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636:-

The Court of Appeal noted at paragraph 31 of their decision that at the end of March 2011, the appellant met Ms J and began a relationship. This was at a time when both he and Ms J appreciated that his immigration status and right to be in the United Kingdom were precarious. According to the appellant’s chronology, in June 2011 he moved to Leeds to live with Ms J and A; on 10 September 2011 the appellant married Ms J; and on 10 October 2012 their daughter B was born. The appellant had developed a family life within this family unit.

At paragraphs 53 and 54 of their judgment, the Court of Appeal stated that it was  important to bear in mind that each family member is an individual with his or her own rights under Article 8. So far as the appellant and his partner were  concerned, they entered into their relationship at a time when the appellant’s right to be in the United Kingdom was known to both of them to be precarious. Accordingly, if the only Article 8 rights in issue had been those of the appellant and his partner, it would have required “most exceptional circumstances” to justify a conclusion that the appellant should not be deported: see R (Nagre) v Secretary of State for the Home Department, para. [40]; MF (Nigeria), paragraph 42.  Therefore, even apart from the new rules, if the case had only concerned the rights of the appellant and his partner, it would have been obvious that there would be no violation of Article 8 if the appellant were deported. Proper application of the new rules would have made that doubly obvious. The Court of Appeal however stated that  the Article 8 family connections of the appellant’s step-son, A, and daughter, B, did not arise in circumstances where the children could have had any appreciation of, or might be said to have taken the risk of, the precariousness of the appellant’s immigration status. Further, in accordance with the guidance in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166 and in SS (Nigeria), the interests of the children are to be treated as a primary consideration when considering what should be done.

(13)LOW RISK OF RE-OFFENDING AND REHABILITATION OF THE POTENTIAL  DEPORTEE

  • Secretary of State for the Home Department v Suckoo [2016] EWCA:-

At paragraph 43 of their Judgement, the Court of Appeal stated  that the Judge embarked on an analysis of the offending in   the Determination which was not open to him. In general, the facts of the conviction and sentence will be sufficient: matters of mitigation will be taken into account at the sentencing hearing. In the present case the Judge’s investigation of the facts was bound to be incomplete (there was not even a full transcript of the sentencing remarks). Furthermore the offending was not historic and neither was it ‘of short duration’, the fact that the Respondent had not offended on licence was of little relevance and the fact that he had received a very substantial sentence was not, in the circumstances, a matter to be taken into account in his favour.

  • LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310:-

At paragraphs 18 and 19 of their judgement, the Court of appeal stated that as regards assessing the risk of re-offending, the First-tier Tribunal based its conclusion that the risk of the appellant’s re-offending was low on two matters: the fact that he was a category D prisoner with no negative entries on his record and the fact that his partner’s father had settled the debts which had led him to commit the robbery without imposing on him any responsibility for repayment. The Court of Appeal  agreed with the Upper Tribunal that in the absence of any more reliable indication of the kind that is commonly provided in the form of an OASys report these facts provided a flimsy basis for a finding that the appellant posed a low risk of re-offending.

CONCLUSION

As clarified at paragraph 34, in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, in view of the uncertainty as to the Secretary of State’s case at that time, the Court asked Ms Giovannetti QC to set out it out in writing. The document she produced stated:

“The new Rules do not seek to change the law. What they seek to do is properly to reflect the Strasbourg jurisprudence when applied to the deportation of foreign criminals. Hitherto, the Secretary of State was concerned that, in some cases, caseworkers and/or the Tribunal were taking decisions which failed properly to reflect the Strasbourg jurisprudence in two main respects: (i) failing adequately to take account of the important public interest in deporting foreign criminals, as identified by Parliament; and (ii) failing to apply a sufficiently high threshold when undertaking the Art.8 proportionality balance, given the margin of appreciation afforded to States in this context.

The change implemented by the new Rules is to bring greater clarity and certainty to the decision making process so as to avoid repetition of these errors and achieve consistency of decision making.

The new Rules seek to achieve this objective in two principal ways: (i) by listing, in paragraphs 399 and 399A, categories of case which, on a proper analysis of the Strasbourg jurisprudence, deportation would be disproportionate under Art.8; and (ii) by borrowing from the Strasbourg court the phrase ‘exceptional circumstances’ which the ECtHR has used to connote a high threshold in certain Art.8 cases, and which, when interpreted in the context of the other provisions of the new Rules, reflects the public interest in deporting foreign criminals in the category of cases to which it applies”.

It is however arguable that there is as yet to be that greater certainty, consistency,   avoidance or repetition of errors   as was intended when  the new rules were implemented.  In this regards,  that there  is evident conflict  between Upper Tribunal Judges themselves  is clear having regard to the cases of KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 543 (IAC and   MAB (para 399; “unduly harsh”) USA [2015] UKUT 435 (IAC),  on the meaning of the phrase “unduly harsh”  found in  paragraph  399(a) of the  Immigration Rules and Section 117C(5)  of the 2002 Act. Recently, having  acknowledged the conflict in   KMO  and  MAB, Upper Tribunal  Judge Gill   in AB (para 399(a)) [2015] UKUT 657 (IAC) bluntly stated that neither MAB nor KMO  were binding upon  her but in effect indicated  that if she had  to pick  a decision to follow, she would chose KMO. Yet  further  guidance from the Court of appeal is therefore   expected  to be forthcoming  in order to resolve this issue.

 

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