Court of Appeal Upholds Tribunal ‘s Decision In Highly Unusual Case With An Aggregation Of Extremely Powerful Factors, In Favour Of Intended Deportee

The Court of Appeal in The Secretary of State for the Home Department v JZ (Zambia) [2016] EWCA Civ 116  has just recently  considered  whether both tiers of the Tribunal  correctly applied paragraphs  398 to 399A of the Immigration Rules in a case where a young man was convicted of  serious offences. The Court  concluded   that the  Tribunal was correct in allowing his appeal.

The relevant immigration rules that were  applied in the Tribunal  and the  Court of Appeal in this case   were those in place before July 2014.  These required consideration of  whether there were  exceptional circumstances  such that the public interest in deportation would be outweighed by other factors where paragraphs  399 or 399A   did not apply.  The current  rules state that  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. It seems however having regard to the Court of Appeal’s considerations, reasoning and  taking into account  of relevant caselaw, that  whichever version  of the Rules  applied to the Appellant, the principles arising out of the Court of Appeal’s decision remain live.

The Appellant in JZ successfully resisted the Secretary of State’s challenge to the  Tribunal’s decision even  though the Court of  Appeal made it clear that the First-tier Tribunal’s decision was  neither well structured nor easy to follow with  findings of fact  dotted around in no very logical order.

The Court of Appeal also made interesting observations in relation to the  “ near miss”  arguments which were raised by  the Secretary of  State.

IMMIGRATION RULES ON DEPORTATION BEFORE AND AFTER JULY 2014

  • Immigration Rules considered by the Court of Appeal : Pre July 2014

“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 because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.

………

399A. This paragraph applies where paragraph 398(b) or (c) applies if –

(a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.”

  • Current Immigration Rules:

“398. Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and

(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

399A. This paragraph applies where paragraph 398(b) or (c) applies if –

(a) the person has been lawfully resident in the UK for most of his life; and

(b) he is socially and culturally integrated in the UK; and

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”

The Secretary of State for the Home Department v JZ (Zambia) [2016] EWCA Civ 116

Facts In Summary;

The Appellant, wo was born and raised in Zimbabwe on 7 April 1994 came to the UK in 2003 at the age of 9  with his mother and stepfather. His mother was  however  a Zambian national, prior to her  subsequently  obtaining  British citizenship.  In 2010,  all family members obtained indefinite leave to remain. In 2013,  the Appellant ‘s mother, stepfather and half-siblings became British citizens.  The Appellant  lived with  his family members , except when he was imprisoned.

In August 2011, the Appellant took active   part  in  the rioting in London. On 28 May 2012, he pleaded guilty to one count of violent disorder and two counts of arson. On 13 July 2012 he was sentenced to a total of 4½ years’ detention.

Having become subject to deportation under the 2007 Act, on 28 May 2013 the Secretary of State sent a deportation order to the Appellant with the reasons  to deport in an accompanying letter. Deportation was to be to Zambia.

Having appealed on private and family life grounds in the UK under article 8,  following  oral  evidence from the  Appellant, his mother and stepfather, the First Tier Tribunal allowed his appeal. The Secretary of State  appealed the decision.  The Upper Tribunal heard the appeal on 21 May 2014 and handed down their  decision on 3 July 2014.  The Upper Tribunal  rejected the challenge to the First Tier Tribunal’s findings of fact. It was  held that there was no error of law in the First Tier Tribunal’s conclusion that the Appellant’s article 8 rights outweighed the public interest in deportation. The Secretary of State appealed to the Court of Appeal.

The Secretary of State’s arguments  in the Court of Appeal  in summary were:

  • The First-tier Tribunal misapplied rule 398 of the Immigration Rules by treating matters described in rules 399 and 399A as constituting “exceptional circumstances” within the meaning of rule 398.
  • The First-tier Tribunal erred in applying a freestanding article 8 analysis, rather than addressing the article 8 issues through the lens of the Immigration Rules.
  • The facts as found by the First-tier Tribunal are not capable of constituting “exceptional circumstances” within the meaning of rule 398 of the Immigration Rules. The First-tier Tribunal erred in treating them as such.
  • The First-tier Tribunal failed properly to assess (a) the strength of the Appellant’s family ties in the UK and (b) the degree of interference with the Appellant’s family life which would be caused by deportation to Zambia.
  • The First-tier Tribunal impermissibly applied a “near miss” principle in allowing the Appellant’s appeal under the Immigration Rules.

Court of Appeal’s Considerations and Conclusions:

The Court of Appeal stated that Rule 398 first requires that the Secretary of State  see whether the proposed deportee falls into the safety net of rule 399 or 399A. If he does not, then rule 398 requires the Secretary of State to consider whether there are exceptional circumstances which outweigh the public interest in deportation. The Court of  Appeal stated  that  there was  no “near miss” principle. The Court stated that a  deportee who has a sentence slightly longer than 4 years or who failed by a small margin to satisfy the 20 years’ residence requirement cannot say that that fact alone constitutes “exceptional circumstances”.  The Court of Appeal however stated that it would be bizarre if the Secretary of State were required to ignore such matters altogether when considering whether there were “exceptional circumstances”.

In the Court’s view, rule 398 requires the Secretary of State (and on appeal the First-tier Tribunal) to consider all relevant matters in deciding whether there are “exceptional circumstances” which outweigh the public interest in deportation. The Court made it clear that in the vast majority of cases the answer will be no, but stated that  the Secretary of State cannot take a shortcut to arrive at that answer by ignoring every circumstance of the character mentioned in rules 399 and 399A.

The Court noted that in the present case some of the facts relied upon by the First-tier Tribunal as forming part of the “exceptional circumstances” related to the Appellant’s length of residence in the UK and his lack of ties with Zambia. In the Court’s  view, the First-tier Tribunal was entitled to take those matters into account as relevant factors when considering whether on a holistic assessment “exceptional circumstances” existed sufficient to outweigh the public interest in deportation.

The Court stated that the correct approach for any decision-maker applying rules 398 to 399A of the Immigration Rules,  the  task is not to carry out a freestanding analysis of the article 8 factors. The Secretary of State had already carried out that exercise in drafting rules 398 to 399A. Those rules form a complete code explaining how article 8 operates in cases where a foreign criminal is resisting deportation. The decision-maker must take account of the proposed deportee’s Convention rights through the lens of the Immigration Rules. The rules emphasise the high public interest in deporting foreign criminals. In a case to which rules 399 and 399A do not apply, very compelling reasons will be required if they are to constitute “exceptional circumstances” which outweigh the public interest in deportation. For a fuller exposition of the well-established principles, the Court of Appeal  referred to the cases of :

Despite the shortcomings with the  First Tier Tribunal’s decision,  the Court of Appeal was  satisfied that the Tribunal did apply the correct legal principles and did not apply the wrong test. The Tribunal cited the Court of Appeal’s decision in MF (Nigeria) and applied it and also stated that “exceptional circumstances” are necessary before a foreign criminal can resist deportation on article 8 grounds. The Court of Appeal considered that the First Tier Tribunal did not carry out a freestanding article 8 analysis. Instead, it took account of the Appellant’s article 8 rights through the lens of Immigration Rules 398 to 399A.

In response to the Secretary of State’s submission that although the Tribunal referred to the need for “exceptional circumstances”, it did not apply a high enough standard of exceptionality,  the Court of Appeal  stated  that from  evidence which the Tribunal accepted, the Appellant  had only once set foot in Zambia  when, as a 9 year old boy, he was changing planes. It  was considered  by the Court  that  the  Tribunal made the valid point that deportation in this case would not involve “returning” the Appellant to his country of origin. It would mean sending the  Appellant to a country where he had  never lived and where he would face the difficulties described in  the Tribunal’s findings.  The  Court of  Appellant considered that when these  matters are added to  the relevant stated  findings  of the Tribunal,   there was an aggregation of extremely powerful factors pointing in favour of allowing the Appellant to continue enjoying his family life in the UK. The fact that the Appellant  committed his offences when he was only 17 must be a relevant factor, though not of course conclusive.

The Court of Appeal stated that this was  a highly unusual case. The First-tier Tribunal was required to carry out an evaluation. That was a task for the tribunal, not for the Court of Appeal. It was considered that if the First-tier Tribunal had held that the facts as found did not amount to “exceptional circumstances” within the meaning of rule 398, no appellate tribunal or court would be entitled to interfere with that conclusion. On the other hand, if the First-tier Tribunal concluded (as it did) that those facts did amount to “exceptional circumstances”, again no appellate tribunal or court could interfere.

The Court of Appeal stated their overall conclusion was  that the  case  was  a finely balanced one. In that regard, it was  not unlike MF (Nigeria). The  Court in JZ made it clear that it  was  not entitled to interfere with the decision reached by the First-tier Tribunal and the Upper Tribunal.

The Court of Appeal further stated that the First-tier Tribunal examined very fully the character of the Appellant’s family life in the UK. The Tribunal also considered the effect of deporting the Appellant to a country where he had never lived before. The Tribunal held that this would “eliminate” his family life. The First-tier Tribunal’s omission to mention modern means of communication does not undermine the decision.

The Secretary of State had  also  argued  that the First-tier Tribunal impermissibly approved a “near miss” principle. It was submitted,  that the First-tier Tribunal may have been influenced by the fact that the Appellant  was only just 18 when convicted.   It was pointed out that Miah v Secretary of State for the Home Department [2012] EWCA Civ 261; [2013] QB 35 prohibits reliance on a “near miss” principle.  The Court of Appeal did not accept the  argument.  It was  considered that  upon reading the First-tier Tribunal’s decision as a whole,  the  Court  was satisfied that the Tribunal was not relying upon a “near miss” principle. The tribunal was entitled to and did have regard to the Appellant’s age at conviction as one of many relevant factors when determining whether, cumulatively, those matters amounted to “exceptional circumstances” within the meaning of rule 398.

The Court of Appeal dismissed the Secretary of State’s appeal.

OTHER ISSUES: “NEAR MISS”ARGUMENTS IN ARTICLE 8 CLAIMS

  • The Secretary of State for the Home Department v JZ (Zambia) [2016] EWCA Civ 116- Deportation case

Paragraph 32(5)   of the  UK  Borders Act 2007 states that the Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). Section 33(2) however states that Section 32(5) does not apply where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.   As noted about in JZ, the Secretary of State had sought to argue that   the  First-tier Tribunal impermissibly applied a “near miss” principle in allowing the  Appellant’s appeal under the Immigration Rules on the basis  that the  First-tier Tribunal may have been influenced by the fact that the  Appellant was only just 18 when convicted( contrary to Miah v Secretary of State for the Home Department [2012] EWCA Civ 261) . The Court of Appeal in JZ,  concluded at paragraph 56 of their decision  that the Tribunal  did not rely  upon a “near miss” principle but that  the  Tribunal was entitled to and did have regard to the Appellant’s age at conviction as one of many relevant factors when determining whether, cumulatively, those matters amounted to “exceptional circumstances” within the meaning of rule 398.

It is noteworthy however that the Court of Appeal stated at paragraph 29 of their judgement, that, “Rule 398 first requires the Secretary of State to see whether the proposed deportee falls into the safety net of rule 399 or 399A. If he/she does not, then rule 398 requires the Secretary of State to consider whether there are exceptional circumstances which outweigh the public interest in deportation. Obviously there is no “near miss” principle. A deportee who has a sentence slightly longer than 4 years or who fails by a small margin to satisfy 20 years’ residence requirement cannot say that that fact alone constitutes “exceptional circumstances”. But it would be bizarre if the Secretary of State were required to ignore such matters altogether when considering whether there were “exceptional circumstances”.

  • Miah v Secretary of State for the Home Department [2012] EWCA Civ 261 – Non deportation case

This was a Court of Appeal case dealing with the issue where an appellant misses satisfying the requirements of the Immigration Rules by a small margin, and contends that his removal from the UK will breach his rights under Article 8, the weight to be given to the maintenance of immigration controls should be diminished for the purpose of the assessment as to whether his removal from the UK should be permitted under Article 8(2).

In Miah, the Appellant  did not meet the requirements of paragraphs 128 and 134 of the Immigration Rules because he had not held a work permit for the requisite 5 years. When he made his application to the Secretary of State in July 2010, he was only some two months short of continuous residence for the 5-year period required by paragraph 134.  One of the grounds put forward in the Court of Appeal was that  the First Tier Tribunal’s decision on Article 8  was in error because it failed to apply the “ near miss” principle. In oral argument the submission was that the weight to be given to non-compliance with the Rules diminishes where the applicant is “nearly” or “almost” compliant. For the Secretary of State, it was  submitted that the Rules are, rules, and the public interest in maintaining immigration control requires that the Rules be complied with as an  assessment of the degree of non-compliance with the Rules plays no part in the assessment required by Article 8.

The Court of Appeal stated that the starting point for the “near miss”  argument is that the rule has not been complied with. The Court made reference to the following caselaw:

The Court of Appeal readily conceded that the Appellate Committee in Huang did not have before it a “near-miss” argument.  The  Court in Miah, considered  nonetheless, Lord Bingham’s reference in paragraph 6 to “rules, to be administratively workable, [requiring] that a line be drawn somewhere” and in paragraph 16 to “the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory” to be helpful and generally inconsistent with a “near-miss” principle.

It was   however noted  in Miah that neither Mongoto nor Rudi was cited to the Court in Pankina, and Sedley LJ did not refer to the judgments in those cases. It was  doubted that they were cited in MB (Article 8 – near miss) Pakistan. It was acknowledged that there was  a conflict of authority, however the Court in Miah  had no difficulty in preferring and following  the judgments in Mongoto and Rudi, for a number of reasons;

  • It was considered that what was said in Mongoto and Rudi on this issue was in both cases part of the ratio decidendi, necessary for the decision of the Court. That was not the case in Pankina: The answer to the question which the Court in Miah paraphrased as “Is the Secretary of State obliged to take Article 8 into account?” did not require the Court to address the relative weight to be given to the Article 8 considerations or the relative weight to be given to the non-compliance with the Secretary of State’s policy or the Immigration Rules. It followed   that the Court in Miah was bound to follow what was said in Mongoto and Rudi and to refuse to follow what was said obiter in Pankina.
  • In the Court ‘s view in Miah, it did not follow from the fact that the extent and quality of an applicant’s family and private life in this country must be assessed that the degree of non-compliance with an Immigration Rule similarly falls to be assessed. One is always a matter of degree, requiring assessment; non-compliance with a rule may be a bright line question, admitting of an answer Yes or No.
  • The Court in Miah stated that “A rule is a rule”. The considerations to which Lord Bingham referred in Huang require rules to be treated as such. The Court of Appeal considered that once an apparently bright-line rule is regarded as subject to a Near-Miss penumbra, and a decision is made in favour of a near-miss applicant on that basis, another applicant will appear claiming to be a near miss to that near miss. There would be a steep slope away from predictable rules, the efficacy and utility of which would be undermined.

The   Court  of Appeal dismissed  the appeal in relation to the “near miss argument. In  the Court’s  judgment, there  was no Near-Miss principle applicable to the Immigration Rules. The Court held that the  Secretary of State, and on appeal the Tribunal, must assess the strength of an Article 8 claim, but the requirements of immigration control is not weakened by the degree of non-compliance with the Immigration Rules.

The Secretary of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387- non deportation case

The Court of  Appeal  had before it four appeals in immigration cases and applications for permission to appeal in two other immigration cases. The appeals and applications were listed together to allow for consideration by the court of the proper approach to be adopted, in light of new Immigration Rules promulgated in July 2012, to applications for leave to enter the United Kingdom by persons who are family members of someone already present here.

The issue of near miss argument was dealt with by the Court of Appeal  between  paragraphs 54 and 58 of SS(Congo).

It was noted by the Court that at the hearing, there was debate about the proper approach to be adopted in ‘near miss’ cases, for example if the sponsor of an applicant for leave to enter  could provide evidence of an annual income a little less than the £18,600 required or could provide evidence which might be regarded as similar to (but not the same as) that required under Appendix FM-SE.  Submissions were made by the Secretary of State, to the effect that ‘a miss is as good as a mile’ and that the fact that one is dealing with a ‘near miss’ case should be irrelevant to the Article 8 balancing exercise required. The general position of the Appellants, on the other hand, was that great weight should be attached to the fact that there was a ‘near miss’ by an applicant in relation to the requirements of the Rules.

It was the Court’s judgment that the true position lay between these submissions. Contrary to the argument of the Appellants, that fact that an applicant may be able to say that their case is a ‘near miss’ in relation to satisfying the requirements of the Rules will by no means show that compelling circumstances exist requiring the grant of  leave to enter  outside the Rules. A good deal more than this would need to be shown to make out such a case. The Court stated that the Appellant’s  argument failed  to recognise the value to be attached to having a clear statement of the standards applicable to everyone and failed  to give proper weight to the judgment of the Secretary of State, as expressed in the Rules, regarding what is needed to meet the public interest which is in issue. The ‘near miss’ argument of the Appellants could  not  be sustained in the light of these considerations and the authority of Miah v Secretary of State for the Home Department [2012] EWCA Civ 261.

However, the Court of Appeal  said that it could not be said that the fact that a case involves a ‘near miss’ in relation to the requirements set out in the Rules is wholly irrelevant to the balancing exercise required under Article 8. If an applicant can show that there are individual interests at stake covered by Article 8 which give rise to a strong claim that compelling circumstances may exist to justify the grant of leave to enter outside the Rules, the fact that their case is also a ‘near miss’ case may be a relevant consideration which tips the balance under Article 8 in their favour. In such a case, the applicant will be able to say that the detrimental impact on the public interest in issue if leave to enter  is granted in their favour will be somewhat less than in a case where the gap between the applicant’s position and the requirements of the Rules is great, and the risk that they may end up having recourse to public funds and resources is therefore greater.

CONCLUSION

Although the outcome in JZ was positive, it is noteworthy however that  the Court stated that the facts of that case were highly unusual.

In relation to the “ near miss “ arguments as they affect Article 8 claims, the Court of Appeal in JZ and SS(Congo) ,  in comparison to Miah,  approached  the issues in a much more flexible  way  and certainly  their clarifications can be  relied upon in  suitable and appropriate  cases.

 

 

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