Court of Appeal’s Further Guidance On The Correct Approach To Deportation Appeals

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deportedIn addition to noting that the  Court of Appeal has  provided  yet further guidance   in relation to deportation appeals in NA (Pakistan) v Secretary of State for the Home Department & Ors [2016] EWCA Civ 662,  legal practitioners  need to brace themselves  for yet further  wordplay  in relation   to newly introduced  deportation  lingo.  We are  now  familiar with  and have   grown  fairly comfortable   with  regularly used  terms such as, “ a free standing Article 8 analysis”  and “ through the lens of the immigration rules”.  The Court of Appeal  in  NA (Pakistan) has  gone further; as noted at paragraph  14 of their  judgement, when considering  the Immigration Rules on deportation, foreign criminals are divided into two categories: those with sentences of between one and four years’ imprisonment and those sentenced to four years or more. The Court of Appeal  then  decided for the sake of “simplicity”,   that the  first category shall be referred to  as ‘medium offenders’ and the second category as ‘serious offenders’.

The Court of Appeal also sought in their considerations  to differentiate the Immigration Rules   on deportation ( paragraphs   398 to 399A)which  applied from  2012( the 2012 Rules) and those which  applied, when amended,  from 2014( the 2014 Rules) along  with the  introduction of  sections  117A to 117D  of the  Nationality, Immigration and Asylum Act 2002, with  the Immigration 2014 Act  having provided that a new Part 5A should be inserted in the  2002 Act.

In reference to  paragraph 15  of their judgment, the Court of  Appeal noted   that medium offenders could escape deportation if they came within paragraph 399 (‘parent/partner provisions’) or paragraph 399A (‘long residence provisions’). The Court of Appeal  then  decided to refer to those provisions collectively as ‘the safety nets’.  It was also noted at paragraph  23 of their judgment that Section 117C(2) to (7) of the 2002 Act deals with foreign criminals who resist deportation on Article 8 grounds. The general scheme is similar to that set out in the 2014 rules. Medium offenders can escape deportation if they come within the safety net of Exception 1 (long residence provisions) or Exception 2 (parent/partner provisions).  The Court stated that serious offenders cannot make use of those safety nets, but section 117C(6) provides that they can resist deportation if “there are very compelling circumstances, over and above those described in Exceptions 1 and 2”.

The Court of Appeal also went on to  consider the following in their judgment:

  • To correct what they stated was an “ obvious drafting error” in the interpretation of Section 117C(3) of the 2002 Act. It was considered  that the fall back protection of the kind stated in section 117C(6) avails both (a) serious offenders and (b) medium offenders who fall outside Exceptions 1 and 2. The Court of Appeal concluded that on a proper construction of section 117C(3), it provides that for medium offenders, “the public interest requires C’s deportation unless Exception 1 or Exception 2 applies or unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2”.

  • the meaning of , “very compelling circumstances, over and above those described in Exceptions 1 and 2”, set out in Section 117C(6) of the 2002 Act.

  • the role of the Strasbourg jurisprudence.

Relevant Statutory Regime and the Immigration Rules considered

  • Sections 32 and 33 of the UK Border Act 2007;

  • Nationality, Immigration and Asylum Act 2002 ,Sections 117A to 117D

  • The Immigration Rule, Paragraphs 398, 399 and 399A

Relevant Caselaw Considered:

Lacuna Drafting Error Corrected by Court of Appeal: Section 117C(3) of the 2002 Act:

Part 5A, Section 117C of the 2002 Act  provides:

“117C Article 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where—

(a) C has been lawfully resident in the United Kingdom for most of C’s life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted”.

Paragraphs 398 of the Immigration Rules states:

“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”.

The Court of Appeal noted that the  curious feature of section 117C(3) is that it does not make any provision for medium offenders who fall outside Exceptions 1 and 2. They considered that  they would have expected that sub-section to say that they too can escape deportation if “there are very compelling circumstances, over and above Exceptions 1 and 2”. It was said by the Court that it  would be bizarre in the extreme if the statute gave this right to serious offenders, but not to medium offenders. The Court observed furthermore, the new rule 398 (which came into force on the same day as section 117C) proceeds on the basis that medium offenders do have this right.

They considered that something had obviously gone amiss with the drafting of section 117C(3). The Court referred to the case Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, HL,  where  Lord Nicholls  explained the circumstances in which the courts in interpreting statutes can correct obvious drafting errors. In  the Court of  Appeal’s view,  the lacuna in section 117C(3) is an obvious drafting error. Parliament must have intended medium offenders to have the same fall back protection as serious offenders. It was noted  that Mr Tam, representing the Secretary of State invited the Court of  Appeal  so to rule.

The Court said that the new Part 5A of the 2002 Act is framed in such a way as to provide a structured basis for application of and compliance with Article 8, rather than to disapply it. If section 117C barred medium offenders from asserting any Article 8 claim other than provided for in subsections (4) and (5), that would plainly be incompatible with Article 8 rights (either their own or Convention rights of individuals in their family) in some cases. Equally plainly, it was not Parliament’s intention in enacting Part 5A to disapply or require violation of Article 8 in any case. The Court  also placed reliance on section 3(1) of the Human Rights Act 1998. That provision requires courts to construe legislation in a way which is compatible with Convention rights, if it is possible to do so. It  was considered that it was possible to do so here.

In accordance with the guidance given by Lord Nicholls, the Court of Appeal stated that the words which need to be read into section 117C(3) so as properly to reflect Parliament’s true meaning are clear, namely the same words as appear in sub-section (6) and in paragraph  398 of the 2014 rules, which came into effect at the same time as part of an integrated and coherent code in primary legislation and the Immigration Rules for dealing with deportation cases.

The Court of Appeal therefore proceeded on the basis that fall back protection of the kind stated in section 117C(6) avails both (a) serious offenders and (b) medium offenders who fall outside Exceptions 1 and 2. On a proper construction of section 117C(3), it provides that for medium offenders “the public interest requires C’s deportation unless Exception 1 or Exception 2 applies or unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.”

Meaning of “very compelling circumstances, over and above those described in Exceptions 1 and 2” in Section 117C(6) of the 2002 Act:

The Court of Appeal went on next to consider the  question which arises concerning  the meaning of “very compelling circumstances, over and above those described in Exceptions 1 and 2”.  It was noted that the new paragraph  398 uses the same language as section 117C(6). It refers to “very compelling circumstances, over and above those described in paragraphs 399 and 399A. Paragraphs 399 and 399A of the 2014 rules refer to the same subject matter as Exceptions 1 and 2 in section 117C, but they do so in greater detail.

In the Court of Appeal’s view, the reasoning of the Court of Appeal in JZ (Zambia) applies to those provisions. The phrase used in section 117C(6), in paragraph 398 of the 2014 rules and which  the Court  held is to be read into section 117C(3) does not mean that a foreign criminal facing deportation is altogether disentitled from seeking to rely on matters falling within the scope of the circumstances described in Exceptions 1 and 2 when seeking to contend that “there are very compelling circumstances, over and above those described in Exceptions 1 and 2”. A foreign criminal is entitled to rely upon such matters, but he would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 (and in paragraphs 399 or 399A of the 2014 rules), or features falling outside the circumstances described in those Exceptions and those paragraphs, which made his claim based on Article 8 especially strong.

In the case of a serious offender who could point to circumstances in his own case which could be said to correspond to the circumstances described in Exceptions 1 and 2, but where he could only just succeed in such an argument, it would not be possible to describe his situation as involving very compelling circumstances, over and above those described in Exceptions 1 and 2. One might describe that as a bare case of the kind described in Exceptions 1 or 2. On the other hand, if he could point to factors identified in the descriptions of Exceptions 1 and 2 of an especially compelling kind in support of an Article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could in principle constitute “very compelling circumstances, over and above those described in Exceptions 1 and 2”, whether taken by themselves or in conjunction with other factors relevant to application of Article 8.

An interpretation of the relevant phrase to exclude this possibility would lead to violation of Article 8 in some cases, which plainly was not Parliament’s intention. In terms of relevance and weight for a proportionality analysis under Article 8, the factors singled out for description in Exceptions 1 and 2 will apply with greater or lesser force depending on the specific facts of a particular case.

In the case of a medium offender, if all he could advance in support of his Article 8 claim was a “near miss” case in which he fell short of bringing himself within either Exception 1 or Exception 2, it would not be possible to say that he had shown that there were “very compelling circumstances, over and above those described in Exceptions 1 and 2”. He would need to have a far stronger case than that by reference to the interests protected by Article 8 to bring himself within that fall back protection. But in,  principle there may be cases in which such an offender can say that features of his case of a kind described in Exceptions 1 and 2 have such great force for Article 8 purposes that they do constitute such very compelling circumstances, whether taken by themselves or in conjunction with other factors relevant to Article 8 but not falling within the factors described in Exceptions 1 and 2. The decision maker, be it the Secretary of State or a tribunal, must look at all the matters relied upon collectively, in order to determine whether they are sufficiently compelling to outweigh the high public interest in deportation.

The Court stated that although there is no ‘exceptionality’ requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient.

The Court of  Appeal stated that the best interests of children certainly carry great weight, as identified by Lord Kerr in HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25; [2013] 1 AC 338 .  Nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children. The desirability of children being with both parents is a commonplace of family life. That is not usually a sufficiently compelling circumstance to outweigh the high public interest in deporting foreign criminals. As Rafferty LJ observed in Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488 at [38]:”Neither the British nationality of the respondent’s children nor their likely separation from their father for a long time are exceptional circumstances which outweigh the public interest in his deportation. The Court of Appeal said in MF (Nigeria) that paragraphs 398 to 399A of the 2012 rules constituted a complete code. The same is true of the sections 117A-117D of the 2002 Act, read in conjunction with paras. 398 to 399A of the 2014 rules. The scheme of the Act and the rules together provide the following structure for deciding whether a foreign criminal can resist deportation on Article 8 grounds.

The Court considered that in relation to a medium offender, first see whether he falls within Exception 1 or Exception 2. If he does, then the Article 8 claim succeeds. If he does not, then the next stage is to consider whether there are “sufficiently compelling circumstances, over and above those described in Exceptions 1 and 2”.  If there are, then the Article 8 claim succeeds. If there are not, then the Article 8 claim fails. As was the case under the 2012 rules (as explained in MF (Nigeria)), there is no room for a general Article 8 evaluation outside the 2014 rules, read with sections 117A-117D of the 2002 Act.

In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are “very compelling circumstances, over and above those described in Exceptions 1 and 2” as is required under section 117C(6). It will then be necessary to look to see whether any of the factors falling within Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6).

The role of the Strasbourg jurisprudence:

The Court of Appeal went on to  consider  the role of the Strasbourg jurisprudence.  In particular,  they considered  how  one takes into account important decisions such as Üner v Netherlands (2007) 45 EHRR 14 and Maslov v Austria.  It was considered that the Strasbourg authorities have an important role to play. The answer is that the Secretary of State and the tribunals and courts will have regard to the Strasbourg jurisprudence when applying the tests set out in UK domestic legislation. For example, a tribunal may be considering whether it would be “unduly harsh” for a child to remain in England without the deportee; or it may be considering whether certain circumstances are sufficiently “compelling” to outweigh the high public interest in deportation of foreign criminals. Anyone applying these tests (as required by UK own rules and legislation) should heed the guidance contained in the Strasbourg authorities. The scheme of Part 5A of the 2002 Act and paragraphs  398-399A of the 2014 rules is to ensure compliance with the requirements of Article 8 through a structured approach, which is intended to ensure that proper weight is given to the public interest in deportation whilst also having regard to other relevant factors as identified in the Strasbourg and domestic caselaw. The new regime is not intended to produce violations of Article 8.

The Court stated that even then it must be borne in mind that assessments under Article 8 may not lead to identical results in every ECHR contracting state. To the degree allowed under the margin of appreciation and bearing in mind that the ECHR is intended to reflect a fair balance between individual rights and the interests of the general community, an individual state is entitled to assess the public interest which may be in issue when it comes to deportation of foreign criminals and to decide what weight to attach to it in the particular circumstances of its society. Different states may make different assessments of what weight should be attached to the public interest in deportation of foreign offenders. In England and Wales, the weight to be attached to the public interest in deportation of foreign offenders has been underlined by successive specific legislative interventions: first by enactment of the 2007 Act, then by promulgation of the code in the 2012 rules and now by the introduction of further primary legislation in the form of Part 5A of the 2002 Act and the new code in the 2014 rules. Statute requires that in carrying out Article 8 assessments in relation to foreign criminals the decision-maker must recognise that the deportation of foreign criminals is “conducive to the public good” (per section 32(4) of the 2007 Act) and “in the public interest” (per section 117C(1) of the 2014 Act).

The relevant appeals:

This Court of Appeal dealt with a group of four appeals, each of which raised the question whether a foreign criminal is entitled to resist deportation by reliance upon Article 8 of the European Convention on Human Rights. In NA (Pakistan) and in WM (Afghanistan) it was relevant to examine that question under the legislative regime applicable up to 27 July 2014. In NA (Pakistan) it was  also relevant to examine that question under the new legislative regime which came into effect on 28 July 2014. In KJ (Angola) and MY (Kenya) it was  the new legislative regime which was relevant.

The Court of Appeal dismissed the appeals in the cases of NA (Pakistan) and MY (Kenya). The Court however allowed the appeals in the cases of KJ (Angola) and WM (Afghanistan) and  remitted these  cases to the Upper Tribunal for fresh determinations in light of the guidance given in the judgment.

NA (Pakistan):

Given the assessment by the Upper Tribunal, and in light of the weakness of NA’s case when measured by the yardstick of Exception 1 and Exception 2 and the relative lack of weight in the other factors relied on by him (such as his relationship with his parents), it was in the Court of Appeal’s view clear that even on a proper approach to application of section 117C(6),  NA could not show that there are “very compelling circumstances” indicating that he ought not to be deported. This  was so after giving full weight to the guidance of the ECtHR in Maslov v Austria.

Despite his long residence in the UK, NA was a mature man who committed a particularly serious crime in circumstances in which the public interest in his removal has been made especially clear by the 2014 rules and section 117C. Accordingly, it was  clear that there are “very serious reasons” which justify his expulsion, in accordance with the guidance given in Maslov . The Court of  Appeal  therefore dismissed  the appeal in NA’s case.

KJ (Angola):

In the Court of Appel’s  judgment, the criticism of the Upper Tribunal judgment was  made out. The Tribunal erred in law by failing to direct itself properly regarding the stringency of the test to be applied when considering whether a difference in availability of medical treatment as between Angola and the UK could play any significant role in bolstering KJ’s claim to have the deportation order set aside, let alone whether it could make any significant contribution to establishing that there were other “very compelling circumstances” for the purposes of section 117C(6).

The Court of Appeal therefore allowed the appeal on this ground and remitted it to the Upper Tribunal for the decision to be re-made. The Court made it clear that this was  not a case in which it can be said that KJ’s appeal against deportation must necessarily succeed or must necessarily fail.

WM (Afghanistan):

Reasoning showed that the FTT fell into error by conducting its own free-standing proportionality analysis, without approaching the question of proportionality through the lens of paragraphs 398 to 399A of the 2012 rules as it should have done. It failed to ask itself, as it should have done, whether there were very compelling circumstances which required the strong presumption in favour of deportation of a foreign criminal such as WM to be overridden. The FTT thus failed to give proper weight to the public interest in deportation of WM.

The appeal in WM’s case was therefore allowed and was  remitted to the Upper Tribunal for a fresh decision to be made. In making a fresh decision, the Upper Tribunal would  apply the 2014 rules and sections 117A-117D of the 2002 Act.

MY (Kenya):

Looking at all the circumstances of the case, the Upper Tribunal found that the complex physical and emotional needs of MY’s family and their interdependence upon him amounted to such a compelling (i.e. very compelling) circumstance. The Tribunal reached this conclusion while also having regard to other relevant factors, including that MY’s father is a British citizen, all other members of the family are lawfully present in the UK with indefinite leave to remain and there could be no question of them relocating to Kenya and the absence of any real risk of re-offending; the manifestations by MY of acceptance of his social responsibilities; the level of seriousness of the offending (MY was right at the bottom end of the persons qualifying as foreign criminals) ; and the fact that MY was not a burden on the state, but rather by his dedication to care of other family members was likely to be relieving the state of what otherwise might be an expensive financial burden.

In the Court of  Appeal’s judgment, there was  no error of law by the Upper Tribunal in MY’s case and the appeal should be dismissed. The Tribunal directed itself correctly as to the legal test to be applied. It properly had regard to relevant considerations. In the unusually pressing circumstances of the case on its particular facts, by reference to the interests of MY and members of his family protected under Article 8, it was open to the Tribunal to conclude that “very compelling circumstances” existed over and above those described in Exceptions 1 and 2 which would make his deportation unduly harsh and hence disproportionate. It was a decision which was lawfully open to the Tribunal to make, even though another Tribunal considering the evidence might have come to a different conclusion.

Conclusion:

The Court of Appeal in NA (Pakistan), reviewed existing caselaw  and re -iterated once again the  applicable principles  in relation to deportation appeals and also  clarified  matters further as set out above. It was  however  observed on behalf of the Secretary of State and accepted by the Court of Appeal, by reference to the   four appeals before them,  that Tribunal Judges are sometimes losing sight of the relevant principles.  Despite repeated clarifications   on the correct approach to deportation appeals by the Court of Appeal  over the  years and recently having regard  to NA (Pakistan), due to the complex nature of  deportation appeals, it should  come as no surprise when (and not if), the Court of Appeal  undertakes yet a further  review on the issues in the context of some other deportation appeal.

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