Court of Appeal’s Guidance on the Correct Approach to Revocation of Deportation Orders in Appeal Cases
alicemuzira
Without some cursory regard to the raft of cases emanating from the Court of Appeal in the last few months, the new decision of the Court of Appeal in IT (Jamaica) v The Secretary of State for the Home Department [2016] EWCA Civ 932 would be almost a little too difficult to follow. The larger part of this year has seen the Court of Appeal giving persistent and reiterated guidance on the correct approach to take in deportation appeals( in regards to cases such as, CT (Vietnam), LW (Jamaica, BL (Jamaica), JZ (Zambia), Suckoo). In the last three months, the Court of Appeal turned its focus on considerations regarding the interplay between Sections 117A to 117D of the 2002 Act and paragraphs 399 and 399A of the Immigration Rules( in reference to cases such as Kamara , Rhuppiah, NA (Pakistan), MM (Uganda). We now have the case of IT (Jamaica), seeing the Court of Appeal considering paragraphs 390 to 392 of the Immigration Rules, providing guidance on the approach to take in revocation of deportation order cases, drawing the threads together as regards their earlier judgements and clearly at pains in seeking to remain consistent and faithful to those decisions.
In summary, in the Court of Appeal’s judgment, the undue harshness standard in section 117C of the Nationality, Immigration and Asylum Act 2002 Act means that the deportee must demonstrate that there are very compelling reasons for revoking the deportation order before it has run its course. Section 117C is to be read in the context of the Immigration Rules which make that clear.
What are the relevant statutory provisions and Rules?
Section 5(2) of the Immigration Act 1971 provides that a deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen.
Section 32(5) of the UK Borders Act 2007 provides that Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). Section 32(6) states that the Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—
she thinks that an exception under section 33 applies,
the application for revocation is made while the foreign criminal is outside the United Kingdom, or
section 34(4) applies.
The relevant provisions of the Immigration Rules in relation to revocation of deportation orders are contained in paragraphs 390 to 392.
Paragraph 390A refers to paragraphs 398 to 399A of the Immigration Rules.
Paragraph A398 of the Immigration Rules provides that paragraphs 398 to 399A apply where:
a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;
a foreign criminal applies for a deportation order made against him to be revoked.
Paragraph 390 applies to all applications to revoke a deportation order, whether made by a foreign criminal or not and whether or not the applicant is in the UK. Its provisions are at a very general level.
Pre-deportation revocation cases fall under paragraph 390A and post-deportation revocation cases fall under paragraph 391 of the Rules.
In relation to paragraph 391A, arguably its effect is to exclude also cases covered by paragraph 390A – so that in practice it means “in cases other than those of foreign criminals”( as per paragraph 26 of Secretary of State for the Home Department v ZP (India) [2015] EWCA Civ 1197).
In relation to paragraph 392, this simply clarifies the effect of the revocation of a deportation order.
The Immigration Rules therefore deal with applications for revocation of a deportation order. In so doing they make provision for the application of Article 8 of ECHR. This will arise if a foreign criminal contends that the maintenance of the deportation order will constitute a disproportionate interference with his right to respect for his family or private life.
The Issue in IT(Jamaica):
IT(Jamaica) raises the question of the weight to be given to the public interest when a deportee applies for revocation of a deportation order made against him. On it depends the further question of what the deportee must show to displace that public interest and in turn what he must demonstrate to a tribunal to succeed on any appeal from the Secretary of State’s refusal to revoke that order.
Heavy reliance placed upon ZP (India):
The Secretary of State argued that the FTT which allowed IT’s appeal should have applied the approach recently identified by the Court of Appeal in ZP (India) v Secretary of State for the Home Department[2016] 4 WLR 35, where the leading judgment given by Underhill LJ. ZP (India) concerned a post-deportation revocation application made before 28 July 2014, when section 117C of the 2002 Act came into force. This appeal was the first time that the Court of Appeal had considered the role of the public interest in appeals from determinations of the tribunals after that date.
The Secretary of State submitted that the weight to be given to the public interest when considering revocation of a deportation order could not in practice (or logically) be any less than when the original deportation order was made as per Underhill LJ in ZP (India ) at paragraph 15 of his judgement: if it has been established when the original order was made that none of the exceptions specified in section 33 applies, and accordingly that the public interest requires the making of a deportation order, that does not cease to be the case the moment the foreign criminal leaves the country: it will, for essentially the same reasons, be contrary to the public interest for them to come back. No doubt it may be right to put a limit on the period for which the public interest requires their continued exclusion, but that is another matter and is addressed in the Immigration Rules.
Underhill LJ further held at paragraph 24 of his judgment that in substance the approach in pre-deportation revocation cases under paragraph 390A and post-deportation revocation cases under paragraph 391 is broadly the same. Decision-takers will have to conduct an assessment of the proportionality of maintaining the order in place for the prescribed period, balancing the public interest in continuing it against the interference with the applicant’s private and family life; but in striking that balance they should take as a starting point the Secretary of State’s assessment of the public interest reflected in the prescribed periods and should only order revocation after a lesser period if there are compelling reasons to do so. Underhill LJ concluded in paragraphs 24 and again at 51 that in post-deportation revocation cases very compelling reasons for revocation were required. It is only where the tribunal is persuaded that, exceptionally, there are very compelling reasons which outweigh the public interest in the order continuing for the full prescribed term that such revocation may be allowed.
It was also submitted on behalf of the Secretary of State in IT(Jamaica) that while circumstances satisfying Exceptions 1 and 2 in section 117C of the Nationality, Immigration and Asylum Act 2002 can constitute very compelling circumstances those circumstances must meet the high threshold in paragraph 51 of the judgment of Underhill LJ in ZP (India).
On behalf of IT, it was submitted, inter alia, that there is no need in the case of revocation of a deportation order to show that there were very compelling reasons for it to be revoked: the concept of very compelling reasons is derived from the decision of the court in MF Nigeria, and not section 117C(5), which lays down a different test that the continuation of the deportation order is “unduly harsh”. It was therefore sought to distinguish ZP (India).
Conclusions of the Court inIT(Jamaica):
The Court of Appeal in IT(Jamaica) considered and concluded as follows:
The relevant question is whether the continuation of the deportation order is unduly harsh, and whether very compelling reasons have to be shown to establish undue harshness.
The Court in IT(Jamaica) reached the same conclusion as Underhill LJ( ZP (India) did in relation to the provisions under which he considered that very compelling reasons have to be shown.
As held in MM (Uganda), to answer that question, the public interest must be brought into account. Therefore, the court must know what that public interest is in any particular circumstance in order to give appropriate weight to it.
The function of section 117C is to set out the weight to be given to the public interest to be taken into account in the proportionality exercise to be carried out under Article 8 of the Convention in the case of a foreign criminal. Section 117C(1) states that the deportation of foreign criminals is in the public interest. In this context, the word “deportation” is being used to convey not just the act of removing someone from the jurisdiction but also the maintaining of the banishment for a given period of time: if this were not so, section 117C(1) would achieve little.
To understand the length of the deportation in any particular case, the tribunal hearing the case has to examine the Immigration Rules. From that the tribunal is bound to observe that those Rules proceed on the basis that, in the absence of undue harshness, the appropriate period of absence from this jurisdiction in a case such as IT is ten years (paragraph 391 of the Immigration Rules).
It is clear from section 117C (2) that the nature of the offending is also to be taken into account. The tribunal will have access to the circumstances of the offence and to the length of the sentence.
Subsection (1) and (2) of section 117C together make manifest the strength of the public interest. In order to displace that public interest, the harshness brought about by the continuation of the deportation order must be undue, i.e. it must be sufficient to outweigh that strong public interest. Inevitably, therefore, there will have to be very compelling reasons. That conclusion is consistent with the MF(Nigeria) and ZP(India) even though those authorities are based on different Immigration Rules and statutory provisions.
The undue harshness test in section 117C(5) has been inserted by primary legislation and it was not in force at the time of the Immigration Rules considered in ZP( India). Underhill LJ there held that paragraphs 398 and 399 of the Rules applying before the commencement date of section 117C meant that in a post-deportation revocation application compelling reasons had to be shown. The Court in IT(Jamaica) reached the same conclusion in relation to a post-deportation revocation application after the commencement of section 117C to D. The same conclusion as Underhill LJ reached in relation to a post-deportation revocation application made before the date on which section 117C(5) came into force must similarly apply in relation to the same application made after that date, namely that very compelling reasons must be shown to displace the public interest in deportation.
The commencement of section 117A to D of the 2002 Act does not mean that a different and lower weight is to be given to the public interest in applications to revoke a deportation order following deportation than in other deportation situations. The result is that the same standard must apply in this case as in a pre-section 117A to D case like ZP (India). MM (Uganda) does not mandate a different conclusion.
As Underhill LJ held in ZP (India), the starting point must be that the assessment of what was in the public interest at the date on which the deportation order was made cannot be of any less weight at the later stage when revocation is sought. This means that objections to the making of a deportation order which were unsuccessful at the time it was made are unlikely to be successful grounds for obtaining the revocation of a deportation order after removal from the jurisdiction.
Conclusion:
So, there is to be no different and lower weight to be given to the public interest in applications to revoke a deportation order. The new judgement certainly does not seem to make it any easier for deportees.
Hopefully, with all this new guidance coming from the Court of Appeal as regards deportation appeal cases, FTT Judges will remain on top of the relevant applicable caselaw, but then as observed in Koori & Ors v The Secretary of State for the Home Department [2016] EWCA Civ 552, “tribunals are entitled to expect to be referred at the hearing to the relevant law and to hear submissions on it”.
