After Hesham Ali: Unrepresented Claimant With UK Resident Children Successfully Resists Deportation In Court Of Appeal

Following a long line of recent negative decisions in the Court of Appeal in cases such as The Secretary of State for the Home Department v AJ (Zimbabwe) [2016] EWCA Civ 1012,  the newly notified case of Quarey, R (on the application of) v The Secretary of State for the Home Department (Rev 1) [2017] EWCA Civ 47 is a much welcome  decision  in relation  to potential deportees  with children resident in the UK.

 

Summary Background:

 

Mr Quarey, a Jamaican national, was considered a “foreign criminal” within the meaning of the  United Kingdom Borders Act 2007. He had remained in  the UK without leave following  his entry in November  2001  on a visitor visa.

 

In 2004, he met his former partner Ms Pennant, and their child Nariah was born on 7 May 2005. He separated from Ms Pennant during 2005(in proceedings in the Court of Appeal, it was noted that the First Tier Tribunal attached  little weight to the matter of Mr Quarey’s relationship with Nariah, as  they had no corroborative evidence to indicate that there was  an active and subsisting relationship between her and her father).

 

Mr Quarey then formed a relationship with Ms Ramsay and they began living together in March 2006.  Ms Ramsay had another child with a different father, named Ashley Edwards, born in 2001. In addition, Ms Ramsay had the care of her nephew, Javanie Morris, the son of her deceased sister. Javanie was born in 2004. On 27 June 2008, Ms Ramsay gave birth to  Mr Quarey’s  daughter, Shaniqua(It was not in issue before the  First Tier Tribunal  that Mr Quarey treated all three children as his own and was  an active parent to them).

 

Ms Ramsay was herself of Jamaican nationality. She came to the UK as a visitor in February 2000 and remained here after the expiry of her six months visitor’s visa. She attempted, but failed, to get an extension of leave as a student. In 2007, Ms Ramsay applied for leave to remain on the basis of seven years’ residence of her daughter Ashley. Ms Ramsay, Ashley and Javanie were all given discretionary leave to remain. Ashley became a British citizen in 2012.

 

Offending Background:

 

Mr Quarey was convicted of possessing cocaine and heroin on 2 November 2011. He had in his possession “no less than 65 wraps of Class A drugs” but was not prosecuted for possession with intent to supply. He received modest fines.

 

He was arrested on 26 October 2012 in Camden High Street. He had 36 wraps of heroin and 27 wraps of crack cocaine. He acknowledged that he had been dealing in drugs “for about a year”.  He was sentenced on the basis that he was a street dealer in drugs. On 12 February 2013, he was sentenced to 36 months’ imprisonment on each count concurrent.

 

The Secretary of State’s reasons for the decision to deport were set down in a decision letter of 29 October 2013. Mr Quarey became  liable to automatic deportation under the provisions of Section 32(5) of the UK Borders Act 2007.

 

What the First Tier Tribunal was noted to have considered in their decision:

 

The FTT had letters from the deputy head of the children’s primary school and from a representative from the Haringey Council Children and Young People’s Service, attesting to Mr Quarey’s  close relationship with the children and the negative impact of his removal to prison. Mr Quarey was serving his sentence at the time of the hearing before the FTT.

 

The FTT noted  the following in their decision:

 

  • Recited the facts and the submissions of the parties;

  • Began with the provisions of the UK Borders Act 2007. They noted that there was a requirement on the Secretary of State to make a deportation order under Section 32(5), thus drawing attention to the statutory basis of the obligation, enshrining the authority of Parliament over this public policy;

  • Noted the provisions relating to deportation set out in Part 13 of the Immigration Rules, in the form then current;

  • Went on to consider the decision in MF (Nigeria) [2013] EWCA Civ 1192, [2014] 1 WLR 544;

  • Went on to direct themselves as to the importance of the rights of the child, citing Section 55 of the Borders, Citizenship and Immigration Act 2009, considering ZH (Tanzania) [2011] 2 AC 166 [2011] UKSC 4, and EB (Kosovo) v SSHD [2008] UKHL 41;

  • considered the letters from the school and social services, and they concluded that the letters added great weight to Mr Quarey’s case in terms of the best interests of the three children. The Tribunal reached the conclusion that his deportation would seriously jeopardise the welfare of the three children and in particular Javanie who had special needs. Despite the seriousness of Mr Quarey’s criminal behaviour and his adverse immigration record, it was considered that there were “exceptional circumstances” within the meaning of the Immigration Rules and that the impact on his family life in terms of the adverse effect on the three children outweighed the legitimate aims of the Secretary of State in this case and thus violated his Article 8 rights.

Following the Secretary of State’s application for permission, the Upper Tribunal considered that looking at the FTT’s determination in the round, they did not  accept that the FTT Panel erred in failing to take into account the fact that  very significant weight that must be attached to deporting foreign criminals who have been sentenced to a period of imprisonment in excess of twelve months and do not otherwise meet the requirements of the Immigration Rules. It was not accepted that it had been established that the FTT  Panel failed to take into account relevant matters when coming into its conclusions.

 

Basis of Challenge by the Secretary of State:

 

The Secretary of State advanced two grounds of appeal:

 

  • Ground 1: Whether the First-tier Tribunal erred in law in failing to have any regard to the statutory source of the policy that foreign criminals such as Mr Quarey should be deported and/or the great weight to be attached to that policy. It was submitted that Tribunals must, applying Court Appeal’s decision in SS (Nigeria) v SSHD [2013] EWCA Civ 550, [2014] 1 WLR 998, when assessing whether deportation is proportionate under Article 8 ECHR, have regard to the nature and source of the State’s policy that is being pursued.

  • Ground 2: Whether the FTT’s decision failed to consider the public interest element of the proportionality balancing exercise properly, in accordance with criteria set down on many occasions by the Court of Appeal. The FTT’s analysis of whether there were “exceptional circumstances” justifying not deporting Mr Quarey failed to take into account the public interest in deterring other foreign nationals from committing serious crimes and also the need to express public revulsion at this sort of offending (dealing in Class A drugs) and building public confidence. These were key factors in the assessment of the public interest in deporting Mr Quarey.

Court of Appeal’s considerations and conclusions:

 

  • The Court of Appeal noted that since the decision of the Upper Tribunal in Mr Quarey’s case, the Supreme Court has considered the approach to deportation cases of this kind in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799. It was also observed that the Supreme Court reviewed earlier authority, including both MF (Nigeria) and SS (Nigeria).

  • The Supreme Court indicated that the correct approach is firstly to determine whether deportation would be contrary to ECHR Article 8, because the case falls within paragraph 398 (B) or (C) of the Immigration Rules and then one or more of the conditions set out in paragraph 399 or 399A. The Court of Appeal stated that having regard to the decision of the FTT in Mr Quarey’s case, that is precisely the step they took, concluding that he did not qualify.

  • The second stage is to consider the proportionality of deportation, with the public interest held properly in mind. It was noted that it was here the Secretary of State suggested the Tribunal fell into error in Mr Qaurey’s case.

  • The Court of Appeals confirmed that the correct approach was set down by Lord Reed,in Hesham Ali in terms with which the majority agreed, as follows: “38. The implication of the new rules is that rules 399 and 399A identify particular categories of case in which the Secretary of State accepts that the public interest in the deportation of the offender is outweighed under article 8 by countervailing factors. Cases not covered by those rules (that is to say, foreign offenders who have received sentences of at least four years, or who have received sentences of between 12 months and four years but whose private or family life does not meet the requirements of rules 399 and 399A) will be dealt with on the basis that great weight should generally be given to the public interest in the deportation of such offenders, but that it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in SS (Nigeria). The countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders, as assessed by Parliament and the Secretary of State. The Strasbourg jurisprudence indicates relevant factors to consider, and rules 399 and 399A provide an indication of the sorts of matters which the Secretary of State regards as very compelling. As explained at para 26 above, they can include factors bearing on the weight of the public interest in the deportation of the particular offender, such as his conduct since the offence was committed, as well as factors relating to his private or family life. Cases falling within the scope of section 32 of the 2007 Act in which the public interest in deportation is outweighed, other than those specified in the new rules themselves, are likely to be a very small minority (particularly in non-settled cases). They need not necessarily involve any circumstance which is exceptional in the sense of being extraordinary (as counsel for the Secretary of State accepted, consistently with Huang [2007] 2 AC 167, para 20), but they can be said to involve “exceptional circumstances” in the sense that they involve a departure from the general rule.”

  •  It was noted that the Court of Appeal in EJA v SSHD [2017] EWCA Civ 10, which followed shortly after the decision in Hesham Ali was handed down observed: “It is abundantly clear that Hesham Ali (sic) has not lowered the significant hurdle which must be overcome by a foreign criminal to succeed in demonstrating that it would be disproportionate to deport him from the United Kingdom.”As to the way the FTT in that case had approached their task, Burnett LJ concluded in EJA: “There is nothing in the determination which suggests that the FTT appreciated that to resist deportation it was necessary for EA to demonstrate “very compelling reasons”, having regard to the totality of the evidence, why he should not be deported. It is possible when reading many decisions to be confident that the right test has been applied from the way in which the issues are discussed and conclusions reached, even if it is not expressly articulated, but I do not consider that this is one of those decisions.”

  • The authorities stress the need for clear reasoning when considering the public interest in deportation, and a balancing exercise demonstrating that the decision-maker has fully weighed the consequences of a deportation against the very strong public interest in the deportation of foreign criminals. In the course of his short judgment in Hesham Ali, Lord Thomas CJ said: “82. I agree with the judgment of Lord Reed and in particular the matters he sets out at paras 37-38, 46 and 50. I add three paragraphs of my own simply to emphasise the importance of the structure of judgments of the First-tier Tribunal in decisions where article 8 is engaged. Judges should, after making their factual determinations, set out in clear and succinct terms their reasoning for the conclusion arrived at through balancing the necessary considerations in the light of the matters set out by Lord Reed at paras 37-38, 46 and 50. It should generally not be necessary to refer to any further authority in cases involving the deportation of foreign offenders. 83. One way of structuring such a judgment would be to follow what has become known as the “balance sheet” approach. After the judge has found the facts, the judge would set out each of the “pros” and “cons” in what has been described as a “balance sheet” and then set out reasoned conclusions as to whether the countervailing factors outweigh the importance attached to the public interest in the deportation of foreign offenders. 84. The use of a “balance sheet” approach has its origins in Family Division cases (see paras 36 and 74 of the decision of the Court of Appeal In re B-S (Children) (Adoption Order: Leave to Oppose) [2014] 1 WLR 563). It was applied by the Divisional Court in Polish Judicial Authority v Celinski [2016] 1 WLR 551 to extradition cases where a similar balancing exercise has to be undertaken when article 8 is engaged – see paras 15-17. Experience in extradition cases has since shown that the use of the balance sheet approach has greatly assisted in the clarity of the decisions at first instance and the work of appellate courts.”

  • A structured judgment comprising a “balance sheet” serves as a discipline on decision-making, ensuring that the balancing exercise is properly conducted and is transparent to the reader.

  • Neither the expression of their judgment by the FTT nor the review by an appellate court must be permitted to become a mere “tick-box” exercise. As Elias LJ observed in AM v SSHD [2012] EWCA Civ 1634, the decision of a tribunal is not to be flawed because when giving their reasons, the tribunal fails to repeat “mantra fashion” the separate identified ingredients of the public interest in deporting foreign criminals, or for that matter, fail to recite expressly the statutory origin of the policy of deportation, and that the statutory origin means that the policy is that of Parliament, not “merely” that of the Secretary of State. Nor is there an obligation on a Tribunal to recite all of the key passages from authority.

  • The Court in Quarey noted that it appeared to them that the Secretary of State would have been satisfied with nothing less than such an anxious parade of learning. The Court considered that would in the end be an unhelpful approach. The matter is one of substance, not appearance.

  • The Court in Quarey reiterated that the approach has now been clearly set out by Lord Thomas Hasham Ali, but also sought to add as follows: it will be wise for a tribunal, in a suitable case, to set out in their balancing exercise the degree of weight they ascribe to the various factors which arise, on the evidence, both for and against deportation. The decision must be transparent and clearly understood.

  • The Court of Appeal considered that FTT in the consideration of Mr Quarey’s appeal were alive to the proper considerations. They referred directly to the statutory basis of the obligation on the Secretary of State to deport. They could be taken to have understood that the statute, and thus the obligation, carry the authority of Parliament. They cited the critical passages from MF (Nigeria) , which spell out the point that such a one as Mr Quarey, will only succeed in avoiding deportation “exceptionally”, meaning where there exist “very compelling reasons”. The FTT here also had well in mind the terms of the relevant decision by the Secretary of State. They had a clear view of the facts and the family circumstances. In considering the nature of the public interest in deportation as it affected this case, they made clear that the low risk of future offending was not the only matter of public interest, noting the passage from Judge LJ in N (Kenya) v SSHD [2004] EWCA Civ 1094 , and emphasising the need for deterrence of others. On that basis they reached their conclusion.

  • In the Court of Appeal’s judgment, the FTT directed themselves to the proper considerations of law.

  • The FTT chose to demonstrate that it understood the relevant legal considerations by a careful and extended citation from the key paragraphs of the relevant authorities, rather than by seeking to summarise them in their own words, or by setting then out again when applying those considerations to the facts as found. Reading the judgment of the FTT as a whole, the Court considered it to be reasonably clear that those were the considerations applied during the carrying out of the balancing exercise called for by the Article 8 appeal in this case. The Upper Tribunal was therefore correct to conclude that the FTT’s decision was not vitiated by any error of law.

  • The Secretary of State’s appeal was dismissed.

Conclusion 

 

It therefore appears in summary, that so long as the Tribunal is alive to the  proper considerations  as per Quarey above and bear in mind the correct approach following the Supreme Court’s decision in Hesham Ali,  their decisions should  not be  readily capable of successful challenge  by  either party.  Having regard to the complex nature of deportation appeals,  it remains  to be seen  how long it will take  the First Tier Tribunal, in practice, to be in a  position  to uniformly and consistently   adopt the desired  correct approach in individual differing circumstances.

Whether or not First Tier  Tribunal Judges are made aware when the  individual decisions  they make  become subject of permission applications,  allowing an appeal in relation to someone subject to deportation  is simply not  enough and does not  do justice if  the Secretary of State can successfully  challenge  such a decision resulting in it being overturned for  failure to follow the correct legal approach.

 

2 thoughts on “After Hesham Ali: Unrepresented Claimant With UK Resident Children Successfully Resists Deportation In Court Of Appeal

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