In The Secretary of State for the Home Department v SU [2017] EWCA Civ 1069 (20 July 2017), the Court of Appeal clarified from the outset that they had been informed that the appeal before them was  the first occasion on which they were  concerned with the correct approach to the revocation of a deportation order where it had been implemented but the deportee had, in breach of the deportation order, returned to the UK and established a private and family life following  the period of unlawful presence.

 

The main issues in SU were as follows:

 

• The failure of the FTT Judge to consider and apply the applicable statutory provisions or Rules;

• The failure of the FTT Judge to properly apply the correct approach to the assessment of delay.

Background in summary

 

On 5 February 2014, the Secretary of State refused to revoke a deportation order made against  Mr Ulllah  on 17 February 1998, following his conviction of September 1996  for conspiracy to defraud for which he was sentenced to 42 months’ imprisonment. Mr Ullah appealed against the order but by August 1998 his appeal rights had been exhausted and, in October 1998, he was deported to Pakistan.

 

Mr Ullah illegally re-entered the UK in 2000. He subsequently married JU who was a British citizen. In June 2003, Mr Ullah applied for leave to remain as JU’s spouse. No progress was made with the original application for leave to remain as JU’s spouse until December 2013, when the Secretary of State wrote to Mr Ullah requesting information, to which he  replied. The  Secretary of State determined that it was first necessary to decide whether to revoke the extant deportation order made in 1998. In February 2014, she determined not to revoke it, setting out her reasons in a letter dated 5 February 2014.

 

Mr Ullah’s appeal against the refusal was allowed by the First-tier Tribunal (FTT) on 10 September 2014 and the Upper Tribunal dismissed the Secretary of State’s appeal on 8 December 2014. The Secretary of State appealed to the Court of Appeal  with permission granted by that Court. When the Court of Appeal heard the appeal, Mr Ullah’s application for leave to remain as JU’s spouse was yet to be determined, pending the outcome of the proceedings.

 

The Statutory Provisions and Immigration Rule the FTT Judge failed to consider:

 

In SU, the Secretary of State  argued among other issues that the FTT Judge,  had failed to identify and apply paragraph 399D of the Rules, and had wrongly taken account of and applied paragraphs 390A and 398-399A of the Rules.  The FFT Judge was also considered to have  failed to have regard to and apply section 117(B)(4) of the 2002 Act.

 

Section 117B(4) of Nationality, Immigration and Asylum Act 2002  provides:

 

“(4) Little weight should be given to-

(a) a private life, or

(b) a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United Kingdom unlawfully.”

Paragraph 399D of the Immigration Rules was introduced with effect from 28 July 2014 and provides:

“399D. Where a foreign criminal has been deported and enters the United Kingdom in breach of a deportation order enforcement of the deportation order is in the public interest and will be implemented unless there are very exceptional circumstances.”

 

Relevant caselaw considered on revocation of deportation orders:

 

ZP (India) v Secretary of State for the Home Department [2015] EWCA Civ 1197; [2016] 4 WLR 35,  was distinguished and the following was observed in SU:

 

• Underhill LJ, with whom Christopher Clarke LJ and Sir Timothy Lloyd agreed, held in ZP( India) that paragraph 390 of the Immigration Rules applied to all applications, albeit that its provisions are “at a very general level”.

• The Court in ZP( India) held that paragraph 390A of the Immigration Rules applied only in a case where the applicant had not yet been deported.

• The Court in ZP( India) held that paragraph 391 applies to applications to revoke a deportation order by a person who has been deported following conviction for a criminal offence.

 

Relevant caselaw considered on effect of delay:

 

In allowing Mr Ullah’s appeal, the FTT Judge was noted to have stated:

 

“I find that a time-lag of 10 years is capable of being an exceptional circumstance. It sets no precedents (or at least I hope not) but it permits or even requires me to consider the position outside the rules…………… I therefore find that by reason of the peculiar delay in this case which is not attributable in any way to the appellant the decision to refuse to revoke the deportation order in this particular case would be disproportionate to the legitimate interest of immigration control and protection of the public against criminal behaviour. I bear in mind that the conviction related to an offence committed almost 20 years ago and that there has been no suggestion of any criminal behaviour on the part of the appellant since his return to the UK even though as I have found his behaviour towards his wife, his community and towards UK immigration control is highly tainted by dishonesty.”

 

The following cases dealing with delay were considered in SU:

 

• EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] 1 AC 1159 . In EB (Kosovo), Lord Bingham at [14]-[16] explained the circumstances in which account could be taken of delay in dealing with an application. First, “the applicant may during the period of delay develop closer personal and social ties and establish deeper roots in the community than he could have shown earlier”. If so, the applicant’s article 8 claim “will necessarily be strengthened”. Secondly, any relationship entered into by a person while they are unlawfully in the UK is likely, initially, to be tentative, given that he or she may be removed at any time. This is particularly so, if the other party knows of that person’s status in the UK. Delay may cause this sense of impermanence to diminish. Thirdly, delay may be relevant “in reducing the weight otherwise to be accorded to the requirement of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes”. If established, such delay “may have a bearing on the proportionality of removal”. It is then capable of being a relevant factor and it is for the tribunal to decide the weight to be given to it.

• WB (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 215),

• MN-T (Colombia) v Secretary of State for the Home Department [2016] EWCA Civ 893, Jackson LJ added comments, not forming part of the reasoning in his judgment:“41. I should perhaps add this in relation to delay. As a matter of policy now enshrined in statute, the deportation of foreign criminals is in the public interest. The reasons why this is so are obvious. They include three important reasons: 1.Once deported the criminal will cease offending in the United Kingdom. 2.The existence of the policy to deport foreign criminals deters other foreigners in the United Kingdom from offending. 3.The deportation of such persons expresses society’s revulsion at their conduct”   and paragraph  ” 42.If the Secretary of State delays deportation for many years, that lessens the weight of these considerations. As to (1), if during a lengthy period the criminal becomes rehabilitated and shows himself to have become a law-abiding citizen, he poses less of a risk or threat to the public. As to (2), the deterrent effect of the policy is weakened if the Secretary of State does not act promptly. Indeed lengthy delays, as here, may, in conjunction with other factors, prevent deportation at all. As to (3), it hardly expresses society’s revulsion at the criminality of the offender’s conduct if the Secretary of State delays for many years before proceeding to deport”.

 

The Court of Appeal’s considerations and conclusions in SU:

 

• The Court of Appeal noted that the unusual feature of the present case that Mr Ullah had been deported but subsequently re-entered the country illegally, was expressly addressed in paragraph 399D of the Immigration Rules.

• It was further noted that the fact that Mr Ullah subsequently re-entered the country illegally and so made his application for revocation of the deportation order from within the UK did not provide grounds for applying paragraph 390A to it. Any doubt on this question was resolved by the introduction of paragraph 399D.

• The Court of Appeal observed that it appeared that the FTT Judge was not aware of Paragraph 399D or that he was referred to it. The Court considered that paragraph 399D was clearly directly in point to Mr Ullah’s case and encapsulated the public interest in ensuring that a deportation order is not only implemented but fully effective. It is not effective if the deportee unlawfully returns to the UK while the order remains in force.

• Paragraphs 390A and 398 were held by the Court of Appeal in ZP(India), to apply to a person against whom a deportation order has been made but before the deportation has occurred. They were not therefore applicable in the present case.

• The Court of Appeal observed that while under paragraph 391 of the Rules there is a presumption that continuation of the deportation order “will be the proper course” if less than 10 years have elapsed, there is no presumption either way after the 10 years have elapsed. Paragraph 391 simply requires each case to be considered on its merits, taking account of applicable paragraphs of the Rules, including most obviously paragraph 390, and the applicable statutory provisions. The effect of the expiry of 10 years is only that the previous presumption in favour of maintaining the order falls away. The Upper Tribunal was wrong to suggest that an onus lay on the Secretary of State to establish that maintenance of the order will be the proper course. In any event, paragraph 391 was not, in the Court’s view, applicable in a case to which paragraph 399D applies.

• The Court of Appeal stated that the difference in the language of paragraphs 398 and 399D, suggesting a more stringent requirement under paragraph 399D, reflects a real difference in the circumstances covered by each paragraph. Paragraph 398 addresses the question whether a deportation order should be made, or an existing order maintained, against a person who has yet to be deported, whereas paragraph 399D addresses the very different case of a person who has been deported and then re-enters illegally and in breach of the order. In the latter case, any Article 8 claim that was raised by the deportee before his original deportation will, ex hypothesi, have been decided against him. The Court of Appeal considered that it was readily understandable that in the cases covered by paragraph 399D the Secretary of State should have formed the view that there is a particularly strong public interest in maintaining the integrity of the deportation system as it applies to foreign criminals.

• The Court of Appeal concluded that there was a clear failure to have regard to the applicable paragraphs of the Rules. The application by the FTT Judge of the wrong paragraphs of the Rules was a material error of law, and it could not be said that the FTT’s decision would inevitably have been the same if the judge had directed himself to the correct paragraphs.

• The Court of Appeal noted that the FTT Judge did not cite section 117B(4) nor say that he had regard to the section as regards the weight to be attached to Mr Ullah’s private and family life in the UK since his unlawful return. The Court’s view was that in considering whether there are exceptional circumstances, or very exceptional circumstances as required by paragraph 399D, it was necessary to know the weight to be attached to each side of the balance. It was essential to appreciate and apply the statutory requirement to apply “little weight” to Mr Ullah’s private and family life developed while unlawfully present in the UK. The FTT neither referred to nor applied this requirement and it was pure speculation to consider what its decision might have been, had it done so.

• The Court of Appeal noted the submissions made on behalf of the Secretary of State, ie the failure of the FTT Judge to assess properly the delay of about 10 years on the part of the Home Office in dealing with Mr Ullah’s application for leave to remain made in 2003, when throughout the entirety of that period his presence in the UK was unlawful. Although the FTT referred to the approach to delay laid down in EB (Kosovo), it was submitted that the FTT failed to apply it.

• The Court of Appeal decided that in the present case, it was of particular importance in weighing the effect of delay to have regard to the fact that Mr Ullah had been deported and had illegally entered the UK in breach of the deportation order. The appellant in EB (Kosovo) was in a very different position, being an asylum seeker.

• In the Court’s view, the submission that the FTT failed to weigh delay in accordance with the principles in EB (Kosovo) was well founded, but it formed part of the larger picture of a failure to carry out the balancing exercise in accordance with the applicable regime.

• As regards the reference to the case of MN-T (Colombia) v Secretary of State for the Home Department [2016] EWCA Civ 893, made on Mr Ullah’s behalf, the Court considered that the facts of MN-T were a long way from the facts in the present case.

• In the Court of Appeal’s judgment, the FTT Judge made significant errors of law in Mr Ullah’s case and the Upper Tribunal was wrong to hold that it had not done so. It did not address the failure of the FTT Judge to consider and apply the applicable statutory provisions or Rules or give consideration to whether the FTT Judge had properly applied the correct approach to the assessment of delay. Instead, it focused on paragraph 391 of the Rules, which was not the applicable paragraph as Mr Ullah was not applying for revocation from abroad, and had no regard to paragraph 399D.

• The Court of Appeal allowed the Secretary of State’s appeal and remitted the matter to the Upper Tribunal for reconsideration.