Tag Archives: certification

Regulation 24AA and 29AA: Masalskas, R (on the application of) v Secretary of State for the Home Department (Regulations 24AA and 29AA EEA Regs) (IJR) [2015] UKUT 677

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The now reported  Upper Tribunal decision  regarding an  EEA Deportation  Regulation  24AA Certification  judicial review challenge in  which I applied for and obtained an interim order suspending removal of the EEA national  whilst at the same time  settling  the grounds  of claim, upon which  permission for judicial  review was granted leading to the Upper Tribunal hearing  the claim:

Masalskas, R (on the application of) v Secretary of State for the Home Department (Regulations 24AA and 29AA EEA Regs) (IJR) [2015] UKUT 677-:

“1. A decision to certify a person’s (P’s) removal under regulation 24AA of the European Economic Area Regulations 2006 operates as a temporary measure that can be applied only for so long as there is a statutory appeal which could be brought in time or which is pending.

2.Regulation 24AA is a discretionary measure whose implementation is currently subject to Home Office guidance entitled “Regulation 24AA Certification Guidance for European Economic Area deportation cases”.

3.EEA decisions to remove or deport taken against EEA nationals do not have automatic suspensive effect. No removal can take place, however, until an applicant has had a decision on any application made for an interim order to suspend removal.

4.As with the very similar power in section 94B to the Nationality, Immigration and Asylum Act 2002, when deciding whether to certify the removal of a person under regulation 24AA the avoidance of “serious or irreversible harm” is not the sole or overriding test. It is also necessary for the decision-maker to assess whether removal of P would be unlawful under section 6 Human Rights Act 1998 (HRA): see Kiarie, R (on the application of) and Another v Secretary of State for the Home Department [2015] EWCA Civ 1020 .

5.Whilst the assessment pursuant to section 6 HRA requires a proportionality assessment, it is one that is limited to the proportionality of removal for the period during which any appeal can be brought in time or is pending.

6.P’s right under regulation 29AA to be temporarily admitted to the UK in order to make submissions in person at the appeal:

(a) is qualified by regulation 29AA(3) (“except when P’s appearance may cause serious troubles to public policy or public security”); and

(b) does not extend to the pre-hearing stages of the appeal”.

My comments on the case, on 26 November 2015, can be  viewed  at :

https://ukimmigrationjusticewatch.com/2015/11/26/eea-deportation-regulation-24aa-certification-judgement-a-rubber-stamping-of-kiarie-byndloss-in-conjunction-with-section-94b/

 

Paragraph 399 of the Immigration Rules and Section 117 of the 2002 Act- Will the Upper Tribunal Judges Ever Be Agreed As to The Meaning of “Unduly Harsh”?

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Upper Tribunal Judges appear within the last few months   to  be publicly   struggling with the   proper meaning of  the phrase “unduly harsh”  found in  paragraph  399(a) of the  Immigration Rules.  The same words are  also found in Section 117C(5)  of the 2002 Act where the proposed deportee has a genuine and subsisting parental relationship with a qualifying child and the effect of his deportation on the child would be “unduly harsh.

It was noted in KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 543 (IAC) that there  is no tension in the fact that there is an area of overlap between Sections 117C(4)&(5)  of the 2002 Act and paragraph  399 of the Immigration Rules. When Section 117 was brought into effect, the vocabulary of paragraph  399 was different, speaking not of undue harshness but of reasonableness. The Rule was noted to have been  amended to reflect the vocabulary of the statute and so the assessment now carried out under the rules is compliant with the requirements of the statutory provision.

The Upper Tribunal in  MAB (para 399; “unduly harsh”) USA [2015] UKUT 435 (IAC) decided that the phrase “unduly harsh” in paragraph  399 of the Rules (and Section 117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned.  Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold.  The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the individual.

.The Upper Tribunal in KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 543 (IAC), differed  from the view taken by the Tribunal in MAB.

In KMO , the Upper Tribunal considered that the Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of paragraph  399 of the Immigration Rules, as that comprises an assessment of that person’s claim under article 8 of the ECHR, it is necessary to have regard, in making that assessment, to the matters to which the Tribunal must have regard as a consequence of the provisions of Section 117C. In particular, those include that the more serious the offence committed, the greater is the public interest in deportation of a foreign criminal. Therefore in the Upper Tribunal’s view,  the word “unduly” in the phrase “unduly harsh” requires consideration of whether, in the light of the seriousness of the offences committed by the foreign criminal and the public interest considerations that come into play, the impact on the child, children or partner of the foreign criminal being deported is inordinately or excessively harsh.

Although the Upper  Tribunal in   KMO did  depart  from the approach advocated by the Tribunal in MAB  they did adopt the other guidance offered by that decision.

Recently, having  acknowledged the conflict in   KMO  and  MAB, Upper Tribunal  Judge Gill   in AB (para 399(a)) [2015] UKUT 657 (IAC) bluntly stated that neither MAB nor KMO  were binding upon  her but in effect indicated  that if she had  to pick  a decision to follow, she would chose KMO.

RELEVANT  LEGISLATION : THE UK BORDERS ACT  2007

Sections 32 and 33 of the UK Borders Act 2007 provide, so far as material:

“32. Automatic deportation

(1) In this section “foreign criminal” means a person—

(a) who is not a British citizen,

(b) who is convicted in the United Kingdom of an offence, and

(c) to whom Condition 1 or 2 applies.

 

(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3) Condition 2 is that-

(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (serious criminal), and

(b) the person is sentenced to a period of imprisonment.

(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.

(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). …’

  1. Exceptions

(1) Section 32(4) and (5)—

(a) do not apply where an exception in this section applies (subject to subsection (7) below), and

…

(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—

(a) a person’s Convention rights, or

(b) the United Kingdom’s obligations under the Refugee Convention.”

THE  RELEVANT  IMMIGRATION  RULES

With effect from 9 July 2012 with the amendment to the Rules by HC 194 which  inserted new paragraphs 396–400 into the Rules, these paragraphs sought to set out the weight to be given to the public interest in deportation cases where an individual relied upon his private or family life under Article  8 of the ECHR.

The new provisions were further amended by HC 532 with effect from 28 July 2014. These  provisions apply to all appeals heard on or after 28 July 2014 even if the Secretary of State’s decision was made before that date.

Paragraph  396 of the immigration rules provides the following presumption:

“396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007”.

Paragraphs  397 and A398 make clear that the rules aim to encompass rights protected by the ECHR:

“397. A deportation or der will not be made if the person’s removal pursuant to the order would be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed”.

“A398. These rules apply where:

(a)  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;

(b) a foreign criminal applies for a deportation order made against him to be revoked”.

“Deportation and Article 8:

“A398. These rules apply where:

(a) 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;

(b) a foreign criminal applies for a deportation order made against him to be revoked.

  1. 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”.

Family life with a Partner or Child:

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

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported”.

Private Life:

“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”.

 

RELEVANT  LEGISLATION  PART  5A OF THE 2002 ACT- SECTION 117

In addition to the amendments to the Rules from 28 July 2014, from that date statutory provisions in a new Part 5A of the  2002  Act (inserted by Section.19 of the Immigration Act 2014) deal, in legislative form for the first time, with the issue of the “public interest” in deportation (Section 117C) and other cases (section 117B) where the court or Tribunal is determining whether a decision made under the Immigration Acts breaches Art 8 of the ECHR:

“Article 8 of the ECHR: public interest considerations

117AApplication of this Part

(1)This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—

(a)breaches a person’s right to respect for private and family life under Article 8, and

(b)as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2)In considering the public interest question, the court or tribunal must (in particular) have regard—

(a)in all cases, to the considerations listed in section 117B, and

(b)in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3)In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2). 

117BArticle 8: public interest considerations applicable in all cases

(1)The maintenance of effective immigration controls is in the public interest.

(2)It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—

(a)are less of a burden on taxpayers, and

(b)are better able to integrate into society.

(3)It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—

(a)are not a burden on taxpayers, and

(b)are better able to integrate into society.

(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.

(5)Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.

(6)In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a)the person has a genuine and subsisting parental relationship with a qualifying child, and

(b)it would not be reasonable to expect the child to leave the United Kingdom

117CArticle 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………”

RELEVANT  CASE LAW ON THE MEANING OF UNDULY HARSH

(1)MAB (para 399; “unduly harsh”) USA [2015] UKUT 435 (IAC)

The appeal raised an important point of construction concerning the meaning of the phrase “unduly harsh” in  relation to paragraph  399 of the Immigration Rules in effect from 28 July 2014.

Arguments Made on Behalf of the Secretary  of State:

The Appellant, subject to deportation proceedings,   had  British  children  in the UK and upon his appeal against  deportation  being  allowed by the First Tier Tribunal, the Secretary  of  State appealed to the  Tribunal.

The Secretary of State did not challenge the Judge’s finding that it would be “unduly harsh” for the appellant’s children to live in the USA. However, it was  submitted that the judge’s finding that the appellant’s deportation would have an “unduly harsh” effect upon the children if they remained in the UK was flawed.

It was also  put forward on behalf of the Secretary of State  that the judge had failed to take into account the public interest in assessing whether it would be “unduly harsh” for the children to remain in the UK without the appellant.  It was stated  that the judge had wrongly simply looked at the impact upon the children. The question of whether his deportation would be “unduly harsh” could not, be decided in isolation from the public interest reflected in the seriousness and nature of the appellant’s offending. The magnitude of the public interest was relevant in determining whether any “harsh” consequences were “unduly” so.  It was also   submitted that whether the effect of deportation was “unduly harsh” required a context and that context was the individual’s offending and the public interest reflected in its seriousness, society’s expression of revulsion at serious criminality and the deterrent effect on other foreign nationals committing offences.  It was put forward that the words “unduly” had a sense of unfairness to the individual and required an evaluation of whether the consequences were or were not ‘due’ to that individual. Even though deportation might have very harsh consequences, whether it was “unduly harsh” could only be determined by looking at the magnitude of the public interest furthered by the individual’s deportation. It was  submitted that the more serious the crime the greater must be the consequences for them to be properly characterised “unduly” harsh.

Arguments made on Behalf of the Appellants:

It was  submitted  on behalf of the appellant that the judge had been entitled to find that the impact of the appellant’s deportation would be “unduly harsh” upon the children on the basis of the evidence that they were struggling to survive.  Further, it was not accepted  that the “unduly harsh” test required consideration of the public interest. However,  it was also contended that the judge had done so by considering the public interest when, in an earlier part of his determination, he set out  Section 117A-117C of the Nationality, Immigration and Asylum Act 2002 and stated that he had taken account of the judge’s sentencing remarks. It was accepted that the judge had not explicitly referred to the public interest in the relevant passage in his determination concerned with the issue of “unduly harsh” but, nonetheless, he submitted the judge had sufficiently considered the public interest.  Reliance  was  placed upon two passages in determinations of the Upper Tribunal in MK (Section 55 – Tribunal options) Sierra Leone [2015] UKUT 223 (IAC) at [46] and BM and Others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 293 (IAC) at [109] to counter the Secretary of State’s position.

Tribunal’s Findings and Conclusions:

The Upper  Tribunal considered that nothing in MK or BM and Others supported  the Secretary of State’s submission that inherent in the adverb “unduly” is a consideration not only of the impact upon the child (or partner) but also the public interest reflected in the individual’s offending.  In  the Upper Tribunals judgement, the approach set out in  paragraph of MK and  paragraph  of BM and Others reflects the correct approach to the phrase “unduly harsh” in paragraph 399(a). In  the Upper Tribunal’s  judgment,  the Secretary of State’s submissions, if correct, would result in any ambiguity in the meaning of the phrase “unduly harsh” being resolved “more harshly” in the “government’s favour”.

Further, in  the Upper Tribunal’s   view, it was  not necessary to interpret the word “unduly” so as to necessarily implant a balancing exercise as put forward by the Secretary of State.

It was  clear to  the Tribunal  that the Secretary of State has, in paragraphs  399 and 399A, set out in detail the number of circumstances where the particular factual matrix has led the Secretary of State to conclude that the public interest in deportation (providing the individual has not been sentenced to at least four years’ imprisonment) is outweighed by those circumstances. The policy in paragraph  399 focuses upon the effect upon children (para 339(a)) or a partner (paragraph  399(b)). The wording of the provision, in itself, reflects that focus: “unduly harsh for the child”.  It seemed  to  the Upper Tribunal , that the issue of “unduly harsh” is treated as an isolated issue focusing on the individual child or partner affected by the appellant’s deportation. It is only if neither paragraph  399 nor paragraph  399A applies that the Rules contemplate the decision maker carrying out a balancing exercise for themselves applying the “very compelling circumstances” rubric and, since Part 5A of the 2002 Act  came into force, including the considerations set out in Section 117C and Section 117B.  The Upper Tribunal was of the view that there was   no place for a balancing exercise to be carried out repetitively.

In the  Upper Tribunal’s  judgment, the word “unduly” requires that the impact upon the individual concerned be ‘inordinately’ harsh. By that  they  mean that the impact would be “unusually large” or “excessive”.  They made it clear that they did   not intend that to be a definition but rather a ‘gloss’ to assist decision makers applying paragraph  399 and  indeed, Section 117C(5).

In the  Upper Tribunal’s view the First Tier  Judge did not fall into error by failing to consider the public interest in reaching his finding that it would be “unduly harsh” for the appellant’s children to remain in the UK whilst he was deported to the USA.

On the other hand, the Upper Tribunal  considered that  the First Tier Judge erred in law by failing to give adequate reasons and in reaching an irrational conclusion that the impact upon the appellant’s children of remaining in the UK was “unduly harsh”. Further, the evidence did not establish that the consequence of his deportation for them remaining in the UK was “unduly harsh”.  Applying the meaning of “unduly harsh” set out in MK that, this did  not equate with “uncomfortable, inconvenient, undesirable or merely difficult” circumstances. The Upper Tribunal  had no doubt that the circumstances identified by the judge could not be equated to “unduly harsh” consequences for the children. It could not properly be established that the effect on them of the appellant’s deportation was excessive, inordinate or severe. The only proper finding, is that the effect on the children has not been established to be ‘unduly harsh’.

The First  Tier Judge’s decision to allow the appellant’s appeal under Article  8  was found to involve  the making of an error of law and could not stand. The Upper Tribunal  set the decision aside and moved to remake the decision.

The Upper Tribunal  concluded that given the seriousness of the appellant’s offending, taking into account all the circumstances, they were  not satisfied that there were  “very compelling circumstances over and above” those in paragraph  399(a) and paragraph  399A such as to outweigh the significant and considerable weight which must be given to the public interest in the  appeal. The appeal was dismissed.

(2)KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 543 (IAC):

The question of law that arose   to be addressed in the appeal concerned  the construction of the phrase “unduly harsh” in Section 117C of the Nationality, Immigration and Asylum Act 2002 (as amended) and paragraph  399 of HC 395, as amended by HC 532.

The question was  whether, in particular, when carrying out an assessment as to whether the impact upon a qualifying child or partner will be unduly harsh, should that assessment be informed by the seriousness of the offence committed by the foreign criminal facing deportation or is that assessment focused entirely upon the impact upon the innocent family member, with no reference whatsoever to the seriousness of the offence.

For the Secretary of State, it was submitted that the approach set out by the Tribunal in MAB was  not correct.

It was noted that  approach taken by the Tribunal in MAB was that there was a two stage approach, at least “potentially” so that the issue of proportionality arose only at the second stage, where a person subject to deportation failed to meet the requirements of 399 or 399A. The Upper Tribunal stated that if that were correct, the result would be somewhat remarkable in that a clear presumption enshrined in primary legislation would be displaced by an immigration rule. The Upper Tribunal considered that approach seeks to disregard the unambiguous requirement of Sectiion.117A(2) that in considering the public interest question, the court or tribunal must (in particular) have regard to, inter alia, the statement of principle found in Section 117C(2) that the more serious the offence, the greater is the public interest in deportation.

The Upper Tribunal  stated that there is nothing in the rules, or the statute, to eliminate from an assessment of what is “unduly harsh” considerations of the seriousness of the offence committed.

The Upper Tribunal considered that the phrase “unduly harsh” plainly anticipates an evaluation being required.

The Upper Tribunal   stated that the Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of para 399 of the Immigration Rules, as that comprises an assessment of that person’s claim under article 8 of the ECHR, it is necessary to have regard, in making that assessment, to the matters to which the Tribunal must have regard as a consequence of the provisions of Section 117C. In particular, those include that the more serious the offence committed, the greater is the public interest in deportation of a foreign criminal. Therefore, the word “unduly” in the phrase “unduly harsh” requires consideration of whether, in the light of the seriousness of the offences committed by the foreign criminal and the public interest considerations that come into play, the impact on the child, children or partner of the foreign criminal being deported is inordinately or excessively harsh.

As noted  by the Upper Tribunal  in KMO at paragraph  26 ,  although they departed from the approach advocated by the Tribunal in MAB  they did adopt the other guidance offered by that decision being:

“Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold.

The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are “inordinately” or “excessively” harsh taking into account all of the circumstances of the individual.”

The Upper Tribunal made it clear that “all of the circumstances” includes the criminal history of the person facing deportation.

(3)AB (para 399(a)) [2015] UKUT 657 (IAC)

In AB, Upper Tribunal Judge  Gill  stated:

“54.Neither MAB nor KMO is binding upon me. Although of course I take account of the need for judicial comity, this is not necessarily determinative. In any event, given the clear conflict between the two decisions, it is not possible for me to follow both.

55.Mr Farhat mentioned MAB at the hearing in response to which I mentioned KMO. He did not address me on which of the two decisions I should follow and why. His skeleton argument refers to MAB. It is noticeable for its complete failure to mention KMO.

56.I take into account the fact that, whilst the decision in MAB was reached by a panel, the decision in KMO was made by a single Upper Tribunal Judge. Nevertheless, I am entirely persuaded by the reasoning at [8]-[25] of KMO. I prefer to follow KMO.”

CONCLUSION

MAB (para 399; “unduly harsh”) [2015] UKUT 435 (IAC) was heard  on 16 June 2015  and notified on   16 July 2015.

KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 543 (IAC) was heard on 16 September 2015 and was notified on  25 September 2015.

AB (para 399(a)) [2015] UKUT 657 (IAC) was heard on 19  October 2015  and notified on 20 November 2015.

Having regard to  MAB, a Judge  would  not fall into error by failing to consider the public interest in reaching his finding that it would be “unduly harsh” for an appellant’s children to remain in the UK whilst he was deported.

These Upper Tribunal appeals were heard  and  decided  in the space of less than  6months. It would have been  thought that by the  time the  third  decision was  notified, there would be  more  or less some sort of finality as regard the applicable principles within the Upper Tribunal   if only  for the sake of consistency. This is clearly preferable to a public  acknowledgment of conflict within the Upper Tribunal itself  in reasoning upon the same ground. In  practice,  this is leading to the undesirable practice  with  the   First Tier and Upper Tier Judges choosing, depending  upon  the  facts in the appeal,   whether or not to apply KMO or MAB.  It remains to  be seen whether the conflict  will be resolved by the  Upper Tribunal itself or  be left to the Court of Appeal.

 

 

 

 

 

UK Certification Procedure and Appeals: What the Home Office Consider A Weeding Out of Abusive, Spurious, Repetitious And Unfounded Claims

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Although an applicant   who submits a claim  to the Home office   has the hope that  the  outcome will be positive, that claim may however be refused  with the Home office subjecting it  to the certification procedure.  The certification  procedure operated by the Home Office   in relation to human rights and asylum claims  has the effect of either  an outright denial of a right of appeal  or a  requirement  that such an appeal right be  pursued  after the person  has  left the UK.

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The Deportation and Exclusion Regime for EEA And Non- EEA Foreign National Criminals: Of Deportation Orders, Exclusion Decisions and Exclusion Orders

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The  UK Government  has  over the years (more so since July 2012)  sought to introduce measures   intent upon ensuring  that  foreign national criminals  are  deported or excluded from the UK.  Where deportation appeals are won, the Home Office’s   now predictable  reaction  is an onward appeal,  challenging  allowed Tribunal decisions  and sometimes with success.  Those subject to deportation  therefore cannot afford to  proceed upon  an assumption  that once a deportation appeal  is won, the Secretary  of State will not seek to appeal such  a decision.

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Seeking to Deport EEA Nationals From The UK Before their EEA Appeals are Heard -EEA Deportations, Appeals and Regulation 24AA Certification

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Having regard to EEA law with particular reference to the provisions of the  Directive 2004/38/EC and the differing levels of protection it provides to EEA nationals   against expulsion, the  Home Office have been aware for a considerable length of time of how difficult it is to seek to remove EEA nationals, even those subject to deportation having been convicted of criminal offences in the United Kingdom.   In brief the mentioned Directive provides that  EU member states may take expulsion decisions against Union citizens and their family members on grounds of public policy, public security  and public  health with such measures requiring to be  justified and in compliance with the principle of proportionality. The personal conduct of the  EEA citizen must also represent a genuine, present and sufficiently  serious threat affecting one of the fundamental interests of society.

It  is however becoming increasingly clear since the coming into force of Regulation 24AA of the 2006 EEA Regulations that the Home Office are making efforts to deport EEA nationals almost on the same basis as non -EEA foreign national criminals by resorting to human rights considerations and certifying arising human rights claim as a justification of effecting increased deportations rather than applying relevant law originating from the parent Directive 2004/38/EC.  Regulation 24AA was initially rolled out to a limited cohort of cases from 28 July 2014 however that first phase came to an end on 17 October 2014 and as such   the full practical effect of the regulation having wider applicability is now being felt. Regulation 24AA certification must now be considered in all deportation decisions made pursuant to the 2006 EEA Regulations unless it falls within certain exceptions.

In order to seek to substantially reduce the numbers of  EEA nationals having their appeals heard whilst they are present in the UK, regulation  24AA is being applied by the UK government to take effect  whether or not an EEA national has had a chance to appeal a negative EEA decision or where he has so appealed but the appeal is yet to be determined .   The effect of regulation 24AA is that the Home Office can issue a certificate within the negative decision and warning that removal directions may or will be set directing  the EEA national’s removal from the UK pending the outcome of the appeal so long as the Home Office is satisfied that removal would not be unlawful under Section 6 of the Human Rights Act 1998 which requires the Home Office not to act contrary to the Human  Rights Convention. The grounds upon which the Home Office can certify the decision include that the EEA citizen would not before the appeal is finally determined face a real risk of serious irreversible harm if removed from the United Kingdom.   This sets a very high threshold to overcome.

Where such removal directions are set, in order to prevent removal the Home Office will expect that an application for an interim order/injunctive relief be made to the Upper Tier Tribunal or other Court.   Such applications are usually made by way of a judicial review claim. So long as the interim order application has been submitted to the Upper Tribunal or relevant Court the removal will be deferred upon proof of an issued sealed claim without a decision upon  the interim order having actually  been taken by the Tribunal at the same time as lodgement.

There are however certain exceptions set out within regulation 24AA where removal will take place even if an application for an interim order is made. Regulation 24 AA has an accompanying Home Office Guidance Policy, ie The Regulation 24AA Certification Guidance for European Economic Area Deportation Cases Version 2.0 , 20 October 2014. The guidance applies to any EEA national or non-EEA national with enforceable EU law rights who fall to be deported under regulation 19(3)(b) of the 2006 EEA Regulations. The guidance among other provisions also provides for some very limited cases considered not suitable for regulation 24AA Certification.

The application of a regulation 24AA certificate therefore does not prevent a person from lodging an appeal from within the UK, rather, by amending regulation 29 of the 2006 EEA Regulations, it removes the suspensive effect of that appeal so that whilst a person may lodge their appeal in-country, the lodging of such an appeal does not suspend their removal from the UK.  The amended EEA Regulations however allow a person who has been deported to apply from out of country for permission to re-enter the UK solely in order to make submissions in person at their appeal hearing. The question currently appears to be whether removal and exclusion of EEA nationals by reliance on provisions stemming from regulation 24AA is lawful and justifiable as this regulation appears to focus on human rights considerations.   Although the human rights claim may have been certified, the EEA claim itself will not be. It may be argued that the resultant removal directions cannot be relied upon to deport the EEA national where the only reason is that there is a certification the human rights claim whilst the EEA appeal/claim remains pending. It can also be readily argued that having regard to the parent Directive, to the need to justify EEA deportations and   to only deport where it is proportionate and justifiable to do so the introduction of regulation 24AA and its accompanying policy appears somewhat contrary to basic EEA principles on expulsion of EEA nationals from host member states.

It appears that as long as the Home Office are satisfied that pending the outcome of the appeal, removal of an EEA national will not be unlawful under Section 6 of the Human Rights Act 1998 then removal of an EEA national subject to deportation is justifiable.   In this regards, an issue deserving of real consideration is that as a right of residence under EEA law provides a higher level of protection than that under a human rights claim, in  order to seek to circumvent the practical effect of regulation 24AA an EEA national may tactfully seek to exclude reliance upon human rights provisions during the course of a claim or appeal. The Home Office may however seek to treat a human rights claim as impliedly raised in any case depending on the facts put forward during the claim.   The current Home Office   approach seeming to combine   EEA law and human rights law however should not be necessary as these are separate and distinct areas of law. The grounds for certification in  regards to Regulation 24AA are based on a test of facing a real risk of serious irreversible harm if the EEA national is removed. Where an EEA claim or appeal is raised, having  regard to EEA law the grounds upon which exclusion of an EEA national are to be justified are set out within the parent Directive. Regulation 24AA contains none of the relevant EEA considerations required to justify exclusion more so when that regulation is clearly stated to be intended to have regards to human rights considerations.

Pending some detailed clarifications from the higher courts, the issue therefore is whether it is lawful for the Home Office to seek to set removal directions and exclude an EEA national from the United Kingdom having regard only to human rights provisions of the ECHR as opposed to relevant provisions of the parent Directive 2004/39/EC whilst an EEA claim remains pending and uncertified. There is thus currently an argument to be put forward that a regulation 24 AA certification as it applies in practice has the effect that reliance upon it to exclude EEA nationals from the UK before their deportation EEA appeals are heard may result in a breach of EEA law itself generally and a breach of the EEA national’s individual rights specifically.

The Government’s Deport First, Appeal Later Policy – Deportation of Foreign National Criminals and Appeal Rights After the Immigration Act 2014

Posted on by Standard Reply

INTRODUCTION

The Government has brought in changes in relation to restricting appeal rights and these mostly  affect foreign national criminals subject to deportation. In essence where foreign national criminal who are subject to deportation do not raise a protection claim or human rights  claim they will not obtain a right of  appeal. However where they do in fact raise these claims in order to resist deportation, the Home Office may certify the claim in particular relying upon new certification powers  thereby denying the foreign national criminal an in- country right of appeal altogether and instead requiring them to appeal outside the UK following departure.

LIABILITY TO DEPORTATION

Non- EEA foreign criminals  may be considered for deportation under the Immigration Act 1971   or the UK Borders Act 2007.

To be subject to automatic deportation  provisions the foreign national criminal must meet the relevant criteria under the UK Border Act 2007.  Where the foreign national criminal does not meet the automatic deportation threshold criteria consideration is given to whether deportation should be pursued under the Immigration Act 1971 because it would be conductive to the public good.

Section 32(5) of the UK Borders Act 2007 sets out that the Secretary of State must make a deportation order in respect of a foreign criminal where:

  • the criminal was convicted in the United Kingdom and sentenced to a period of imprisonment, and
  • the period of imprisonment is 12 months or more, and
  • the sentence is a single sentence for a single conviction, it must not be an aggregate sentence or consecutive sentences, and
  • the criminal was serving that sentence on or after 1 August 2008, and
  • the criminal had not been served with a notice of decision to deport before 1 August 2008, and
  • none of the exceptions set out in section 33 of the 2007 Act apply.

Section 33 of the UK Borders Act 2007 sets out exceptions to automatic deportation. Where an exception applies then automatics deportation cannot continue however that does not necessarily preclude deportation action under the Immigration Act 1971. An individual is also exempt from automatic deportation under sections 33(1)(b) of the UK Borders Act 2007 if they fall within sections 7 or 8 of the Immigration Act 1971 and they are exempt from deportation. Where the Secretary of State decides none of the exceptions apply and that deportation under section 32 of the UK Borders Act 2007 is required, a decision to deport must be served setting out why the foreign national criminal’s presence  is not conducive to the public good. Section 3(5) of the Immigration Act 1971 allows the Secretary of State to deport individuals where their presence in the United Kingdom is not conductive to the public good. This gives the Secretary of State discretion to act in a way that reflects the pubic interest.

A non -EEA foreign national will normally be considered for deportation pursuant to  the Immigration Act 1971 if they do not meet the criteria for deportation under the UK Borders Act 2007 but they have been involved in criminal activity in the UK or overseas and meet one of the criteria below;

  • the non -EEA foreign national is recommended for deportation by a court empowered to do so;
  • the non- EEA foreign national has received a custodial sentence of any length for a serious drug offence or gun crime;
  • the non EEA foreign national has committed a crime and received a custodial sentence of 12 months or more. This can be made up of aggregate or consecutive sentences;
  • the non EEA foreign national is a persistent offender. “Persistent offender” means a repeat offender who shows a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short timeframe, or which escalate in seriousness over time, or a long history of minor offences;
  • the non EEA foreign national has been sentenced to less than 12 months’ imprisonment, but the Secretary of State considers that the offending has caused serious harm either in the UK or in another country;

The Home Office can also take into account:

  • Cautions: Police cautions can also be taken into account when considering whether deportation is conducive to the public good;
  • Previous Convictions: All previous convictions can be taken into consideration when making a deportation decision on or after 13 December 2012;
  • Serious Harm offences: The Secretary of State has discretion to consider whether an offence has caused serious harm. Such an offence may result in a sentence of less than 12 months but may still be grounds on which to pursue deportation.

Section 3(5)(b) of the Immigration Act 1971 provides for deportation of family members if another person to whose family he belongs is or has been ordered to be deported. When considering whether section 3(5)(b) is appropriate full account must be taken of paragraphs 365 to 366 of the Immigration Rules. Section 7(1) of the Immigration Act 1971  states that it is not lawful to deport Commonwealth or Irish Citizens who were Commonwealth or Irish Citizens and were ordinarily resident in the UK for the commencement of the Act in January 1973 and ordinarily resident in the UK for at least five years before the decision to make a deportation order. Where the Home Office decide that deportation is appropriate then a decision to make a deportation order is served by the Secretary of State setting out why the foreign national’s presence is non-conducive to the public good. The decision informs the foreign national that they may if they wish make representations within 20 working days as to why they should not be deported. The decision is required to issue a warning under Section 120 of the Nationality, Immigration and Asylum Act 2002 which places a continuing obligation to raise with the home office any reason why they should be permitted to remain in the UK including any time there is a change of circumstances as soon as they occur. The decision is also required to seek representations from the foreign national about whether there are any reasons why any appeal against a final refusal of any claim by the Home Office should not be certified under section 94B of the 2002 Act, the effect of which would be an out of country right of appeal. Article 8 claims from foreign national criminals are considered under paragraphs 398 to 399A of the Immigration Rules also with reference to sections 117A to 117D of the Nationality Immigration and Asylum Act 2002(as amended by section 19 of the Immigration Act 2014).

If there is found to be a breach of the UK’s obligations under the refugee convention or the ECHR then deportation  under either the UK Borders Act 2007 of the Immigration Act 1971 will not be possible.

DEPORTATION APPEALS AFTER 20 OCTOBER 2014

The changes to the immigration appeals system in the Immigration Act 2014 are being brought into force on a phased basis. The first phase started on 20 October 2014 and included foreign criminals being deported. The new appeals regime will also apply to persons being deported as family members of foreign criminals under section 3(5)(b) of the Immigration Act 1971.

Rights of appeal are restructured such that a person only has a right of appeal where the Secretary of State refuses a human rights claim or a protection claim or revokes a person’s protection status. The 2014 Act does not change the rights of appeal under EEA regulations and deprivation of citizenship.

The place from which an appeal can be brought or continued is dependant on where the person was when  the claim was made and the nature of the claim. The definition  of “foreign criminals” does not include  all deportation cases. Some persons who are not foreign nationals may be subject to deportation. During the first  phase of commencement of the new Act these persons will retain rights of appeal under the pre- Immigration Act 2014 regime. Where a foreign national criminal makes a human  rights or protection claim if the claim is refused the right of appeal is under  the new Act. If no representations are made after the above mentioned 20working day deadline for representations has passed, the Secretary of State is most likely to make a decision on issuing a deportation order on the facts that are before them. As a human right claim will not have been made by the individual the deportation order will not be appealable and the individual may expect to be removed. Any representations received after the deportation order has been made must still be considered by the Home office. If it is decided on the basis of the post – deportation order representations  that deportation should not be pursued the deportation order will be revoked. However under the new Act there is no longer a right of appeal against deportation or the refusal to revoke a deportation order. Therefore from  20 October 2014 foreign criminals will no longer be able to appeal against a deportation decision. Any foreign criminal who applies to have their deportation order revoked will fall under the new appeals regime if they are served with a refusal to revoke( a revocation decision) on or after 20 October 2014. This will be the case irrespective of whether the decision is served in the UK or overseas.

A person is however likely to have a right of appeal where the Secretary of State refuses to revoke a deportation order only where they make a protection or human rights claim which is refused.

CERTIFICATION

If the representations  raise protection or human rights grounds and it is decided to refuse the claim(s), the Secretary of State is required to  consider whether the claims should be certified under existing powers (section 96 and section 94 of the 2002 Nationality and Immigration Act) or in the case of non- protection claims under section 94B of the 2002 Act( as inserted by the 2014 Act) which allows the certification of human rights claims made by those liable to deportation in certain circumstances. Where it is not possible to certify a protection or human rights claim under the above mentioned provisions then the foreign national will have an in- country right if appeal.

CONCLUSION

The current government ‘s policy in relation to foreign national criminals is ” deport first, appeal later”. In practice therefore there  are instances of foreign national criminals who having held indefinite leave to remain for  up to 20years with  families here having their human rights claims being refused and certified under Section 94B of the 2002 Act. They are expected to appeal outside the UK following their departure. The Home Office themselves acknowledge that meeting the threshold for the irreversible harm test in this regards is high and that cases that will succeed are rare. Therefore although there is a reduction in rights of appeal as a result of the amending provisions of the 2014 Act and the introduction  of new and additional certifying powers, in practice the mere fact of potentially being able to appeal a  human rights claim if refused is just but a mere hope.

Where certification is applied, this means currently in light of the relatively new appeal provisions,  judicial review claims will be lodged  as the Section 94B power of certification is discretionary and it may also be possible to seek to challenge the certification decision also having regard to what appears a restrictive  accompanying policy being applied in conjunction with Section 94B of the 2002 Act. Therefore rather than expediting removals of foreign national prisoners by denying them a right of appeal in- country, for some time at least there will be a priority by claimants to take judicial review action. Having regard to the lengthy period of time the Upper Tier Tribunal is taking to consider such types of review claims, it is not only likely that it will take longer to deport affected persons but also that whilst judicial review claims are pending they may even be granted bail by the Tribunal.