MM (Jamaica) v Secretary of State for the Home Department

LORD JUSTICE AIKENS: This is an appeal by the Secretary of State for the Home Department ("SSHD") with the permission of Arden LJ, from a decision of the Upper Tribunal (Immigration and Asylum Chamber), which was promulgated on 6th February 2014. The hearing had taken place on 4th December 2013 before the President, McCloskey J and Upper Tribunal Judge Eshum. It appears that the President gave an ex tempore judgment immediately after submissions.

The SSHD had appealed a decision of the First-tier Tribunal (Immigration and Asylum Chamber)(FTT) promulgated on 13th August 2013. That decision had allowed the appeal of Mark Wayne Miller, the current respondent (which is how I will refer to him in this judgment) from the decision of the SSHD, dated 24th January 2013, to deport him as a "foreign criminal" pursuant to section 32(5) of the UK Borders Act 2007.

It is sensible to set out the relevant provisions of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) ("the 1971 Act") and the UK Borders Act 2007 ("the 2007 Act") at this juncture. Section 3(5)(a) of the 1971 Act provides:

The 2007 Act came into force on 8th August 2008. Sections 32(1) and subsection (2) of the 2007 Act defined who is for the purposes of the Act a "foreign criminal". For present purposes it is someone who is not a British citizen, who has been convicted in the UK of an offence and who has been sentenced to a period of imprisonment of at least 12 months. Section 32(4) declares for the purpose of section 3(5)(a) of the 1971 Act that:

Section 32(5) of the 2007 Act stipulates that the Secretary of State must make a deportation order in respect of a foreign criminal, but this is subject to section 33 of that Act. Section 33(1) provides that section 32(5) will not apply if one or more of various exceptions set out in section 33 applies. The first of these exceptions is where removal of the "foreign criminal" in pursuance of a deportation order would breach a person's Convention rights: section 33(2)(a). These Convention rights obviously include a person's right to respect for private and family life under Article 8 of the ECHR.

Section 33(7) states that the application of an exception within section 33 does not prevent the making of a deportation order and "results in it being assumed neither that deportation of a person concerned is conducive to the public good nor that it is not conducive to the public good". The effect of this somewhat convoluted provision is that the fact that a person comes within the exceptions has no effect in itself either way on the declaration of the section 34(4) of the 2007 Act, viz deportation of a foreign criminal is conducive to the public good - see SS (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 998, at paragraph 54.

It is also sensible to record, at this stage, the relevant immigration rules that were in force at the time that the SSHD made her decision to deport the respondent. The same rules were enforced at the time of the decisions of the FTT and the UT in this case. With effect from the 12th July 2012 the relevant rules were those contained in the statement of Immigration Rules HC194. I will call these "the 2012 rules". The relevant rules are A362, 363, 364, 397, 398, 399 and 399A. These are all set out in the FTT's decision at paragraph 14, save for rule 364:

It should be noted that the immigration regime has changed yet again as a result of the Immigration Act 2014 ("the 2014"). The relevant parts of that Act came into force on 28th July 2014. Section 19 of the 2014 Act introduced a new part 5A into the Nationality Immigration and Asylum Act 2002, which new part contained sections 117A to 117D. That part is headed "Article 8 of the ECHR: public interest considerations." These new sections (117A to 117D) set out statutory guidelines that must be applied when a court or Tribunal has to decide whether an immigration decision to remove someone from the UK would be in breach of his Article 8 rights.

The 2012 rules were also changed with effect from 10th July 2014 by virtue of the Statement of Changes to Immigration Rules of 10th July 2014 (HC532). This statement makes major changes to the rules 398, 399 and 399A of the 2012 rules. The effect of the changes was set out in my judgment in YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292, at paragraph 15. It is unnecessary to set them out here again.

The respondent is a national of Jamaica who was born on 3rd August 1991. He arrived in the UK on 21st September 1992, therefore he was at the time aged 21. He was refused leave to enter the UK but granted temporary admission. He was required to report back to the immigration officer on the 23rd September 1992. He failed to do so. The appellant has remained in the UK ever since. He has never had any lawful right to do so. His position is what is often called "precarious".

The respondent has a long history of criminal offences. These are set out in paragraph 3 of the FTT's decision, as follows:

When His Honour Judge McKinnon sentenced the respondent to the five counts of unlawful use of false identity documents on 26th November 2009 he made the following comments:

Following the respondent's release from prison in 1997 he met S, who became the respondent's partner and they lived together until November 2008. They had a son, T, who was born on 7th March 2005. After that relationship ended the respondent lived with another partner, A. A son, J, was born to that relationship on 26th January 2007. The FTT's decision recorded that if the respondent's appeal was successful he and A hoped to marry. It also recorded that the respondent had a close relationship with A's own two children, then aged 10 and 11, and that he treated them as his own. A's own children are UK citizens as of course are T and J.

The FTT decision also records that the respondent had not been in trouble since his release from prison following his 2009 conviction and that he sees a lot of his son, T. His mother hoped that T would grow up in the UK having frequent contact with the respondent. T himself had expressed to the FTT, his deep affection for the respondent and a need to maintain regular conduct.

The immigration history of the appellant following his conviction and sentence in 2009 is as follows: on 15th February 2010 the SSHD wrote to the respondent pursuant to the 2007 Act whilst he was in custody, informing the respondent of his liability to automatic deportation. The respondent was invited to furnish reasons as to why he should not be deported from the UK. Shortly stated, the respondent claimed, under cover of his solicitor's letter, faxed on 9th March 2010, (incorrectly dated 3rd February 2010) and a letter dated 16th June 2010, that his removable would breach his Article 8 rights and those of his then partner, S, their child T, and J, who had been born of the relationship with A.

On 9th August 2010, after serving the custodial part of his sentence, the respondent was released on immigration bail. Amongst other conditions he was required to live and sleep at the address of A. On 29th November 2012 the SSHD, by letter, sought further evidence of the respondents but this letter was returned by his solicitors as they were not then instructed by him.

On 31st December 2012 a letter was sent to the respondent's address by recorded delivery requesting further information. That letter was signed for on 5th January 2013. No reply was received and it was against this background that on 24th January 2013 the SSHD made a decision to deport the respondent under section 32(5) of the 2007 Act.

The respondent appealed the SSHD's decision of 24th January 2013 on 11th February 2013. The respondent asserted that deportation would be in breach of his Article 8 rights and that it would not be in the best interest of his two children for him to be deported.

The FTT heard oral evidence from the respondent and from A and A's aunt. There were letters of support from S, the respondent's son T and A's aunt. The Tribunal also had a clinical psychology record from Dr Roznin Halari who had interviewed the respondent, A and all the children. Dr Halari's conclusion was that the removal of the respondent was likely to have a significant detrimental impact on each child's psychological, social, emotional and educational development. Her conclusion was that the children's best interests would be served by allowing the respondent to remain in the UK.

The FTT considered first whether the respondent came within any of the terms of rule 399 or 399A of the 2012 rules. The FTT concluded that he did not. Paragraph 15 of the FTT decision continues:

I note here that the analysis of the effects of rules 398 to 399A of the 2012 rules by the UT in the MF (Nigeria) case was held to be wrong when that case was considered by the Court of Appeal. I will have to return to that point later. The FTT noted that it was common ground that the respondent had a "poor immigration history as an over stayer", that he had worked unlawfully using the name of another and that he had been convicted in 2009 for "serious offences for which he had served 15 months' imprisonment". It recorded that the respondent had a "poor criminal history". However, the FTT regarded the witnesses as "candid and honest about their lives and relationships" and it accepted that the respondent had "a sustainable relationship" with A and that he was a good father to his children and those of A. The FTT concluded that the respondent was "at a low risk of re-offending save for the unlawful possession of cannabis for personal consumption". The basis for that conclusion was not identified. There is nothing to suggest that the FTT or an OASys report or anything similar.

The FTT referred to Article 8, the well-known House of Lords decision of Razgar [2004] 2 AC 368 and the equally well-known decision of the European Court of Human Rights in Boultif v Switzerland [2001] ECHR 497. The FTT then drew various conclusions. First, it characterised the offence of the use of false documents "committed to enable the appellant to work and support his family" and whilst a serious offence, it was "diminished to the extent [the respondent] does not present a risk to the public". The FTT said that the "dishonesty of the offences was parasitic upon [the respondent's] lack of immigration status". I have to say that this explanation strikes me as special pleading of an unconvincing nature. The respondent had no one but himself to blame for his "lack of immigration status". Secondly, the FTT noted that the respondent had committed no offence since the 2009 conviction. Thirdly, it noted that the respondent's two children were UK citizens and did not wish to "follow" the respondent to Jamaica. The FTT considered the interest of A's children as well and regarded that as being "substantial." It commented that those children could not be expected to leave the UK and lose their UK citizenship. Fourthly, the FTT concluded that the relationship with A predated the 2009 offences and was "genuine and subsisting". It concluded the respondent's deportation would have a serious impact on the well being of his children.

The FTT then referred to the Court of Appeal decision in SS (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 998. That is an important decision concerning the correct approach of a count when a "foreign criminal" resists deportation on Article 8 grounds, relying in particular on the interests of his children. The FTT quoted extensively from the judgment of Laws LJ with which Black LJ and Mann J had agreed. The FTT's conclusion is at paragraph 25 of its decision. It concluded:

The SSHD appealed. In its decision the UT described the challenge to the FTT decision as being an "irrationality challenge" - see paragraph 4. The UT therefore stated that its task was to consider whether a "reasonable Tribunal, properly directing itself on the law could, having regard to all the evidence and the findings made, have rationally come to the conclusion under scrutiny." The UT commented that there was no suggested misdirection of law as such in this case, so that the only issue was whether the decision was "within the band of conclusions reasonably open to [the Tribunal] having regard to all the evidence and the findings made."

The UT then summarised the matters that had been considered by the FTT, including the fact that there had been copious citation from SS (Nigeria). The UT's conclusions are set out at paragraph 7 of his decision. It stated:

Mr Alan Payne represented the SSHD on this appeal. We did not need to call on him for oral argument this morning. In his written argument he submitted that there were errors of law by the FTT and by the UT which were material errors. The first error that he identified was that neither Tribunal approached rules 398-399A and Article 8 in the correct manner, as set out by this court in its decision in MF (Nigeria) v Secretary of State Home Department [2014] 1 WLR 544. Secondly, Mr Payne submitted that neither Tribunal gave proper consideration to the very weighty interest that Parliament had expressed in the deportation of foreign criminals (as defined in 2007 Act) as explained in the judgment of Laws LJ in SS (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 998 and as was confirmed in LC China v Secretary of State for the Home Department [2014] EWCA Civ 1310. Thirdly, Mr Payne submitted that neither Tribunal applied the correct test (as set out in MF (Nigeria)) in considering whether the Article 8 rights of the respondent outweighed the public interest in deporting him as a foreign criminal. Fourthly, Mr Payne submitted that the Upper Tribunal erred in concluding that the FTT failed to make adequate findings as to the nature of the respondent's existing family life, or as to its precarious nature.

Mr Hugh Southey appeared for the respondent. Mr Southey took a preliminary point. He submitted that the appeal was out of time and that although Arden LJ had stated in granting permission to appeal that permission was granted in respect of the extension of time, that expression was either a provisional view, which could be challenged, or that this court could revoke it. We indicated to Mr Southey, after he had made his submissions on this preliminary point, that we did not accept it. It is quite clear from the wording of the court's order that Arden LJ had the issue of an extension of time firmly in mind. It is true that she did not give any specific reasons which related to the extension of time. That is perfectly common in these applications for permission to appeal and we do not make any criticism of that. She had the papers in front of her; and we have not doubt that she had all the matters in mind when making this decision. So we reject that preliminary submission.

Dealing with the merits Mr Southey submitted that in this court the SSHD could only argue two points of law. In Mr Southey's submission these two points were (i) whether the UT had erred in concluding that the FTT gave sufficient weight to the public interest in this case and (ii) whether the UT erred in concluding that the FTT gave sufficient reasons for its conclusions.

Mr Southey did, however, accept that this court was bound in the light of this court's decision in MF (Nigeria) to conclude that the FTT had erred in law its approach to rules 398 to 399A and Article 8 because the FTT had considered the Article 8 balance outside those rules, instead of considering the issues as part of "complete code". (I should note at this point that Mr Southey reserved the right to challenge the correctness of MF (Nigeria) in the Supreme Court.)

Mr Southey's principal submission however was that if the FTT made any error of law it was immaterial. That is because, he submitted, the FTT did strike the correct balance on the facts of this case. In this regard Mr Southey relied upon the following particular points: (i) the FTT had cited SS (Nigeria) and so it must be assumed that it had in mind the pressing nature of the public interest in favour of deportation of foreign criminals imposed by section 32(5) of the 2007 Act; (ii) the FTT had considered the countervailing factors such as the respondent was not a danger to the public and also, in particular, the very serious impact on the respondent's children, if he were to be deported. Accordingly, Mr Southey submitted, the UT was entitled to dismiss the appeal from the FTT because the latter had had all the relevant considerations in mind when making its proportionality decision. Even if the SSHD could raise other points, such as the suggestion that insufficient account had been taken of the respondent's full immigration history, that did not demonstrate an error of law by the FTT or by the UT.

Mr Southey emphasised that the FTT was a specialist Tribunal and he submitted that it should not readily be assumed that the FTT failed to consider matters that were obviously relevant to its decision and therefore also relevant to the decision of the UT.

The decision of the Court of Appeal in MF (Nigeria) was handed down on 8th October 2013, that is nearly 2 months after the promulgation of the FTT's decision. The FTT therefore cannot be blamed for following the guidance of the UT in the MF (Nigeria) case. That guidance had been published the previous year. But, as Mr Southey acknowledges, the FTT clearly erred in law in its understanding and application of the 2012 rules as they have been construed by this court in MF (Nigeria). The UT in this case did not refer to this court's decision in MF (Nigeria), which had been handed down some 2 months before the ex tempore judgment of McCloskey J in this case. The UT's failure to refer to MF (Nigeria) in this court is somewhat surprising, considering how important a decision that case was in this particular area of the law.

In MF (Nigeria), Lord Dyson MR, giving the judgment of the court, made it plain that paragraph 398 to 399A of the 2012 rules were intended to cover the ground previously occupied by the case law concerning the application of Article 8 in the context of deportation of what have become known as "foreign criminals". The 2012 rules are "a complete code" for a person who is faced with deportation under the 1971 and 2007 Acts and who claims that this deportation would be a breach of his Article 8 rights - see paragraph 44 of the court's judgment.

It is accepted by the respondent's in the present appeal that he does not meet any of the requirements of rules 399 or 399A. Therefore, if a person is within one of three categories identified in rule 398, as this respondent is, his deportation will be conducive to the public good. In such circumstance, as this court stated at paragraph 40 of MF (Nigeria), when a Tribunal undertakes the balancing exercise that has to be performed when considering Article 8, great weight has to be given to deporting foreign criminals. It is only exceptionally that foreign criminals will succeed in showing that their rights under Article 8.1 trump the public interest in deportation.

This point was further emphasised by the court in MF (Nigeria) in the succeeding paragraphs of the same judgment in two ways. First, this court endorsed the decision of Sales J (as he then was) in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) that in cases where the position in the UK of the person threatened with deportation is "precarious", ie he has no legal right to be in the UK, it is likely to be only in most exceptional circumstances that his removal will be a violation of Article 8 - see paragraph 42.

Secondly, at paragraph 43, this court stated that:

In this case the FTT clearly erred in law and for one reason or another that error was not connected by the UT. The in itself therefore committed an error of law in its approach to how the Article 8 balancing exercise should be considered in the context of rule 398 to 399A of the 2012 Immigration Rules. For my part, I cannot follow the argument that this error of law cannot now be relied upon by the Secretary of State. The key question is whether this was a material error of law. In my judgment, there was. Although the FTT made copious references to this court's decision in SS (Nigeria), in my judgment, it paid only lip service to the very important principle that was reaffirmed in that case. The principle is that great weight has to be attached to the fact that Parliament has, in the terms of sections 32 and 33 of the 2007 Act, laid down, by primary legislation, a policy whose aim is protection of the public and the reflection of the public's proper condemnation of serious wrongdoers - see paragraph 53 of Laws LJ's judgment in SS (Nigeria). That fact places in the "proportionality scales" a markedly greater weight than other factors. This has a particular consequence when a Tribunal also has to take into account the effect of deportation on the children of the person threatened with the removal. Laws LJ reviewed the case law on removal Article 8 and the interests of children. He concluded, at paragraph 55, that in a removal decision the interests of the child are matters of "substantial importance".

The Tribunal considering the matter must have a proper understanding of the facts which illuminate the interests of children involved. Thus the more pressing the interest in deportation or removal for other reasons (such as extradition), the stronger the claim must be under Article 8 if those countervailing interests are to prevail.

In my judgment, despite the brave attempts of Mr Southey to argue to the contrary, the FTT started its consideration at the wrong end. It started with a consideration of the respondent's "strong family life" and the effect on his partner and in particular on the well being of his children of him being deported. The FTT should have started with the primacy of the statutorily expressed public policy of removing foreign criminals, as stated in the 2007 Act. With great respect to the UT, it also did not approach the matter from the correct view point, in the light of SS (Nigeria) and the decision of this court in MF (Nigeria).

For my part I cannot be satisfied that if the FTT or UT had approached the matter in the correct way, they would have come to the decision that they did. This is because neither Tribunal took properly into account three factors in particular: first, the extended and serious criminal record of the respondent. In this regard, it is clear that His Honour Judge McKinnon considered the offences of 2009 as serious - see his remarks. Secondly that the respondent's position in the UK has always been "precarious", and that he has taken active steps to ensure that his true identity has never been revealed until found in 2009. As a consequence, he has managed to remain in the UK unlawfully for over 20 years. Thirdly, the family life in the UK of the respondent has been developed entirely whilst he has been in this "precarious" condition. Accordingly, I would set aside the decision of the UT.

If this case had to be decided under the 2012 rules then I would have had little hesitation in saying that this court could remake the decision under section 14(1) paragraph (b) (ii) of the Tribunals Courts and Enforcement Act 2007. However, as is clear in YM (Uganda) the 2014 Act and the 2014 rules will have to apply to any remaking of the decisions. Both Mr Payne and Mr Southey agree that this matter must therefore be remitted to a fresh First-tier Tribunal to consider the matter and remake the decision.

I would accordingly allow the appeal.

LORD JUSTICE KITCHIN: I agree.

LADY JUSTICE GLOSTER: I agree.