PF (Nigeria) v The Secretary of State for the Home Department

You pleaded guilty at an early stage of these proceedings to count 1 of conspiracy to supply heroin in April 2009 and count 4, conspiracy to supply heroin in September 2009. Your basis of plea accepts that you are in a managerial role in respect of street dealing. In April 2009 you used an address in Hackney for the storage of heroin and money. You were directing X in the supply of heroin. He was arrested with two packs of heroin and he had a storage facility with four packages of heroin. In September together with Y you used a different address in Holloway as storage for heroin and money. You again were directing the street supply of diamorphine, again attempting … to stay in the background and to avoid detection by the police. Of those which you engaged … was caught with a large amount of cash and some 121 grams of diamorphine on him.

….

Because of your previous convictions and because of your role I am determined that the appropriate starting point would have been at the very top end of the range…, namely one of 8 years. Because of your plea of guilty I am able to reduce that by the full 30%. 30% off 8 years means a sentence of five years and eight months’ imprisonment.

I can confirm that [the Appellant’s] compliance with his licence has been most satisfactory. As part of his sentence plan objectives [the Appellant] has engaged with the Probation Education Training and Employment officer and has gained a place on a mentoring training programme with Catch 22 as [the Appellant] has expressed a keenness to steer ex-offenders to lead pro-social lives using his own experiences as a valid testimony.

In addition [the Appellant] is attending Newham College on a part time basis where he is studying business management.

… Since the commencement of his licence, he has not been charged with further offending and has expressed a determination to become a law abiding citizen. I am in support of [the Appellant] to remain in the UK to enable him to continue with his rehabilitation.

Whilst I fully accept there is evidence upon which a decision could be made in what is a finely balanced decision to uphold deportation order, I find that on the peculiar facts of this case there are sufficient signs that the Appellant is sincere about setting his case against his previous criminal conduct that he has effectively been in the United Kingdom for a significant period of time, over 20 years, and that the detrimental effect on his children and partner outweigh the benefit to the public of him being removed from the jurisdiction.

I disagree with Mr Getlevog on the fundamental assessment that removing this Appellant in the midst of ongoing rehabilitation serves the public good and that the public good is served by the effective destruction of this family. The destruction of the family may not have an immediate consequence to society but they will almost certainly be a cost in the long term. A fundamental principle sentencing is the basic recognition that rehabilitation is an intrinsic part of sentencing. The deportation of this appellant would effectively remove that aspect of sentencing has been subordinate to the overwhelming need to prevent disorder and crime. My view is that this appellant has shown sufficient signs of rehabilitation to demonstrate that his removal is not necessary to maintain deterrent sentencing or show public revulsion for the crimes he has committed. Rehabilitation is an equally and some would argue more effective tool to combat crime.

The desire for rehabilitation is of a fundamental principle sentencing which also if one is looking at deterrence and public revulsion as a prime mover behind immigration policy than the public interest also recognises the potential for rehabilitation that exists in every criminal, no matter how serious the crime that they have committed. Given the balancing act and the fundamental difference of opinion I conclude that my decision as Immigration Judge prevails given my assessment and interpretation of the law.

Conclusion

I therefore allow this appeal for the reasons stated above under [Article] 8 as I find that the appellant’s removal would place the United Kingdom in breach of its international obligations.

In light of your client’s allowed appeal of 10 July 2013 against his deportation, he will be granted Limited Leave to Remain in the UK. This leave will be issued on a Biometric Residence Permit. I would be grateful if you could advise your client of the following:

This letter is not evidence of your leave to remain in the United Kingdom, of right to work or of entitlement to benefits.

You are required to enrol biometric information (scanned fingerprints and photograph) in order to obtain a Biometric Residence Permit…

The Biometric Residence Permit is the official document issued by the UK Border Agency to confirm your immigration status in the United Kingdom. Please complete the enclosed application form .…

Details of how to enrol your client’s biometric information will be sent to you once we receive your client’s completed forms.

Please convey the contents of this letter to your client. This letter entitles the applicant to a fee-free biometric enrolment at the Post Office Limited.

Dear Mr F,

As part of your process for granting you leave you must have your biometric information (scanned fingerprints and photographs) taken. This letter in itself confers no leave to enter or remain in the United Kingdom and does not constitute proof of your immigration status …

Even though the Home Office has agreed to grant you leave to remain in the United Kingdom, it is only the Biometric Information Residence Permit that constitutes proof of your immigration status in the United Kingdom and this permit cannot be issued until you have enrolled your biometric information …

… It is only the Biometric Residents Permit that constitutes proof of your immigration status in the United Kingdom.

Things got as far as the Respondent having his electronic tag removed and the Home Office writing to the Respondent to inform him we would be granting him Limited leave. It is clear that an admin error cropped up with SAT [Specialist Appeals Team] and CCD [Criminal Casework Directorate] not communicating effectively.

The Appellant’s legal representative was informed that the appeal would be pursued.

That this was highly unsatisfactory per se is beyond plausible argument. To this we must add the comment that it is truly remarkable that the Secretary of State’s representative, against the background documented above, was unable to confirm the authenticity of the Secretary of State’s letter of 9 September 2013 and, evidently, doubted its authenticity to the extent that the hearing had to be adjourned. From every perspective, this was frankly astonishing. Furthermore, it gave rise to a period of pre-eminently avoidable delay and a grave waste of Tribunal time and public resources. This must be deprecated in the strongest terms.

I entirely agree.

I apologise for the administrative errors that have occurred in your client’s case and for any inconvenience and misunderstanding that has been caused. At present the Home Office will await the outcome of the proceedings at the Upper Tier Tribunal before making a decision on how to proceed in your client’s case. Again I apologise for the error …

Whether the Secretary of State’s appeal to the Upper Tribunal was deemed to have been abandoned.

Whether to permit the appeal to proceed would unlawfully frustrate a substantive legitimate expectation on the part of the Appellant generated by the conduct of the Secretary of State’s agents following the determination of the First-tier Tribunal.

As a matter of fact, the Secretary of State subsequently reneged on the representation made. The promise, or assurance, was withdrawn. This gives rise to an interface between the personal interest of the [Appellant] and the public interest. Our second main conclusion is that, in the particular matrix of this appeal, the public interest must prevail. This conclusion has several elements. The first is that the representation made was the product of pure, genuine error: the Secretary of State’s left-hand did not know what the right is doing. Secondly, the [Appellant] gained a sheer, undeserved windfall in consequence. Thirdly, the representation was withdrawn speedily: its lifespan was confined to approximately one month. Fourthly, the representation was made in circumstances where the Secretary of State was entitled by statute to continue to challenge the decision of the FtT. Such efforts were in fact continuing and no relevant time limit had expired. Moreover, the period during which the [Appellant] and his legal representatives were unaware of this continued challenge was short lived, confined to some 2 weeks, ending with the date on which the Upper Tribunal’s decision to grant permission to appeal was received: within some few days of the date of the Notice of Decision, 13 September 2013. Fifthly the grant of permission to appeal to the Secretary of State establishes that the Secretary of State’s continuing challenge to the decision of the FtT was not speculative or formulaic. Rather, it was serious in nature was judicially adjudged to possess sufficient merit to overcome the relevant threshold. Finally, we consider that the decision of the FtT is so unsatisfactory that it should properly be reviewed by the Upper Tribunal.

…

To summarise, the [Appellant] was a fortuitous and undeserved beneficiary of a short lived, genuine administrative error. We consider that his good fortune must bow to the significant public interests identified above. We are satisfied that to give effect to the Secretary of State’s withdrawal of the representation made will not be so unfair to the [Appellant] as to countenance and sustain a misuse of public power. In the particular circumstances of this appeal, the public interest must prevail.

If the decision of the Tribunal is not unanimous, the decision of the majority is the decision of the Tribunal; and the presiding member has a casting vote if the votes are equally divided.

Since Article 8 of the 2008 Order provides that the decision of the majority is the decision of the Tribunal (and that the presiding member has a casting vote), where the jurisdiction of the Tribunal is exercised by more than one member the resulting determination or other decision will not express any dissenting view or indicate that it is of a majority.

… We consider that the decision of the FtT is infected by two further errors of law. The first is that, in our estimation, the proper course of the panel was to have the appeal considered by different, reconstituted panel. As a matter of good practice, where differences of opinion between panel members are as acute and fundamental as those disclosed in the determination under scrutiny in this appeal, we consider that the panel should proceed no further. While this will have regrettable costs and delay implications, such cases are likely to be very rare.

In the particular context of this case, we consider that the panel’s failure to stop, adjourn and reconstitute was erroneous in law. The final malaise in the FtT’s determination is that it offends the fundamental principle that justice must not only be done, but must manifestly and undoubtedly be seen to be done. Citation of authority for this principle is unnecessary. The determination of the FtT makes for disturbing reading. Its contents disclose a judicial decision-making process and outcome which we consider inimical to the rule of law. This decision cannot be permitted to stand in the contemporary legal culture which places such emphasis on appearances and due process.

Given our profound concerns about what transpired at first instance, we consider that the appeal should be remitted for fresh consideration and determination by the FtT. This exercise will be undertaken by differently constituted FtT.

Article 8 of the 2008 Order confers power on the presiding member to exercise a casting vote. That power is only exercisable when the members of the tribunal are divided as to the outcome of the appeal before them. Any such disagreement is fundamental, in the sense that it goes to the success or failure of the appeal. The presiding member of the panel made no error of law in exercising his casting vote, which is precisely what the 2008 Order envisages and authorises.

The failure to comply with paragraph 10.2 of the Practice Statements was not a material error, since it did not affect the outcome of the appeal, i.e., the decision of the First-tier Tribunal to allow the Appellant’s appeal.

The Secretary of State’s contentions as to the substance of the determination of the First-tier Tribunal amounted to no more than a difference of assessment as to the proportionality of the deportation of the Appellant under Article 8.2 of the Convention, and demonstrated no legal error on the part of the First-tier Tribunal. It followed that the Upper Tribunal should not have set aside the determination of the First-tier Tribunal.

The First-tier Tribunal had erred in law, in that the presiding member failed to consider whether or not it was appropriate to exercise his casting vote. In any event, given the extent of the differences between the members of the panel, the presiding member had erred in law in proceeding to exercise his casting vote. The only proper course in the circumstances was to adjourn the appeal to be heard by a differently constituted panel.

The First-tier Tribunal Judge had erred in law in justifying his exercise of the casting vote on the basis of his “assessment and interpretation of the law” (paragraph 93 of the determination, quoted above). The differences between the Judge and the lay member were not in the main differences as to the law, but as to the primary facts, the inferences to be drawn from them, and of the evaluation of Article 8 rights in the light of the primary and secondary factual findings.

The First-tier Tribunal’s failure to comply with paragraph 10.2 of the Practice Direction was a material error of law.

The decision of the First-tier Tribunal was inconsistent with the correct legal approach to deportation, set out in the judgments of the Court of Appeal in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550, [2014] 1 WLR 998, MF (Nigeria) v SSHD [2013] EWCA Civ 544 [2014] 1 WLR 998, in YM (Uganda) v SSHD [2014] EWCA Civ 1292 and SE (Zimbabwe) v SSHD [2014] EWCA Civ 256.

The First-tier Tribunal erred in law in taking into account the effect of the deportation of the Appellant on his rehabilitation: see SE (Zimbabwe) at [43] to [56].

The First-tier Tribunal Judge failed to identify why the circumstances of PF’s case were so exceptional that deportation would be disproportionate.

The Upper Tribunal had been wrong to consider the issue of legitimate expectation, which was extraneous to the statutory jurisdiction of the Upper Tribunal, which was to determine whether the First-tier Tribunal had made a material legal error. Nonetheless, “As permission has been granted for a second appeal on this point, and no objection was apparently taken to the point being raised below, and it is not clear from the UT’s reasons how the point came to be argued or how it was argued, the SSHD does not, at this stage, actively submit that this Court ought not to rule on it. But she reserves her position on the correctness of the course of action taken by the UT.”

In any event, the Upper Tribunal rightly rejected the Appellant’s contentions based on his legitimate expectation.

The Secretary of State’s representations were made entirely in error. Where the court is satisfied that a mistake was made, it should be slow to fix the public authority permanently with the consequences of the error: R v Department for Education and Employment ex parte Begbie [2000] 1 WLR 1115 at 1127B-D.

The information that the Secretary of State wished to pursue her appeal must have disappointed the Appellant and his family. However, the expectation engendered by the representations cannot have lasted more than 9 days, and not the one month referred to by the Upper Tribunal at paragraph 17 of its determination. The first representation regarding the potential grant of leave to remain was in the letter of 9 September 2013. On 13 September the Upper Tribunal granted permission to appeal and sent its decision to both parties. In any event, on 18 September 2013, the Appellant’s legal representatives were informed that there had been an error in internal communication which had resulted in the letter of 9 September being sent and that the appeal would be pursued.

There was no evidence of detrimental reliance on the Secretary of State’s representations.

There is a strong public interest in the issue of the Appellant’s deportation being decided on its merits.

There is according to the Immigration Rules however a presumption in favour of deportation which can only be discharged in exceptional circumstances and following the jurisprudence under Article 8.

Mr Bonavero submitted that it followed that the First-tier Tribunal had applied the correct test. Disagreement as to the weight to be given to the various relevant factors considered by the Tribunal did not amount to an error of law.

42 At para 40 [of his judgment in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin)] Sales J referred to a statement in the case law that, in "precarious" cases, "it is likely to be only in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of art 8". This has been repeated and adopted by the ECtHR in near identical terms in many cases. At paras 41 and 42, he said that in a "precarious" family life case, it is only in "exceptional" or "the most exceptional circumstances" that removal of the non-national family member will constitute a violation of article 8. In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual's article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be "exceptional") is required to outweigh the public interest in removal. In our view, it is no coincidence that the phrase "exceptional circumstances" is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals.

43 The word "exceptional" is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the "exceptional circumstances".

44 We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence.

SE is a violent offender, who has made good progress towards rehabilitation. At the time of sentence, his risk of re-offending was assessed as high. That risk is now assessed as medium. It is reasonable to suppose that if SE is deported to Zimbabwe, he will not receive the same level of support and assistance in continuing his rehabilitation process. However, it is also right to note that there was no evidence about this because the issue was not raised; the observation of the Upper Tribunal on the point was really in the nature of an aside.

From that point of view, it may be thought that it is desirable for SE to remain in the UK, so that he can access the services of probation officers and other professionals. On the other hand, in the general run of cases, I do not think that this is a valid consideration under article 8 of ECHR. The prospective deportee cannot say:

“I am a criminal. I am only part way through the process of rehabilitation. If I remain in the UK, I will probably become reformed with the help of probation officers and other professional staff. If deported to my home country, I am likely to return to my criminal ways. Therefore I should stay here.”

In my view, absent exceptional circumstances, this is not a valid argument. The offender cannot rely upon his own partially unreformed criminality as a factor relevant to either his family life or his private life.