Secretary of State for the Home Department v MA (Somalia)

This case concerns the proposed deportation of the respondent, MA, pursuant to the automatic deportation provisions of the UK Borders Act 2007 (“the 2007 Act”) by reason of his conviction in 2007 for offences of rape and attempted rape, for which he was sentenced to 10 years’ imprisonment. His appeal against deportation was allowed by the First-tier Tribunal (“the FTT”) on Article 8 ECHR grounds. The Secretary of State’s appeal to the Upper Tribunal (“the UT”) against the FTT’s determination was dismissed. The Secretary of State now appeals to this court, with permission granted by Patten LJ, against the UT’s determination.

It is common ground in this court that the FTT erred in law by considering Article 8 outside the relevant provisions of the Immigration Rules, namely paragraphs 398-399A: it was held in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 WLR 544 that those paragraphs constitute a complete code for the application of Article 8 in this context. The issue between the parties on the Secretary of State’s appeal is whether it was a material error for the tribunal to approach the matter in the way it did.

An altogether separate issue, raised by way of a respondent’s notice on behalf of MA, is whether the UT lacked jurisdiction to hear the appeal from the FTT because a condition precedent to the grant of permission to appeal was not satisfied, which raises a further question as to the jurisdiction of this court to entertain the issue in the context of the present appeal. Although that is strictly a threshold point, it does not get off the ground on the facts and I will therefore defer consideration of it until I have considered the Secretary of State’s appeal.

MA was born in March 1982 or March 1984 and is therefore 30 or 32 years of age. He originates from northern Somalia. In 1988 he fled with his family to Ethiopia. In 1990 his mother entered the UK with MA’s younger brother. MA and two other siblings joined them in February 1993. His father arrived just over a year later. Three further children of the family were born subsequently. The entire family was granted exceptional leave to remain and then, in June 2000, indefinite leave to remain. By 2004 all the members of the family had gained British citizenship save for MA, who had not applied.

The offences that triggered the deportation order were committed by MA in 2006. He attacked a pregnant woman when she was asleep in her own bed; he held a knife to her throat, threatening to kill her, while he raped her and committed a further offence of attempted rape. He was released from custody in December 2011. The decision to deport him was served in January 2013. It is proposed to remove him to Somaliland. There is no dispute that he is liable to deportation under section 32 of the 2007 Act, as a foreign criminal who has received a sentence of imprisonment of at least 12 months, unless removal would be in breach of his Convention Rights or the UK’s obligations under the Refugee Convention.

On MA’s appeal against the deportation decision, the FTT first rejected an asylum claim. It then considered the case under paragraphs 398-399A of the Immigration Rules. At that time paragraph 398 provided in material part:

“398.

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 because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

…

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.”

Neither paragraph 399 nor paragraph 399A applied in this case and the tribunal found that the circumstances were not “exceptional” for the purposes of paragraph 398. As appears from paragraph 16 of its determination, it approached the issue of exceptionality on the basis that exceptional cases should be numerically rare and that a case is not exceptional just because the exceptions to deportation in paragraph 399 or paragraph 399A have been missed by a small margin. “Instead, ‘exceptional’ means circumstances in which deportation would result in unjustifiable harsh consequences for the individual or their family such that deportation would not be proportionate. That is likely to be the case only very rarely”.

Having found that the circumstances were not exceptional for the purposes of paragraph 398, the tribunal took the view that it should nevertheless go on to consider whether MA’s deportation would amount to a breach of Article 8. It reminded itself that exceptionality is not the test under Article 8. It then said:

“25.

In addition, we have reminded ourselves of the case of R (on the application of Razgar) v Secretary of State for the Home Department [2004] UKHL 27 and the need to consider all the separate elements of Article 8 before reaching a final decision. It was not disputed at the appeal hearing that the Appellant has lived here for more than 20 years and lives with close relatives and has very regular contact with his parents and siblings. Taking this and the totality of the evidence into account and applying a balance of probabilities we find it would be a breach of Article 8(1) of the ECHR to deport the Appellant to Somaliland. However, we have also taken into account that, for the purposes of Article 8(2), the Appellant is liable to automatic deportation under Section 33(5) of the UK Borders Act 2007. In addition, we accept that the United Kingdom is entitled to impose strict immigration controls to protect the public interest in the prevention of disorder and crime and the protection of the rights and freedoms of others.”

The tribunal stated that it was for the Secretary of State to establish that MA’s deportation would be proportionate. It started its consideration of the proportionality balance by considering his criminal record, referring to the index offending and stating that it did not seek to minimise its seriousness. It continued:

“27.

We have also taken into account the case of Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 00046 and note that in a case of automatic deportation, full account must be taken of the strong public interest in removing foreign citizens convicted of serious offences, which lies not only in the prevention of further offences on the part of the individual concerned but in deterring others from committing them in the first place ….”

The tribunal said that the starting point was the judge’s sentencing remarks. It took into account the circumstances of the offence and the fact that MA did not acknowledge his guilt at trial or while serving his sentence and therefore did not show remorse for a considerable time.

In paragraphs 28-31 the tribunal found that it was shame and the fear that he would be disowned by his family that led MA to refuse to accept his guilt during that period. It observed, however, that since his release he had accepted his guilt and had been focusing on victim empathy work. His probation officer assessed him as posing a medium risk of harm with a low to medium risk of reoffending. A psychiatric report noted that he had voiced regret and remorse about the offence and there was now a low risk of him committing further serious violent or sexual offences. He had not breached the terms of his immigration bail which included an electronic tag and curfew requirement. He was now living with an uncle and family and was no longer mixing with the friends he had previously associated with. He spent much of the time permitted under the terms of the curfew caring for his mother’s aunt who suffered from numerous ailments, had frequent falls and very impaired mobility. The tribunal found that it must take a considerable amount of dedication to care for her on a daily basis. Account was taken of the fact that MA had been fined for an offence of possession of cannabis committed while he was on release on licence, but the tribunal noted that he had since completed a drug awareness course and had tested negative for any further use. It evidently did not attach much weight to that offence or to a very small number of minor infringements of Prison Rules while MA was in custody. It took into account the qualifications he had obtained in prison and that he would be in a better position to obtain skilled employment in the future.

The tribunal went on at paragraphs 32-36 to consider a variety of factors that weighed in the balance in MA’s favour. I should quote paragraph 33 because it featured specifically in argument before us:

“33.

We also note that in Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 00046 it was found that where a settled migrant who has lawfully spent the major part of his childhood and youth here, there need to be very serious reasons to justify expulsion. In this case, the Appellant committed one, albeit, very serious offence, he has been here for over 20 years, all his close family members are British citizens, he has shown remorse, is working hard to address his offending behaviour and spends his time caring for an elderly and disabled relative. In considering these factors, we have also taken into account the decisions in Uner v the Netherlands Application no. 46410/99 and Maslov v Austria [2009] INLR 47 ECHR.”

Remorse and the risk of reoffending had already been covered in earlier paragraphs. In these further paragraphs, taken as a whole, the additional factors considered were in summary as follows:

Taking the totality of the circumstances, the tribunal concluded at paragraph 37 that it would be disproportionate and a breach of Article 8 to deport him.

On the Secretary of State’s appeal to the UT from that determination, Upper Tribunal Judge Perkins dealt first with the validity of the grant of permission to appeal. He then examined the merits of the appeal. He rejected the contention that the FTT ought to have treated the relevant rules as a complete encapsulation of the UK’s obligations under the ECHR. He examined the FTT’s reasoning under Article 8 and, although making some minor criticisms of it, found no material error in it. He said that the tribunal identified the two competing compelling points: on the one hand, the seriousness of the offence, bringing with it a statutory presumption in favour of deportation; and on the other hand the amount of time MA had spent in the UK, together with the finding that he was unlikely to be in this kind of trouble again. He said that “[t]his may well be the kind of case where the balancing exercise could have been determined differently and lawfully by a differently constituted Tribunal” but he was not persuaded that the FTT had misdirected itself in any material way or reached a decision that was not open to it for the reasons it had given.

It is, as I have said, common ground that the FTT erred in law in considering the application of Article 8 outside the Immigration Rules. The FTT’s approach accorded with the case-law as it existed at the time of its decision but its approach has been shown to be wrong by the judgment of the Court of Appeal in MF (Nigeria) (see paragraph 2 above). In that case Lord Dyson MR, giving the judgment of the court, said this:

“40.

Does it follow that the new rules have effected no change other than to spell out the circumstances in which a foreign criminal’s claim that deportation would breach his article 8 rights will succeed? At this point, it is necessary to focus on the statement that it will only be ‘in exceptional circumstances that the public interest in deportation will be outweighed by other factors’. Ms Giovanetti [for the Secretary of State] submits that the reference to exceptional circumstances serves the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who do not satisfy paragraphs 398 and 399 or 399A. It is only exceptionally that such foreign criminals will succeed in showing that their rights under article 8.1 trump the public interest in their deportation.

41.

We accept this submission ….

42 … [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 [criminal] to whom paragraphs 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 ….”

Mr Southey QC, for MA, accepts that this court is bound by MF (Nigeria) but he reserves the right to argue on any further appeal that that case was wrongly decided.

It follows from MF (Nigeria) that MA’s case should have been considered only within the Immigration Rules and on the basis that the scales are heavily weighted in favour of deportation and that something very compelling is required to outweigh the public interest in deportation.

The great weight to be attached to the public interest in the deportation of foreign criminals in automatic deportation cases had already been emphasised in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550, where Laws LJ drew attention to the relevant provisions of the 2007 Act and observed at paragraph 54:

“The pressing nature of the public interest here is vividly informed by the fact that by Parliament’s express declaration the public interest is injured if the criminal’s deportation is not effect. Such a result could in my judgment only be justified by a very strong claim indeed.”

Drawing on MF (Nigeria) and SS (Nigeria), this court has repeated in subsequent cases the “great weight” to be attached to the public interest in deportation in this context: see HA (Iraq) v Secretary of State for the Home Department [2014] EWCA Civ 1304, at paragraph 28, and LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310, at paragraph 17.

The reasons why it is important to assess the matter within the Immigration Rules rather than outside them were spelled out by Sales LJ in Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636:

“39.

The fact that the new rules are intended to operate as a comprehensive code is significant, because it means that an official or a tribunal should seek to take account of any Convention rights of an appellant through the lens of the new rules themselves, rather than looking to apply Convention rights for themselves in a free-standing way outside the new rules ….

40.

The requirement that claims by appellants who are foreign criminals for leave to remain, based on the Convention rights of themselves or their partners, relations or children, should be assessed under the new rules and through their lens is important, as the Court of Appeal in MF (Nigeria) has emphasised. It seeks to ensure uniformity of approach between different officials, tribunals and courts who have to assess such claims, in the interests of fair and equal treatment of different appellants with similar cases on the facts. In this regard, the new rules also serve as a safeguard in relation to rights of appellants under Article 14 to equal treatment within the scope of Article 8. The requirement of assessment through the lens of the new rules also seeks to ensure that decisions are made in a way that is properly informed by the considerable weight to be given to the public interest in deportation of foreign criminals, as declared by Parliament in the 2007 Act and reinforced by the Secretary of State (as the relevant Minister with responsibility for operation of the immigration system), so as to promote public confidence in that system in this sensitive area.”

It is also relevant to note how Sales LJ approached the issue of materiality of the errors of law in the two cases under consideration in that judgment. In relation to the appellant AJ (Gambia), the UT had committed much the same error as in the present case by separating out consideration of “exceptional circumstances” under paragraph 398 from consideration of the claim under Article 8. This was found to be a material error, for the following reasons:

“44.

This was a material error of law. As a result of it, the Upper Tribunal failed to assess the appellant’s Article 8 case through the lens of the new rules and failed to give full and proper weight to the public interest in the deportation of the appellant, as a foreign criminal. The Upper Tribunal made no reference to the declaration of the public interest set out by Parliament in primary legislation, in sections 32 and 33 of the UK Borders Act 2007. Such references as the Upper Tribunal did make to the public interest in removal of the appellant … failed to recognise the strength of that public interest. The Upper Tribunal failed to ask itself whether there were ‘very compelling reasons’ such as to outweigh the strong public interest in deportation: see MF (Nigeria) at para [43].

45.

Moreover, as a consequence of its error, the Upper Tribunal did not make a proper assessment of the impact of the judgment of the Grand Chamber of the Court of Human Rights in Maslov v Austria. At para [46] of its decision, the Upper Tribunal highlighted para [75] of the judgment of the Grand Chamber, in which it says that in relation to a settled migrant of the kind described there, ‘very serious reasons are required to justify expulsion’. The Upper Tribunal did not attempt to integrate this guidance within the framework of the new rules, but rather treated it as a free-standing matter of assessment for itself in relation to which it appears to have regarded the relevant approach to be one which imposed a heavy onus on the Secretary of State to show ‘very serious reasons’ justifying expulsion.

46.

In my view, the Upper Tribunal should have approached the assessment of the claim under Article 8 by application of the new rules, and in particular … by asking itself whether there were very compelling reasons, within the ‘exceptional circumstances’ rubric in paragraph 398, to outweigh the strong public interest in deportation in the appellant’s case. In addressing that question, the Upper Tribunal should, of course, have given due respect to the guidance from the Grand Chamber in Maslov at para [75] of the judgment (reading it in the context of the general guidance given by the Grand Chamber at paras [68]-[76] of the judgment), but as a matter to be brought into the overall assessment and balanced against the strong public interest in deportation to which the UK Borders Act 2007 and the new rules give expression ….”

Sales LJ observed that in relation to the appellant AJ (Angola) the decision of the UT was still more vulnerable since the tribunal did not refer to the new rules at all. He said that the error was clearly a material one. He went on:

“49.

… There are two categories of case in which an identified error of law by the FTT or the Upper Tribunal might be said to be immaterial: if it is clear that on the materials before the tribunal any rational tribunal must have come to the same conclusion or if it is clear that, despite its failure to refer to the relevant legal instruments, the tribunal has in fact applied the test which it was supposed to apply according to those instruments The present case does not fall within either of those categories.”

I do not regard those categories as exhaustive but the general approach of Sales LJ towards the two cases under consideration in AJ (Angola) provides a useful touchstone against which to measure the question whether there was a material error by the FTT in the present case. To that question I now turn.

In this case, as already noted, the FTT did first consider the matter under the relevant paragraphs of the Immigration Rules, finding that MA did not satisfy them and in particular that the circumstances were not exceptional for the purposes of paragraph 398. Since the tribunal’s understanding of “exceptional circumstances” for the purposes of that paragraph was plainly flawed, no significance attaches to that finding and it can be put on one side. The question is whether, in the separate assessment it then made under Article 8, the tribunal’s approach was in substance the same as required by paragraph 398 properly understood.

Mr Southey places particular reliance on paragraphs 25 and 27 of the tribunal’s determination, which I have quoted above, as demonstrating that the correct approach was adopted. In those paragraphs the tribunal referred to the statutory regime governing automatic deportation and said that full account must be taken of the “strong public interest” in removing foreign citizens convicted of serious offences. Mr Southey points out that “strong public interest” was the language used, for example, by Sales LJ when referring to the correct approach at paragraph 46 of his judgment in AJ (Angola). The tribunal also made proper reference to the seriousness of the offences (it referred repeatedly to the “offence” but plainly had in mind the incident as a whole, involving the offences of rape and attempted rape). Proper weight was therefore given to the public interest in deportation. The tribunal went on to examine factors weighing in MA’s favour, in particular those identified in Maslov v Austria. In so doing, it was asking itself in substance whether there existed the very compelling circumstances required to outweigh the public interest in deportation.

I do not accept those submissions. In my judgment, Miss Grange, on behalf of the Secretary of State, is correct in the criticisms she makes of the tribunal’s decision. In particular:

In summary, the tribunal’s failure to look at the case through the lens of paragraph 398 as interpreted in MF (Nigeria) led it to adopt an insufficiently rigorous approach towards the Article 8 assessment. It did not apply the substance of the test required to be applied under paragraph 398. The decision it reached cannot be said to have been the only decision open to a rational tribunal on the evidence before it. It follows that the tribunal’s error in considering the case outside the Immigration Rules was a material error of law.

The issue raised by the respondent’s notice relates to the UT’s grant of permission to appeal from the FTT. It was argued before the UT that it should set aside the grant of permission because a mandatory condition precedent to the grant of permission was not satisfied. The condition precedent in question is explained below. The UT held that it did not have the power to set aside the grant of permission. MA seeks to appeal against that decision, contending that the UT had the power and should have exercised it. The Secretary of State contends that this court lacks jurisdiction to entertain such an appeal.

The rival arguments engage some potentially knotty issues concerning the jurisdiction of the UT and of the Court of Appeal, having regard in particular to the provisions of sections 10, 11 and 13 of the Tribunals, Courts and Enforcement Act 2007. After hearing Mr Southey’s submissions, however, we took the view that his challenge fell at the first hurdle and that it was unnecessary to go any further. We therefore did not call on Miss Grange to reply to his submissions. I will limit myself below to the first stage of the argument advanced by Mr Southey and why it fails.

The starting-point is that the Secretary of State was out of time in applying to the FTT for permission to appeal against its determination. The determination was promulgated on 31 May 2013. The deemed date of receipt was two working days after promulgation, namely 3 June 2013, but it was not actually received by the Secretary of State until 4 June. The application for permission to appeal should have been lodged within five working days: if one works from the date of actual receipt of the determination, it should have been lodged by 11 June. It was not in fact lodged until 12 June, one day late. The reasons given in support of an application to the FTT for an extension of time were these:

“The main reason for delay was because the Specialist Appeals Team on behalf of the Secretary of State did not receive the Tribunal’s determination within two working days. It is respectfully submitted that the delay has been through no fault of the Secretary of State and the Specialist Appeals Team have endeavoured to deal with this case as soon as possible.”

That explanation is criticised by Mr Southey as being misleading or inadequate because it did not draw attention to the fact that the submission of the application took more than five working days, the period allowed by the rules.

In declining to admit the application, the FTT stated that it should have been received by 11 June and “[t]here is no explanation for this delay or application to extend time”.

The Secretary of State then applied to the UT for permission to appeal. That application was made within time. But because the application to the FTT had been out of time, the situation was governed by rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008, which provides:

“If the appellant makes an application to the Upper Tribunal for permission to appeal against the decision of another tribunal, and that other tribunal refused to admit the appellant’s application for permission to appeal because the application for permission or for a written statement of reasons was not made in time –

(a)

the application to the Upper Tribunal for permission to appeal must include the reason why the application to the other tribunal for permission to appeal or for a written statement of reasons, as the case may be, was not made in time; and

(b)

the Upper Tribunal must only admit the application if the Upper Tribunal considers that it is in the interests of justice for it to do.”

Mr Southey submits that the power to admit an application under rule 21(7) is subject to satisfaction of the condition precedent in sub-paragraph (a), that the application “must include the reason why the application to the other tribunal for permission to appeal … was not made in time”. He submits further that the decision whether to admit an application under rule 21(7) is a distinct stage in the procedure and that unless an application is admitted under that rule there is no power to grant permission to appeal: the decision whether to admit an application is akin to a decision whether to extend time. If, therefore, the Secretary of State’s application to the UT did not satisfy the condition precedent in sub-paragraph (a), the UT had no power to admit the application or to grant permission to appeal.

The threshold difficulty faced by those submissions is that the Secretary of State’s application to the UT did include a statement of the reason why the application to the FTT was not made in time. Repeating what had been said in the application to the FTT, it stated:

“The main reason for delay in our application was because the Specialist Appeals Team on behalf of the Secretary of State did not receive the Tribunal’s determination within two working days. It is respectfully submitted that the delay has been through no fault of the Secretary of State and the Specialist Appeals Team have endeavoured to deal with this case as soon as possible. Furthermore, the Secretary of State did notify the First-tier Tribunal of these reasons in our application … and these reasons were not taken into consideration.”

In granting permission to appeal from the FTT’s determination, the UT judge stated:

“The explanation given by the respondent for the delay of one day is in my view a valid one and I consider it just in all the circumstances to extend time [i.e. to admit the application under rule 21(7)].”

Mr Southey again criticises the reason proffered by the Secretary of State, stating that no explanation was given for why it took more than five days to process the matter following receipt of the FTT’s determination. He submits that what was said could not logically be viewed as a reason why the application to the FTT was not made in time and that no rational tribunal could have viewed it as a proper reason within rule 21(7)(a), alternatively that there was no adequate evidential basis for a finding that a reason had been provided.

In my view that submission is untenable. Plainly a reason was given, as required by rule 21(7)(a), for why the application to the FTT was not made in time. The reason may not have been a very good one but it was a reason. It was for the UT to assess the merits of the reason given and to take that into account in deciding whether it was in the interests of justice to admit the application. There was no failure to satisfy a condition precedent to the exercise of the power to admit the application. There is no basis for contending that the UT lacked jurisdiction to admit the application or, therefore, to grant permission to appeal. The elaborate legal argument constructed by Mr Southey on the alleged failure to comply with rule 21(7)(a) has no foundation to it.

It follows, in my judgment, that the Secretary of State’s appeal succeeds and that the UT’s decision to uphold the FTT’s determination must be set aside. Miss Grange realistically accepts that in those circumstances, having regard to the passage of time since the matter was considered by the FTT in May 2013, and to the fact that the case now falls for fresh assessment by reference to paragraph 398 of the Immigration Rules as further modified in 2014, the appropriate course is for us to remit it to the UT for reconsideration.

I agree.

I also agree.