BS (Congo) & Ors v Secretary of State for the Home Department

LORD JUSTICE McCOMBE: We have before us four renewed applications for permission to appeal in factually unrelated cases from the Upper Tribunal (Immigration and Asylum Chamber), although common points arise in each.

The applications were made by the Secretary of State for the Home Department, the unsuccessful party in each of the four cases. Each case concerned a claim by the proposed respondent to the appeal who challenged deportation orders made against him following his conviction of one or more criminal offences. The contest to the deportation order in each case was based upon Article 8 of the European Convention on Human Rights. The proposed appeals to this court would be second appeals. Accordingly, it is necessary for the Secretary of State, as the proposed appellant, to show that each case raises an important point of principle or practice or that there is some other compelling reason why a second appeal should be permitted.

Permission to appeal was refused on the papers in three of the cases by Underhill LJ and in the fourth by Moore-Bick LJ. The matter is now renewed before us by Mr Dunlop on behalf of the Secretary of State, who has made submissions to us this morning.

The three matters that are now raised which are said to satisfy the second appeal criteria are as follows. The Secretary of State submits that the case raises two questions of public importance and that there is over and above that compelling reason to permit a second appeal. The first point of principle that is raised is that it is argued that the application and effect of section 19 of the Immigration Act 2014 fall to be considered on these appeals as to how the matter should be treated if errors of law are identified on the substantive points in the appeal. I will return to that.

Secondly, the Secretary of State wishes to raise the question whether factors covered by paragraphs 399 and 399A of the Immigration Rules 2012 as then applicable in these cases may on their own constitute "exceptional circumstances", justifying an Article 8 claim where the facts of the case do not bring it within the precise parameters of the relevant parts of the paragraphs of the Rules themselves.

The third point, the compelling reason point, is that it is said there are compelling reasons to permit a second appeal because, first, the merits of each case present strong arguments for thinking there are prospects of success on this appeal; secondly, that each of the proposed respondents still presents risks to the public as a convicted criminal; thirdly, Parliament has expressed the wish that foreign criminals should not escape deportation by lenient Article 8 decisions; and fourthly, that this court in other cases has granted the Secretary of State permission to appeal where it has been argued that Article 8 claims have been successful in the Upper Tribunal without due regard to the Immigration Rules.

It is not necessary to set out extensively the facts of the individual cases. The Secretary of State is correct in asserting that each case concerns an individual who has been convicted of offences giving rise to significant sentences of imprisonment, varying between 18 months in the lowest case and 4 years and 8 months in the highest. The offences involved include possession of Class A drugs with intent to supply, conspiracy to defraud and sexual assault. It is the sexual assault case that in fact attracted the lowest sentence in all the four cases.

The public interest in deporting such offenders is obviously a given. The task of the Tribunals was to apply that policy as enshrined in statute with regard to the criteria set out in the Rules which seek to apply Article 8 of the convention. The Secretary of State contends that the Tribunals in each of these cases failed to reach decisions in accordance with the Rules by considering the potential "exceptional nature" of each in a free-standing way without due regard to the principle that the Rules are intended to cover the full ground of Article 8 without more ado or gloss.

In all but one of the cases, however, the Tribunals did make express reference to the Rules themselves and sought to apply the then leading authority in this court on the subject. In the fourth case, no express mention of the 2012 Rules was made to the First-tier Tribunal in its consideration of the Article 8 question, nor was it raised in the Upper Tribunal's decision, perhaps, no doubt, because the points had not been advanced by those appearing before the Tribunals in that case.

I have considered the decisions of the Tribunals in each of these cases, the skeleton arguments in each, each application to the court and Mr Dunlop's most helpful composite skeleton argument drawing the threads together for the purposes of today's renewed application. I do not propose to traverse all the grounds upon which Mr Dunlop criticises the decisions of the Tribunals below, largely because to my mind such criticisms more properly address the criteria that would be applied in applications for permission to bring a first appeal, ie whether the appeal would have a real as opposed to a fanciful prospect of success. I confine myself, therefore, to a consideration of the question whether the true second appeal criteria are satisfied in respect of each case.

The first point of principle that is advanced as a ground for granting permission for the second appeal is the impact of section 19 of the Immigration Act 2014. That statute introduced new sections, 117A to 117D, into the Nationality, Immigration and Asylum Act 2012. Section 117A(1) and (2) provide as follows:

Sections 117B and 117C then set out expressly that the maintenance of effective immigration control is in the public interest and that the deportation of foreign criminals is in the public interest. Each section then sets out a number of criteria that are to be given "little weight" and other criteria affecting the exercise of judgment under Article 8 in the cases of foreign criminals in particular.

When the present cases were before the lower Tribunals, these new provisions were not in force, and, as Underhill LJ said in refusing permission to appeal, in three cases it was impossible to see how the sections could be relied upon in this court to overturn the decisions. The Secretary of State, however, no longer advanced such a direct point as the direct applicability of those new provisions. It is now submitted, in a rather more refined argument, that the sections would have to be considered by this court on the basis that errors of law were identified in the decisions below in considering first whether to remit the case back to the Tribunal or secondly whether to remake the decisions itself in the light of the success on the other branches of the appeal.

In my judgment, with respect to the care with which it was advanced, that more rarefied argument comes close to an attempt to pull oneself up by one's own bootstraps. An absence of retrospectivity in the Act in the legislation cannot in my view be remedied in this way. Nor is it appropriate to have regard to the ultimate consequences of a successful second appeal by reference to the possible consequences or remedies opened up thereafter.

Moreover, in my judgment, no point of principle arises at present on the construction or application of the statute because each new case that is to be considered afresh on new facts before the Tribunals will have the benefit of the statutory criteria which will be considered. I consider that there would be great difficulty in applying the statute, whether in the direct manner originally advanced or in the more refined way that Mr Dunlop now proposes, in cases where these criteria have never been in the minds of the Tribunals dealing with the factual matters below. As Mr Dunlop's careful argument illustrated, there are a number of criteria which go rather beyond the legislative provisions in force to date upon which no lower Tribunal has expressed any opinion in the present cases. I would accordingly reject the first ground for seeking permission to appeal and bring a second appeal in these cases.

I turn to the second ground, the Tribunal's application in these cases of the law relating to exceptional circumstances. In that respect, Mr Dunlop puts the matter this way at paragraph 28 of his composite skeleton argument where he says this:

Mr Dunlop has very helpfully identified the areas in the judgments below in which he argues that principle has not been properly applied. However, I note the meaning that is to be attributed for the purposes of the second appeal test to the phrase "an important point of principle or practice". It means "an important point of principle or practice that has not yet been established": see Uphill v BRB [2005] EWCA Civ 60 per Dyson LJ, as he then was, at paragraph 18 where, giving the judgment of the court, the Lord Justice said this:

As a later part of Mr Dunlop's skeleton argument illustrates (and I refer to paragraph 33), the principles to be applied in cases such as this have been stated and restated for the future, first in the case to which we have all referred during the course of argument MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, and in a number of cases thereafter to which Mr Dunlop refers. The fact that permission has been given to the Secretary of State in some cases such as the present type does not mean that yet further restatement of the relevant principles is required for the elucidation of argument before the Tribunals. I would therefore reject the second of Mr Dunlop's suggested important points of principle.

I turn, therefore, to the question whether "some other compelling reason" is shown why a second appeal should be permitted in any one of the present cases. It is not to be forgotten that second appeals remain exceptional. "Compelling" is a strong word, as Dyson LJ said again in Uphill's case at paragraph 19:

It is of interest to note, as was put to Mr Dunlop during the course of argument, that in none of the case-specific skeleton arguments in support of the four individual applications was it suggested that, if it were not accepted that some important point of principle arose, nonetheless there was some other compelling reason why permission should be granted. I of course accept, as Mr Dunlop explained, his focus in those arguments was upon the points of principle which he submitted arose in each case. Each skeleton argument, however, relied upon the one submission that the case raised issues of public importance. This is clear from the final paragraphs on each of those arguments. It is on the renewed application for permission that the alternative contention of "other compelling reason" is advanced for the first time.

For my part, I do not accept that the mere fact that there are four decisions now challenged means that the threshold of "compelling reason" is reached when it was not advanced as obviously arising in any of the cases individually. When one looks at the individual decisions, it is clear that three of the Tribunals refer expressly to the relevant regulatory regime and seek to apply that regime and the decision of this court in the MF case. It is not, in my view, a compelling reason to permit a second appeal that the losing party can simply contend that he or she has a good prospect of success on appeal in showing that the lower court misapplied the applicable principles. That, to my mind, is no more than to apply the first appeal test.

In the third case, the Tribunal performed a perfectly respectable analysis of the factual situation before it but without express reference to the Rules upon which the Secretary of State now relies so strongly. The Secretary of State was represented throughout the proceedings and in my judgment cannot now advance as a compelling reason for an appeal something that was not raised either before the First Tier, or, more importantly, before the Second Tier on an appeal.

As for the final submissions advanced under this head of the application, the argument to my mind comes close to a contention that whenever the Secretary of State fails to prevail in resisting a challenge to a deportation of a foreign criminal, she must be permitted to have a second appeal of the case to this court. That, in effect, seems to me to be the effect of the arguments advanced in paragraphs 31 to 33 of the composite skeleton argument which were helpfully amplified by Mr Dunlop in his oral submissions.

In my judgment, such an approach would circumvent the second appeals test which applies to all litigants - Government and private litigants alike - and for these reasons, which I have sought to explain as briefly as I can, I would refuse each of these renewed applications.

LORD JUSTICE RICHARDS: I agree.