Tran v Secretary of State for the Home Department

LORD JUSTICE BEATSON: The applicant, Quang Tuan Tran, who does not need to be anonymised and should not be, renews his application for permission to appeal the determination of the Upper Tribunal dated 20 June 2013. The Upper Tribunal dismissed his appeal against the decision of the First-tier Tribunal promulgated on 1 March 2013, which in turn dismissed his appeal against the decision of the Secretary of State dated 13 January 2013. The Secretary of State's decision was a refusal to revoke a deportation order made by the Secretary of State on 6 July 2012 because the applicant is, by reason of his conviction, a foreign national criminal.

The factual background can be summarised as follows. The applicant is a citizen of Vietnam who arrived in the United Kingdom in April 1991 when he was aged just over 17 years. His father had applied for asylum and was granted refugee status when he arrived in this country many years earlier in 1979. The applicant was brought to the UK by his grandmother. His parents' marriage had broken down at some stage, and although his mother was granted leave to enter she decided not to.

The applicant pleaded guilty at the Medway Magistrates' Court to cultivating cannabis and possessing cannabis in 2005 and was committed to the Crown Court for sentence. He was sentenced to 2 years' imprisonment in February 2006, and in October of that year was served with a decision to make a deportation order. He appealed against that decision but that appeal was dismissed by the AIT in a determination promulgated on 11 May 2007. Challenge by way of judicial review was refused on 18 October 2007.

He was then unlawfully at large between November 2007 when he failed to report as required by his bail, and March 2012 when he was encountered and detained. Representations were made on his behalf on 4 April 2012. Those representations were rejected and then on 6 July, as I have stated, the deportation order was made against him.

On 19 October 2012 his representatives applied that the order be revoked. The application was made on the basis of his 23-year residence in the UK and strong family life, including his father and sister and family, who are British citizens. That application was refused by the Secretary of State on 14 January 2013. The applicant lodged an appeal to the Tribunal and the matter came before the Tribunal on 26 February 2013.

The Tribunal referred to the sentencing remarks for the offences of cannabis cultivation, possession of cannabis, and abstracting electricity. It also referred to the fact that the applicant's representatives had informed the Border Agency that he had married Ms Nguyen, a Vietnamese national with indefinite leave to remain, and that her evidence was that she met the applicant in 2007. The Secretary of State's position was that the marriage had happened after the initiation of deportation action against the applicant and in full knowledge of the fact that he had no lawful right of residence. Moreover, the only evidence of the marriage was photographs, and there was no evidence that the applicant resided with the lady in question.

The Tribunal found Ms Nguyen's evidence unsatisfactory and unreliable. They found the evidence of their living together was thin and unreliable, and even if they were married or in a relationship akin to marriage, it was entered into when she was well aware of his criminal conviction and immigration history. As far as his relations with the other adult family members, the Tribunal found that he did not show the additional evidence of dependence beyond normal emotional ties which were required of an adult.

The Tribunal concluded in this case, where the applicant had spent his formative years in Vietnam, that, although he had been in this country for many years, there was nothing in the evidence which persuaded it that he could not safely return to Vietnam where he spoke the language and where Ms Nguyen could join him. It found at paragraph 132 that Article 8 was not engaged in this case and concluded at paragraph 132 that, notwithstanding his medical condition (diabetes and degeneration of his vision as a result of complications because of that), his condition was nowhere near the high threshold required to engage Article 3's prohibition on torture or inhuman or degrading treatment or Article 2's right to life. However, notwithstanding its conclusion that Article 8 was not engaged it went on to consider, if it was wrong and his Article 8 rights were engaged, whether removal would be a proportionate interference with his Article 8 rights at paragraphs 122-125.

The Upper Tribunal accepted that the First-tier erred in relation to the finding that Article 8 was not engaged, but rejected the contention that the First-tier Tribunal did not properly consider proportionality because the decision did not take account of a number of relevant factors and was inadequately reasoned. It found that the First-tier Tribunal's approach to the applicant's medical condition which is set out at paragraphs 29-31 of the Upper Tribunal's decision was not erroneous. It stated that the lengthy account of the applicant's immigration history in the determination was sufficient together with the reference at paragraphs 124 and 125 showed that the First-tier Tribunal had borne his medical condition in mind when coming to its conclusions about proportionality.

Before me, Mr Turner, who appeared in the Upper Tribunal, maintains the two grounds advanced in the Upper Tribunal and in his written submissions. These were that the First-tier Tribunal's approach to Article 8 was fundamentally flawed and that the Upper Tribunal determination was flawed in affirming the First-tier Tribunal's determination. Essentially, he maintained that, given the basic error as to the applicability and engagement of Article 8, the alternative analysis on proportionality did not meet the requirements, for example set out in Razgar, as to the way to balance the interference with the right with the needs of immigration control and policy in this country.

When refusing permission on 7 November 2013, Sir Stanley Burnton stated:

On the written grounds and the way the case was before today, I would not have granted permission. Although the consideration of the alternative proportionality question is succinct, the fact that the finding was made in the alternative does not give rise to an arguable ground of appeal. The appellant's reliance on the failure in paragraph 125 to refer to the various factors such as the length of residence in the United Kingdom, the existence of other family members here, the applicant's poor health and failing eyesight and his relationship with his wife and his risk of re-offending, that he had not committed an offence since that in 2005, is not, in my judgment, itself sufficient. The failure to refer to those factors in paragraph 125 reflects the fact that in paragraph 124 the immigration judges state that "in considering proportionality we take account of the evidence and all the facts found by us are set out in the judgment." There was extensive consideration of, for example, his poor health, the ability to be treated in Vietnam and the relationship with Ms Nguyen in earlier parts of the judgment.

However, the delay in this case coming to a hearing, although the renewal was made in good time after Sir Stanley Burnton's refusal in November 2013, means that the position of the applicant has changed. On 28 July 2014 a daughter was born to him and Ms Nguyen. Fresh representations were made to the defendant (on the basis of his daughter's birth and because his health had declined and he has now lost the sight in one eye) in a letter dated 23 September 2014.

Mr Turner submits that no consideration has been given to the position of the child. He accepts frankly that this cannot really be a criticism of the Tribunal judges because that is a post-decision event. However, he relies on sections 117A to D of the Nationality, Immigration and Asylum Act. In particular he relies on the fact that section 117C(5) provides that, in a case involving foreign criminals, there is an exception to the rule that deportation is in the public interest where the individual has a genuine and subsisting relationship with a qualifying partner or a genuine or subsisting parental relationship with a qualifying child, and the effect of the deportation on the partner or the child would be unduly harsh. A "qualifying child" is defined as a person under 18 who is a British citizen, inter alia. Mr Turner submits that it is the duty of the court to consider this factor (see 117A(1)) and that this odd and highly unusual procedural circumstance justifies permission being given so that the full court can consider whether, in the light of the interpretation of section 117A in the decision of the Upper Tribunal in the case of Dube [2015] UKUT 00090, in which the headnote states that "judges are required statutorily to take into account a number of enumerated considerations," and that, "Judges are duty-bound to 'have regard' to the specified considerations" in sections 117A-117D, the Upper Tribunal erred in this case. The tribunal in Dube's case consisted of Nicol J and Senior Upper Tribunal Judge Storey.

This is a case of a person who has been in this country for all his adult life, who has the medical problems that this applicant has, where his circumstances have changed in the way described since the decisions of the Upper Tribunal. I have concluded, with some hesitation, that it is appropriate for the full court to consider the implications of section 117 to a situation such as this where the factors listed and the exception did not apply at the time of the original decision but do now. It would be a great extension of the normal principle that decisions are not erroneous in law on the basis of circumstances that postdate them, but the wording of 117A(1) directs a court to take into account the considerations listed in considering whether one of the exceptions to the foreign criminal policy applies. It is appropriate for the full court to decide whether that applies in a situation such as this.