RJG v Secretary of State for the Home Department

This is an appeal by RJG against a decision of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Martin) promulgated on the 26 March 2015 dismissing an appeal against a decision of the First-tier Tribunal (Immigration and Asylum Chamber) (First-tier Tribunal Judge K W Brown) promulgated on 19 November 2014, in turn dismissing an appeal against a decision to make a deportation order made by the respondent on 28 April 2014.

The appellant was born on 27 June 1989 and is a citizen of Jamaica. He arrived in the United Kingdom in December 1996 when he was seven years of age. Initially he did not have valid leave to remain but on 18 December 2002 he was granted indefinite leave to remain in the United Kingdom.

He has one criminal conviction. On 22 January 2007 at Inner London Crown Court he was convicted of wounding with intent to inflict grievous bodily harm and was subsequently sentenced to six years detention in a Young Offenders Institution. At the date of conviction and sentence he was seventeen years of age. He also has two warnings recorded against him for theft in June 2004 and common assault in September 2006.

The appellant’s brother, who is ten years older than him, was also convicted of wounding with intent to inflict grievous bodily harm arising out of the same incident. The appellant’s account is that the victim was stabbed by his brother. The appellant was present and maintains that he did not stab the victim. Nevertheless both were convicted on the basis of joint enterprise. The appellant’s brother was sentenced to six years imprisonment and deported to Jamaica after he was released from custody.

Following his release from custody in December 2009 the appellant went through a form of Islamic marriage with MG, whom he had known since they were children. She is a British citizen who was born in Syria and who came to the United Kingdom as a refugee. The judge in the First-tier Tribunal found that the marriage had not been lawfully registered as a valid marriage in the United Kingdom. However he referred to MG as the appellant’s wife and I shall do the same.

Two children were born to them, RA, who was born on 17 October 2011, and MN, who was born on 22 March 2013. Both were born in the United Kingdom and are British citizens. They and their mother do not have a family home with the appellant. The appellant’s evidence was that this was due to problems caused by his wife’s family who disapproved of him because of his different background and ethnicity. At the date of the decision of the First-tier Tribunal in November 2014 his wife and sons were living in a women’s refuge. However, the appellant maintained that his wife and children spend on average four days a week with him. The judge in the First-tier Tribunal observed that the appellant appears to have a close and loving relationship with the children who were in attendance at the commencement of the hearing.

The appellant had had difficulty in finding work. His mother is disabled and until March 2014 he acted as her carer. At the date of the hearing before the First-tier Tribunal he was working as a gardener for a housing association.

The appellant claimed to have strong ties to the United Kingdom that included his relationship with his wife and children, his mother, two sisters, grandmother and an uncle. He claimed not to know anyone in Jamaica. He stated that the last time he was in Jamaica was on the occasion of his father’s death when the appellant was sixteen. His brother had been deported to Jamaica. However the appellant maintained that since the appeal hearing in his brother’s case and his subsequent deportation the family had had no contact with him.

On 12 December 2013, the appellant applied to the respondent to transfer his indefinite leave to remain into his new Jamaican passport. On 28 January 2014 the Home Office wrote to the appellant seeking reasons why he should not be deported from the United Kingdom following his conviction. On 28 April 2014 the appellant was served with a letter indicating his liability to deportation on the grounds that his deportation would be conducive to the public good. This was followed on 1 May 2014 by a formal decision to make a deportation order under section 3(5)(a), Immigration Act 1971.

The appellant appealed against that decision to the First-tier Tribunal on the basis that his deportation to Jamaica would breach his rights under Article 8 ECHR. The First-tier Tribunal dismissed that appeal on 19 November 2014. The appellant appealed to the Upper Tribunal on three grounds;

Upper Tribunal Judge Martin held as follows:

The Upper Tribunal refused permission to appeal to the Court of Appeal. Leave to appeal was granted by Burnett LJ on 23 October 2015.

On 28 July 2014 the Immigration Act 2014 (“the 2014 Act”) came into force. It inserted a new Part 5A into the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). Sections 117C and 117D of the 2002 Act provide in relevant part:

On 28 July 2014 the Immigration Rules were also amended. They now read in relevant part:

On behalf of the appellant Mr. Gill QC relies on eight grounds of appeal which may be summarised as follows.

These grounds substantially overlap each other. This was apparent at the hearing of the appeal when the submissions ranged widely over the different grounds. This will be reflected in the structure of this judgment.

The basis of deportation

The appellant submits that the First-tier Tribunal wrongly approached the case on the basis that it was concerned with an automatic deportation under section 32, UK Borders Act 2007. In fact, the decision was made under section 3(5)(a), Immigration Act 1971 where the respondent is given a discretion to make a deportation order on the grounds that it would be conducive to the public good. It is submitted that this fundamental misunderstanding resulted in the appellant being denied a proper hearing on the issues that arose. In particular it is submitted that the weight to be attached to the public interest in removing a criminal is less in the case of discretionary deportation, on grounds that continued presence is not conducive to the public good, than in the case of automatic deportation.

The judge in the First-tier Tribunal at paragraph 30 of his determination stated:

“I find firstly that the Deportation Order was correctly made having regard to the relevant provisions of Section 32 of the UK Borders Act 2007.”

On its face, this is a clear error of law. In fact, there was no deportation order, the decision appealed was a decision to make a deportation order of which the appellant was given notice by a notice of decision dated the 28 April 2014. More significant, however is the fact that the Secretary of State acted not pursuant to section 32 of the 2007 Act but pursuant to section 3(5)(a) of the Immigration Act 1971. Section 32 does not apply in this case because section 33(3) creates an exception where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction. In this case the appellant was under 18 when he was convicted and section 32 therefore has no application.

I am not persuaded, however, that the First-tier Tribunal was under a misapprehension as to the age of the appellant or as to the basis on which the decision to make a deportation order had been taken. In a letter dated 24 April 2014 to the appellant’s solicitors, which was produced at the hearing before the First-tier Tribunal, the respondent explained that the respondent initially sought the automatic deportation of the appellant under the 2007 Act but, due to his age at the relevant time, the respondent was now seeking to deport him under the Immigration Act 1971. Furthermore, earlier in its determination the First-tier Tribunal had expressly recorded that the appellant was 17 years of age at the date of his sentence and that he was sentenced to six years detention in a Young Offenders Institution. It then went on to state that “the order was made under section 3(5)(a) of the Immigration Act 1971 on the basis that the appellant’s deportation from the UK was deemed by the respondent to be conducive to the public good”. Accordingly, I consider that, despite its error at paragraph 30, the First-tier Tribunal was fully aware that it was concerned with discretionary deportation and that the appellant was under 18 years of age at the date of conviction.

In any event, even if the First-tier Tribunal made such an error, I do not consider that it had any material consequences. The First-tier Tribunal went on to consider the tests contained in section 117C of the Nationality, Immigration and Asylum Act 2002 and in paragraphs 398-399A of the Immigration Rules. These provisions apply whether deportation is automatic under section 32 of the 2007 Act or discretionary under section 35A of the 1971 Act. I can see no basis for the submission that a Tribunal is likely to have attached more weight to the public interest in removing an offender pursuant to the provisions governing automatic deportation than pursuant to those governing discretionary deportation. Moreover, there is nothing in the determination of the First-tier Tribunal in this case to support the view that this occurred. Furthermore, I note that section 33(7)(b) of the 2007 Act provides that the application of an exception results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good. The reality is that both automatic and discretionary deportations fall to be considered under the same provisions in section 117C which incorporates the view of Parliament as to the weight which should be given to the public interest in this context. The First-tier Tribunal directed itself correctly as to the tests to be applied.

The Upper Tribunal considered this point. It concluded correctly that this was not a material error of law in the circumstances and that the First-tier Tribunal had gone on to apply the provisions in section 117C of the 2002 Act.

Immigration Rules

On behalf of the appellant it is submitted that the First-tier Tribunal failed to apply paragraphs 397 and 398 of the Immigration Rules lawfully. Mr. Gill points to the statement of the First-tier Tribunal that the appellant’s claim was required to be considered against the criteria set out in paragraphs 399 and 399A. He submits that this is incorrect because it is plain from paragraph 398 that where a person has been sentenced to at least four years imprisonment paragraphs 399 and 399A have no application.

This submission is totally lacking in substance. While it is correct that paragraphs 399 and 399A have no direct application to the present case, the First-tier Tribunal had to look at those provisions in order to be able to apply paragraph 398 which expressly provides that the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A. The First-tier Tribunal had to inform itself of those other provisions and the fact that it did so cannot possibly be characterised as an error of law.

Unduly harsh

Thirdly, Mr. Gill submits that in concluding that it would not be unduly harsh for the appellant’s wife and children to be required to live in Jamaica with him the First-tier Tribunal did not apply the test in section 117C(5) but the test in paragraph 399A which asks whether it would be unduly harsh for the child to live in the country to which the appellant is to deported and whether it would be unduly harsh for the child to live in the United Kingdom without the appellant. This submission is totally lacking in substance. The judge in the First-tier Tribunal was required to address both situations and did so in conformity with Section 117C and the Immigration Rules. In this regard I note that section 117C and paragraph 398 of the Immigration Rules came into effect at the same time as part of an integrated and coherent code in primary legislation and the Immigration Rules for dealing with deportation cases (see NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ. 662 per Jackson LJ at paragraph [26]).

In Grounds 2, 3, 4 and 5 the appellant advances a number of submissions in relation to the application of Article 8 ECHR.

On behalf of the appellant it is submitted that, as he has lived in the United Kingdom since early childhood and committed the offence when he was a minor, the First-tier Tribunal should have considered and applied the criteria in Maslov v Austria [2009] INLR 47. In that case a Grand Chamber of the European Court of Human Rights held (at [74] and [75]) that although Article 8 provides no absolute protection against expulsion for any category of aliens, regard must be had for the special situation of those who have spent most of their childhood in the host country. Where a settled migrant has lawfully spent most of his childhood in the host country very serious reasons are required to justify expulsion, especially when the person was a juvenile at the time the offences underlying the expulsion measure were committed. It is submitted that the test in section 117C must be read in line with this case law.

Section 117C and the Immigration Rules are intended to be a complete code in this regard (MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ. 1192, [2014] 1 WLR 544 per Lord Dyson MR at [44]). This does not mean that Article 8 is denied effect. On the contrary, the requirements of Article 8 and the Strasbourg jurisprudence are to be addressed in full within the structure of that scheme. An examination of proportionality is to be carried out taking all relevant Article 8 criteria into account through the lens of these statutory provisions (Secretary of State for the Home Department v LW (Jamaica) [2016] EWCA Civ. 369 per Gross LJ at [14]). In particular, consideration of whether there are very compelling circumstances over and above those described in Exceptions 1 and 2 in section 117C(6) or over and above those described in paragraphs 399 and 399A of the Immigration Rules involves the application of a proportionality test as applied in the Strasbourg jurisprudence.

The statutory scheme incorporates the view of Parliament as to the weight to be given to the public interest in this regard. The scales are heavily weighted in favour of deportation and something very compelling is required to swing the outcome in favour of a foreign criminal whom Parliament has said should be deported. Although there is no exceptionality requirement, it follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare (NA (Pakistan) per Jackson LJ at [33]).

This is a legitimate approach as it falls squarely within the margin of appreciation which is afforded to contracting states (NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ. 662 per Jackson LJ at [38]–[39]). The statutory scheme has been consistently held to comply with the requirements of Article 8. It would therefore be wrong to consider the question of infringement of Article 8 rights outside the terms of these provisions. (LC (China) per Moore-Bick LJ at [17], [26]; NA (Pakistan) [2016] EWCA Civ. [662] per Jackson LJ at [17]).

As stated above, section 117C(6) applies a test of very compelling circumstances over and above those described in section 117C(4) and (5). Similarly paragraph 398 of the Immigration Rules applies a test of very compelling circumstances over and above those described in paragraphs 399 and 399A. Section 117C(5) and paragraph 399 require the court to consider whether certain consequences would be “unduly harsh”. In MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ. 450 the Court of Appeal held that in considering whether the effect of deportation on a child would be unduly harsh within section 117C(5) the court was not required to focus exclusively on the effect on the child but was required to carry out a balancing exercise in which the wider public interest was engaged. Laws LJ (with whom Vos and Hamblen LJJ agreed) held (at [22]-[24]) that the court should have regard to all the circumstances including the appellant’s immigration and criminal histories. That decision is binding on this court and Mr. Gill did not attempt to persuade us to the contrary. However he drew our attention to the judgment of Elias LJ in R (MA (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ. 705 where the contrary view is expressed (at [36] and following) by Elias LJ with whom King LJ and Sir Stephen Richards agreed.

Mr. Gill did address us, however, as to the meaning of “very compelling circumstances over and above those described in Exceptions 1 and 2” in section 117C(6) and the corresponding provision in paragraph 398 of the Immigration Rules. Here Mr. Gill submits that the First-tier Tribunal and the Upper Tribunal erred in considering the requirement that there should be “very compelling circumstances” over and above those described in section 117C(4) and (5) to be a complete test of the Article 8 considerations in deportation cases. He submits that such a reading makes no sense and would make the test impossible to overcome. He submits that, in order to give effect to Article 8, section 117C(6) must be interpreted in one of three ways:

I would reject the appellant’s submissions as to the alternative interpretations of these words in section 117C(6) and in paragraph 398 of the Immigration Rules. Each of these proposed readings is inconsistent with the plain meaning of the words used and with the statutory scheme which has been held in a series of cases before this court (including those referred to above) to comply with Article 8 ECHR. In my judgment, the true effect of these provisions is explained by Jackson LJ (with whom Sharp and Sales LJJ agreed) in NA (Pakistan) at [29] and [30]:

In the present case the First-tier Tribunal directed itself correctly. The claim founded on Article 8 had to be considered through the lens of paragraph 398 of the Immigration Rules and section 117C(6). The First-tier Tribunal was not asked by the appellant to perform any kind of free standing Article 8 balancing exercise and it would have been wrong to do so.

The First-tier Tribunal expressly addressed the question whether there would be very significant obstacles to the appellant’s integration into Jamaica within section 117C(4). The judge appears to have addressed this question in conjunction with the question under section 117C(5). He referred to the fact that the appellant’s brother is living in Jamaica. He did not find it credible that the whole family would have lost touch with his brother since he was deported to Jamaica but he concluded that, whether that was or was not the case, there was no reason to suppose that that relationship was necessary for the appellant and his wife and family to integrate into Jamaica.

In the Upper Tribunal the judge accepted that the appellant had been lawfully resident in the United Kingdom for most of his life and is socially and culturally integrated in the United Kingdom. However, he could find no error of law in the conclusion of the First-tier Tribunal that there were no very significant obstacles to his integration into Jamaica. In this regard he noted that the judge in the First-tier Tribunal had referred to the appellant’s Jamaican origin, that he spoke the language, that he was young and in good health and had been working in the United Kingdom, and that there was no reason why he could not work in Jamaica.

I consider that the judge in the First-tier Tribunal was clearly correct in his conclusion that there are no very significant obstacles to the appellant’s integration into Jamaica. Accordingly he cannot fall within Exception 1 within section 117C(4). In any event, that is not the applicable test in his case. As he was sentenced to a term of detention of at least four years the effect of section 117C(6) is that the public interest requires deportation unless there are very compelling circumstances over and above those described in Exception 1. The appellant is clearly unable to satisfy this very high standard.

Section 55, Borders, Citizenship and Immigration Act 2009 places an obligation on the Secretary of State to make arrangements for ensuring that her functions in relation to, inter alia, immigration, are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.

In Zoumbas v Home Secretary [2013] UKSC 74; [2013] 1 WLR 3690, Lord Hodge JSC, delivering the judgment of the Supreme Court summarised the legal principles derived from the decisions of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, H v Lord Advocate [2013] 1 AC 338 and R (HH) v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1AC338 as follows:

“(1)

The best interests of a child are an integral part of the proportionality assessment under article 8 of the Convention; (2) in making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration; (3) although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant; (4) while different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play; (5) it is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations; (6) to that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and (7) a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.” (at [10])

In particular, I note the need to have a clear view of the child’s best interests before asking whether those interests are outweighed by other considerations.

In MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT223 (IAC) the Upper Tribunal (McCloskey J. and Upper Tribunal Judge Perkins) emphasised that it is manifestly insufficient for a decision maker merely to pay lip service to the duties imposed by section 55.

“The substance of the primary duty must be properly acknowledged, the relevant children must be identified and their best interests must then be considered, to be followed by a considered balancing exercise. In assessing the best interests of each affected child, the decision maker must be properly informed. Furthermore, it must be apparent from the terms of the decision that the best interests of each affected child, as assessed, are ranked as a primary consideration and accorded a primacy of importance, as required by ZA(Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166…)”

Mr. Gill submits that the First-tier Tribunal was wrong to apply the “unduly harsh” test as set out in section 117C(5) of the 2002 Act and paragraph 399 of the Immigration Rules. He submits that the approach should have been first to ascertain the best interests of the child and then to ask whether the cumulative effect of strong countervailing considerations of great weight was sufficient to override those best interests and the principle that children are not to be punished for the sins of a parent. He submitted that the only and obvious conclusion in this case was that the best interests of the children required that they remain in the United Kingdom with both parents. However, he submitted that no analysis at all of the children’s best interests had been undertaken by the First-tier Tribunal or the Upper Tribunal.

For the reasons set out earlier in this judgment I consider that in a deportation case there is no requirement to engage in a free standing Article 8 balancing exercise outside the statutory scheme. Indeed, the court or Tribunal would be wrong to do so. Nevertheless, I do consider that where the interests of children arise in a deportation case there is a need for a full determination of their best interests.

In the present case, Judge Brown in the First-tier Tribunal did not undertake a discrete evaluation of the interests of the children as he should have done. Instead he addressed the question of their best interests in the context of the application of section 117C. Nevertheless I am not persuaded that this deficiency is a ground for quashing the determination. The First-tier Tribunal’s view of the best interests of the children is uncontroversial and is implicit in its discussion of the consequences if the appellant were deported. In its letter of the 28 April 2014 the Secretary of State expressly accepted that the best interests of the children would be served by having both parents to care for them, providing support and guidance. The judge’s approach to the balancing exercise within the structure of section 117C is impliedly founded on the view that it would be in the best interests of the children to remain in the United Kingdom with both parents. The judge then goes on to consider, as he had to, the various possible arrangements which might be set in place if the appellant were deported. He did so in the context of applying the statutory tests.

Although the grounds of appeal to the Upper Tribunal did not include any reference to this issue, it was referred to by the judge granting permission to appeal and it was accordingly referred to before the Upper Tribunal. In his judgment in the Upper Tribunal Judge Martin correctly referred to the requirement that the best interests of the children had to be considered as a primary consideration. He noted that the judge did not make specific reference to section 55. However he concluded that even had he done so it could have made no difference to the outcome. Taking them at their highest, the best interests of the children required that the appellant remain in the United Kingdom. However, taken cumulatively, all of the other factors, particularly the fact that the appellant had committed a very serious offence, required his deportation and outweighed the best interests of the children. I entirely agree with his analysis.

Under this ground Mr. Gill advances two submissions. First he submits that the First-tier Tribunal was wrong to apply a test of whether the deportation of the appellant would be “unduly harsh” on his wife. Instead, he submits, the test to be applied is whether it is reasonable to expect the partner to go and live in Jamaica. For the reasons set out above I consider that in a deportation case courts and tribunals are required to determine such issues not as a free standing exercise but within the statutory scheme established by section 117C. Parliament has laid down under section 117C(5) the test of whether the effect of deportation on the partner would be unduly harsh. That approach has been held to comply with Article 8.

Secondly, he submits that no reasonable tribunal could have held that it was reasonable to expect her to move to Jamaica, as the appellant has no experience of Jamaica and has lived in the United Kingdom from early childhood. He submits that the language of choice is absent from or rejected by the case law and that it was an obvious or glaring error of law for the First-tier Tribunal to assert that it was merely a matter of choice for the appellant’s partner to decide whether to stay in the United Kingdom or to go to Jamaica. The First-tier Tribunal considered the position of the appellant’s wife at [19] – [23] and [35]. The judge concluded that there was no reason why the appellant, his wife and the children could not maintain their relationships in Jamaica where they could live together. However, he went on to note that it would, of course, be a matter for his wife to decide whether she should join the appellant in Jamaica if he is deported. I consider that the First-tier Tribunal was entitled to conclude that it would not be unduly harsh for the appellant’s wife to move to Jamaica. In any event, as this case is concerned with an offender whose sentence was at least 4 years, section 117C(6) and paragraph 398 of the Immigration Rules apply. Accordingly, the public interest requires deportation unless there are very compelling circumstances over and above a state of affairs in which the effect of deportation would be unduly harsh. That is simply not demonstrated here.

The issue which has caused me the greatest concern in this case is that of delay. The applicant was released from custody in December 2009 at the mid- point of his 6 year sentence. His brother, who was also serving a 6 year sentence, was released at about the same time. Thereafter steps were taken by the respondent to secure the brother’s deportation to Jamaica. However, no such steps were taken in the case of the appellant. He carried on with his life, entered a relationship with a young woman whom he had known since childhood and they underwent a religious ceremony of marriage. Two sons were born to them in October 2011 and March 2013 respectively. It was only after the appellant made an application to the Home Office in December 2013 that the Secretary of State decided in January 2014 to take steps to deport him. Given the importance which the Secretary of State and Parliament attach to the deportation of serious criminals this delay is regrettable and unattractive.

On behalf of the appellant, Mr. Gill now submits that both the First-tier Tribunal and the Upper Tribunal failed to take into account that the public interest in deportation was radically diminished by the failure of the respondent to take any action to deport the appellant until 2014. He submits that the weight to be given to the public interest in deportation, emphasised in section 117C, is not a fixity. He submits that it must give way to the family’s Article 8 interests in circumstances where the offence is now some 11 years old and the respondent has delayed from December 2009 until January 2014 before commencing deportation action and where the appellant has continued to develop his private and family life whilst having indefinite leave to remain in the United Kingdom. He further submits that the delay will have the effect of enhancing the weight to be given to the Article 8 interests, in particular where it creates a sense of security. He submits that the First-tier Tribunal and the Upper Tribunal erred in law in failing to take these matters into account.

On behalf of the respondent, Mr. Harland makes a preliminary objection to the appellant advancing this ground because it has not previously been taken either before the First-tier Tribunal or on appeal to the Upper Tribunal. I note that neither Tribunal took the point of its own motion. As a result it has been raised for the first time on appeal to this court. It is necessary therefore to consider whether the appellant should now be permitted to argue the point.

In Robinson v Secretary of State [1998] QB929 this court held (at [39]) that appellate authorities are not required to engage in a search for new points.

“If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicators should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely “arguable” as opposed to “obvious”… [W]hen we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do.”

It is clear, therefore, that the test is a high one.

For reasons explained below, I am not persuaded that the issue of delay was “obvious” so as to satisfy the Robinson test.

It is now established, however, that this court has a discretion to allow an appeal from the Upper Tribunal to the Court of Appeal to be advanced on a point of law not relied on below which does not meet the Robinson test of “obviousness”. Section 13, Tribunals, Courts and Enforcement Act 2007 provides in relevant part:

“13.

Right of Appeal to the Court of Appeal

(1)

For the purposes of sub-section (2) the reference to a Right of Appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.

(2)

Any party to a case has a right of appeal …”

Section 14(1) provides that the power of the relevant appellate court to set aside the decision of the Upper Tribunal under section 14(2)(a) applies “if the relevant appellant court, in deciding an appeal under section 13, finds that the making of the decision concerned involved the making of an error on a point of law”

In Miskovic v Secretary of State for Work and Pensions [2011] EWCA Civ. 16 this court held that the words “any point of law arising from a decision made by the Upper Tribunal” are to be interpreted as including a dispute about the correct application of any principle of law on which the Tribunal’s decision depends and that it is sufficient to found the court’s jurisdiction to entertain argument on such a matter which was not raised below. (Elias LJ at [70], Sedley LJ at [108]–[124], Moore-Bick LJ at [134]. See also GS (India) [2015] EWCA Civ. 40 per Underhill LJ at [106], per Sullivan LJ at [116], cf Laws LJ at [89]).

That leads to the question whether this court should use its discretion to permit argument on delay to be raised on this appeal. In my view it should not.

I have been concerned that had the issue of delay been raised directly on behalf of the appellant before the First-tier Tribunal, the parties would have wished to put in evidence as to the causes and consequences of the delay. This is apparent from the fact that in the course of the hearing before us both counsel raised matters relating to delay which, if they were to be pursued, should probably be the subject of evidence. In the absence of evidence on these points, it would not be appropriate for this court to speculate.

In any event, I am satisfied that the appellant’s proposed case on delay cannot succeed. I would accept that, in principle, a substantial delay on the part of the Secretary of State in pursuing the deportation of a person convicted of serious crime could be an important factor in determining the proportionality of the deportation, both because it might reflect on the weight to be given to the public interest in deportation and because of its effect on the individuals concerned. In the latter regard, I have firmly in mind the observations of Lord Bingham of Cornhill, made in another context, in EB (Kosovo) v Secretary of State for the Home Department [2009] 1AC 1159 at [14]–[16]. However, viewing the particular circumstances of this case in the manner most favourable to the appellant, the delay which occurred, when considered in conjunction with the other factors on which he relies, cannot in my view outweigh the compelling public interest in his deportation.

I consider that this is demonstrated by the determination of the First-tier Tribunal notwithstanding the fact that it did not expressly address the issue of delay. First, the delay on the part of the respondent was a matter of which the First-tier Tribunal was fully aware. On any consideration of the facts the Tribunal would be bound to appreciate that a substantial period of time had been allowed to pass during which the appellant had established a family life in the United Kingdom. Furthermore, there was before the First-tier Tribunal the respondent’s letter dated 28 April 2014 which provided the reasons for the decision challenged. That letter expressly referred (at [20]–[24]) to the delay, accepted that it was significant but submitted that the respondent was nevertheless entitled to pursue deportation. The fact that the First-tier Tribunal did not expressly address the issue of delay does not mean that it did not take it into account. Secondly, the First-tier Tribunal addressed the consequences of that delay. The appellant’s entire case on Article 8 was founded on his marriage and the birth of his sons which had all occurred since his release from custody. Had there been no delay by the respondent the appellant would have had no case on Article 8 whatsoever. In its determination the First-tier Tribunal gave appropriate weight to these factors and concluded, against the appellant, that they simply did not outweigh the compelling public interest in his deportation.

The appellant submits that the First-tier Tribunal and the Upper Tribunal failed to consider whether the appellant should have been allowed to remain in the United Kingdom pursuant to a residual discretion under paragraph 397 of the Immigration Rules which provides:

“397.

A deportation order will not be made if the person’s removal pursuant to the order would be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.”

This point was not argued before the First-tier Tribunal nor was it a ground of appeal from the Upper Tribunal. In any event, there are no exceptional circumstances which could justify the displacement of the conclusion arrived at within the statutory scheme.

For these reasons, I would dismiss this appeal.

I agree.

I also agree.