The Secretary of State for the Home Department v JZ (Zambia)

This judgment is in eight parts, namely:

This is an appeal by the Secretary of State against a decision made by the First-tier Tribunal and upheld by the Upper Tribunal that JZ, despite his conviction for serious offences, cannot be deported to Zambia. The issue in this appeal is whether the First-tier Tribunal and the Upper Tribunal correctly applied rules 398 to 399A of the Immigration Rules.

JZ was the defendant in criminal proceedings, the applicant for relief from deportation, the appellant before the First-tier Tribunal and the respondent before the Upper Tribunal. When referring to his role in the litigation I shall call him “the claimant”.

The Secretary of State for the Home Department was respondent before the First-tier Tribunal and appellant before the Upper Tribunal. She is the appellant before this Court. I shall refer to her as “the Secretary of State”. I shall refer to the UK Border Agency as “UKBA”.

Again in this judgment references to “article 8” are references to article 8 of the European Convention on Human Rights. Article 8 provides:

“ARTICLE 8

Right to respect for private and family life

1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

I shall refer to the UK Borders Act 2007 as “the 2007 Act”. Sections 32 and 33 of the 2007 Act provide:

“32 Automatic deportation

(1)

In this section “foreign criminal” means a person—

(a)

who is not a British citizen,

(b)

who is convicted in the United Kingdom of an offence, and

(c)

to whom Condition 1 or 2 applies.

(2)

Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3)

Condition 2 is that—

(a)

the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and

(b)

the person is sentenced to a period of imprisonment.

(4)

For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.

(5)

The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).

(6)

The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—

(a)

he thinks that an exception under section 33 applies,

(b)

the application for revocation is made while the foreign criminal is outside the United Kingdom, or

(c)

section 34(4) applies.

(7)

Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.

33 Exceptions

(1)

Section 32(4) and (5)—

(a)

do not apply where an exception in this section applies (subject to subsection (7) below), and

(b)

are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).

(2)

Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—

(a)

a person's Convention rights, or

(b)

the United Kingdom's obligations under the Refugee Convention.

(3)

Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.

….”

The Immigration Rules as they were at the time of the First-tier Tribunal’s decision provided as follows:

“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;

(b)

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 less than 4 years but at least 12 months; or

(c)

the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

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.

399.

This paragraph applies where paragraph 398(b) or (c) applies if –

(a)

the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i)

the child is a British Citizen; or

(ii)

the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a)

it would not be reasonable to expect the child to leave the UK; and

(b)

there is no other family member who is able to care for the child in the UK; or

(b)

the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and

(i)

the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and

(ii)

there are insurmountable obstacles to family life with that partner continuing outside the UK.

399A. This paragraph applies where paragraph 398(b) or (c) applies if –

(a)

the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

(b)

the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.”

After these introductory remarks, I must now turn to the facts.

The claimant is a Zambian national who was born on 7 April 1994. The claimant was born and raised in Zimbabwe. His mother is a Zambian national of Congolese descent. The claimant’s father was a German national of Lebanese descent. He has not been involved in the claimant’s life.

In 2003 the claimant at the age of 9 came to the UK with his mother and stepfather. He has lived with them and his half siblings since then, except when he was imprisoned. In 2010 all family members obtained indefinite leave to remain. In 2013 the claimant’s mother, stepfather and half-siblings became British citizens.

In August 2011 there was major rioting in London. The claimant took an active part in those riots. At one stage he hurled a burning plank of wood at the police. Fortunately a CCTV camera recorded this shocking behaviour with reasonable clarity.

The claimant’s mother saw a film of the rioting on television. She recognised her son amongst the rioters. Acting with commendable civic duty, she reported her own son to the police. This must have been an agonising decision for her, but she did the right thing.

On 28 May 2012 at Wood Green Crown Court the claimant pleaded guilty to one count of violent disorder and two counts of arson. On 13 July 2012 he was sentenced to a total of 4½ years’ detention.

The Secretary of State decided to deport the claimant in accordance with the provisions of the 2007 Act. She noted that the claimant was a “foreign criminal” within section 32 of that Act. She concluded that none of the exceptions in section 33 applied. On 4 September 2012 the Secretary of State served on the claimant a liability to deportation notice.

On 20 September 2012 the claimant’s solicitors sent in submissions setting out why he should not be deported. The Secretary of State considered those submissions, but adhered to her original view. On 28 May 2013 the UKBA sent a deportation order to the claimant. The UKBA set out the reasons for the Secretary of State’s decision to deport in an accompanying letter.

In its letter dated 28 May 2013 the UKBA stated that any interference with the claimant’s rights under article 8 would be in accordance with the permissible aim of preventing disorder and crime and protecting the rights and freedoms of others. The Secretary of State relied upon the provisions of section 32 of the 2007 Act and rule 398 of the Immigration Rules.

The claimant appealed to the First-tier Tribunal, essentially on the grounds that deportation would infringe his right to private and family life in the UK under article 8. A panel of the First-tier Tribunal comprising Immigration Judge Mitchell and Sir Jeffrey James KBE CMG heard the appeal on 27 January 2014 and handed down its decision on 4 March 2014. The panel received oral evidence from the claimant, his mother and stepfather.

Having considered the oral and written evidence, the panel made the following findings of fact:

I have taken the liberty of setting out the First-tier Tribunal’s findings of fact in a rather more logical order than they appear in the Tribunal’s decision. Where necessary, I shall refer to those findings by reference to the numbered sub-paragraphs set out above.

The First-tier Tribunal held that the facts which it had found were such that it would be unjustifiably harsh to deport the claimant to Zambia. Such deportation would be a breach of the claimant’s rights under article 8. Accordingly the case fell within exception 1 set out in section 33 of the 2007 Act. Therefore, the First-tier Tribunal allowed the claimant’s appeal against the deportation order.

The Secretary of State was aggrieved by that decision and appealed to the Upper Tribunal, essentially on two grounds. First, the First-tier Tribunal erred in making its findings of fact. Secondly, the First-tier Tribunal erred in holding that the claimant’s rights under article 8 could outweigh the strong public interest in deportation.

Upper Tribunal Judge Rintoul heard the appeal on 21 May 2014 and handed down his decision on 3 July 2014. He rejected the challenge to the First-tier Tribunal’s findings of fact. He held that there was no error of law in the First-tier Tribunal’s conclusion that the claimant’s article 8 rights outweighed the public interest in deportation. Accordingly he dismissed the Secretary of State’s appeal.

The Secretary of State was aggrieved by the decision of the Upper Tribunal and accordingly has appealed to the Court of Appeal.

By a notice of appeal filed on 13 October 2014 the Secretary of State appealed to the Court of Appeal on several grounds. I would summarise the Secretary of State’s contentions in their final manifestation as follows:

Mr Marcus Pilgerstorfer for the Secretary of State goes on to argue that if he succeeds on any of those arguments the Upper Tribunal erred in dismissing the Secretary of State’s appeal. Accordingly this Court should allow the appeal against the decision of the Upper Tribunal and then re-make that decision in favour of deportation. Alternatively, the Court of Appeal should remit the case to the First-tier Tribunal so that the First-tier Tribunal can re-make the decision.

Ms Victoria Hutton resists all of the Secretary of State’s challenges to the First-tier Tribunal decision. Furthermore she submits that some of those challenges were not taken on the appeal to the Upper Tribunal and it is now too late for the Secretary of State to advance new and ingenious arguments in the Court of Appeal.

For reasons which will become apparent, I do not find it necessary to deal with the procedural issues. I shall proceed on the basis that all the Secretary of State’s arguments are open to her in this court and I shall deal with them as they stand.

Mr Pilgerstorfer submits that the first task of the First-tier Tribunal in a case such as this is to consider whether the claimant can bring himself within rules 399 or 399A. If he cannot, then matters of the character described in those two rules drop out of the picture. Thus matters such as length of residence in the UK and lack of ties with Zambia cannot form part of the aggregation of matters which collectively constitute “exceptional circumstances” within the meaning of rule 398.

I do not accept this argument for two reasons. First, as a matter of construction, rules 398, 399 and 399A do not either expressly or impliedly “ring fence” the 399/399A factors in the way that Mr Pilgerstorfer suggests. Rule 398 first requires the Secretary of State to see whether the proposed deportee falls into the safety net of rule 399 or 399A. If he/she does not, then rule 398 requires the Secretary of State to consider whether there are exceptional circumstances which outweigh the public interest in deportation. Obviously there is no “near miss” principle. A deportee who has a sentence slightly longer than 4 years or who fails by a small margin to satisfy 20 years’ residence requirement cannot say that that fact alone constitutes “exceptional circumstances”. But it would be bizarre if the Secretary of State were required to ignore such matters altogether when considering whether there were “exceptional circumstances”.

In my view, rule 398 requires the Secretary of State (and on appeal the First-tier Tribunal) to consider all relevant matters in deciding whether there are “exceptional circumstances” which outweigh the public interest in deportation. In the vast majority of cases the answer will be no. But the Secretary of State cannot take a shortcut to arrive at that answer by ignoring every circumstance of the character mentioned in rules 399 and 399A.

The second reason why I reject the Secretary of State’s argument is this. As Ms Hutton pointed out, if the argument were correct the Secretary of State could have relied upon that argument in many of the reported cases. In fact there appears to be no case where that argument has prevailed, or indeed even featured in the Secretary of State’s submissions. Mr Pilgerstorfer was constrained to accept that in his speech in reply, subject to one caveat.

Mr Pilgerstorfer’s caveat was that the Court of Appeal implicitly, though not expressly, accepted that argument in LC (China) ) v Secretary of State for the Home Department [2014] EWCA Civ 1310 at the end of [24]. I do not agree. All the Court of Appeal was saying in that passage was that separation of children from their father for a long time, in a case not falling within rule 399, would not constitute “exceptional circumstances”.

In the present case some of the facts relied upon by the First-tier Tribunal as forming part of the “exceptional circumstances” related to the claimant’s length of residence in the UK and his lack of ties with Zambia. In my view, the First-tier Tribunal was entitled to take those matters into account as relevant factors when considering whether on a holistic assessment “exceptional circumstances” existed sufficient to outweigh the public interest in deportation.

Accordingly my answer to the question posed in this part of the judgment is no.

The correct approach for any decision-maker applying rules 398 to 399A of the Immigration Rules is now well-established. The task is not to carry out a freestanding analysis of the article 8 factors. The Secretary of State has already carried out that exercise in drafting rules 398 to 399A. Those rules form a complete code explaining how article 8 operates in cases where a foreign criminal is resisting deportation. The decision-maker must take account of the proposed deportee’s Convention rights through the lens of the Immigration Rules. The rules emphasise the high public interest in deporting foreign criminals. In a case to which rules 399 and 399A do not apply, very compelling reasons will be required if they are to constitute “exceptional circumstances” which outweigh the public interest in deportation. For a fuller exposition of these now well-established principles, see MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544, Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636, LC (China) v Secretary of State for the Home Department [2014] EWCA Civ 1310 and Secretary of State for the Home Department v Suckoo [2016] EWCA Civ 38.

Mr Pilgerstorfer submits that in the present case, the First-tier Tribunal did not adopt the correct approach in accordance with those authorities. Instead the tribunal considered the application of article 8 on a freestanding basis.

I am bound to accept that the First-tier Tribunal’s decision is not a model of its kind. It is neither well structured nor easy to follow. Findings of fact are dotted around in no very logical order, interspersed among observations about the law. Furthermore the legal analysis is somewhat discursive. It would have been easier for the Tribunal, and it would certainly be easier for the reader, if all findings of fact were set out together in a coherent order. It would also be better if the Tribunal had set out the relevant legal principles in one place and then applied them to the facts as found.

Despite those shortcomings, I am satisfied that the tribunal did apply the correct legal principles. At paragraphs 78 and 79 the tribunal said:

“78.

The appellant is a foreign criminal and we have to consider paragraph 398 and 399 of the immigration rules (see above).

79.

We consider that those rules give a very clear indication as to how the facts of the case should be approached. They have been referred to as a “complete code” in recent cases (see below).”

At paragraph 95 the tribunal cited the Court of Appeal’s decision in MF (Nigeria). At paragraph 105 the tribunal stated that “exceptional circumstances” are necessary before a foreign criminal can resist deportation on article 8 grounds.

In paragraph 125 the tribunal said:

“We consider that the interference in both appellant’s private and family life and the effect it has on family members is not proportionate to the legitimate public end and the public interest in deportation sought to be achieved by his deportation from the United Kingdom. The effects of deportation would be unjustifiably harsh in all the circumstances”.

Mr Pilgerstorfer criticises that paragraph as applying the wrong test.

I do not accept that criticism. In MF (Nigeria) at [14] Lord Dyson MR, delivering the judgment of the court, cited with approval the following guidance given by the Secretary of State:

“a case is not exceptional just because the exceptions to deportation in rule 399 or rule 399A have been missed by a small margin. Instead, ‘exceptional’ means circumstances in which deportation would result in unjustifiably 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.”

It is clear that in paragraph 125 of its decision the First-tier Tribunal was applying paragraph 14 of MF (Nigeria).

Having read and re-read the First-tier Tribunal’s decision several times, I am satisfied that the tribunal was applying the correct legal principles. The tribunal did not carry out a freestanding article 8 analysis. Instead, it took account of the claimant’s article 8 rights through the lens of Immigration Rules 398 to 399A.

My answer to the question posed in this part of the judgment is no.

Mr Pilgerstorfer submits that the facts found by the First-tier Tribunal are not capable of constituting “exceptional circumstances” within the meaning of rule 398 of the Immigration Rules. In other words, although the tribunal referred to the need for “exceptional circumstances”, it did not apply a high enough standard of exceptionality.

I take a different view of this matter. I have set out the First-tier Tribunal’s findings of fact in Part 2 above. Findings (i), (ii) and (iii) are particularly significant. So far as I can discern from the evidence which the tribunal accepted, the claimant has only once set foot in Zambia. That was when, as a 9 year old boy, he was changing planes: see paragraph 29 of the tribunal’s decision.

The tribunal make the valid point that deportation in this case would not involve “returning” the claimant to his country of origin. It would mean sending the claimant to a country where he has never lived and where he would face the difficulties described in findings (iv), (v), (vi) and (vii). When these matters are added to findings (viii), (ix), (x), (xi), (xii), (xv), (xvi) and (xvii), there is an aggregation of extremely powerful factors pointing in favour of allowing the claimant to continue enjoying his family life in the UK. The fact that the claimant committed his offences when he was only 17 must be a relevant factor, though not of course conclusive: see Maslov v Austria (application number 1638/03, 23 June 2008) at [72]).

It seems to me that this is a highly unusual case. The First-tier Tribunal was required to carry out an evaluation. That was a task for the tribunal, not for this court. There is a range of possible conclusions which the First-tier Tribunal might have reached upon carrying out the balancing exercise, without committing any error of law. If the First-tier Tribunal had held that the facts as found did not amount to “exceptional circumstances” within the meaning of rule 398, no appellate tribunal or court would be entitled to interfere with that conclusion. On the other hand, if the First-tier Tribunal concluded (as it did) that those facts did amount to “exceptional circumstances”, again no appellate tribunal or court could interfere.

My overall conclusion is that this case is a finely balanced one. In that regard, it is not unlike MF (Nigeria): see the judgment of the Court of Appeal at [50]. This Court is not entitled to interfere with the decision reached by the First-tier Tribunal and the Upper Tribunal.

My answer to the question posed in this part of the judgment is no.

The next ground of challenge is that the First-tier Tribunal failed properly to assess (a) the strength of the claimant’s family ties in the UK and (b) the degree of interference with the claimant’s family life which would be caused by deportation to Zambia.

I do not accept this argument. The First-tier Tribunal examined very fully the character of the claimant’s family life in the UK. The tribunal also considered the effect of deporting the claimant to a country where he had never lived before. The tribunal held that this would “eliminate” his family life.

Mr Pilgerstorfer admits that the tribunal did not take modern means of communication into account or the opportunity for the claimant’s family to visit him in Zambia. I agree that the tribunal did not mention modern means of communication in its decision. On the other hand, the tribunal did observe at paragraph 83:

“There is no suggestion that anyone in the appellant’s family should follow the appellant to Zambia”.

Given all the problems of the claimant’s family as described by the First-tier Tribunal, the possibility of family holidays in Zambia would not appear realistic.

The short point here is that the existence of modern means of communication would hardly diminish the devastating effect on this young man of deportation to Zambia. In my view the First-tier Tribunal’s omission to mention modern means of communication does not undermine the decision.

The Secretary of State’s final argument is that the First-tier Tribunal impermissibly approved a “near miss” principle.

Even Mr Pilgerstorfer, who has valiantly defended the Secretary of State’s position on every front, seemed to wane in enthusiasm when reaching this final ground of appeal. He accepts that there is no express reliance on a “near miss” principle. He submits, however, that the First-tier Tribunal may have been influenced by the fact that the claimant was only just 18 when convicted. He points out that Miah v Secretary of State for the Home Department [2012] EWCA Civ 261; [2013] QB 35 prohibits reliance on a “near miss” principle.

I do not accept this argument. On reading the First-tier Tribunal’s decision as a whole, I am satisfied that the tribunal was not relying upon a “near miss” principle. The tribunal was entitled to and did have regard to the claimant’s age at conviction as one of many relevant factors when determining whether, cumulatively, those matters amounted to “exceptional circumstances” within the meaning of rule 389.

Accordingly I reject the final grounds of appeal advanced by the Secretary of State.

In 2003 the claimant, a Zambian national who had only ever lived in Zimbabwe, came to the UK at the age of 9. His family settled in the UK and obtained British citizenship. In August 2011 the claimant took part in the London riots. As a result, in 2012 he pleaded guilty to violent disorder and arson, for which he was sentenced to 4½ years’ detention.

The Secretary of State decided to deport the claimant as a foreign criminal. The claimant appealed against that decision, relying upon article 8 of the European Convention on Human Rights. The First-tier Tribunal allowed the claimant’s appeal and the Upper Tribunal upheld the First-tier Tribunal’s decision.

The Secretary of State now appeals to the Court of Appeal. In my view, both the First-tier Tribunal and the Upper Tribunal correctly applied rules 398 to 399A of the Immigration Rules. In accordance with authority, those Tribunals took account of the claimant’s Convention rights through the lens of the Immigration Rules. The tribunals concluded, and were entitled to conclude, that exceptional circumstances existed which outweighed the public interest in deporting the claimant.

Accordingly, if Lady Justice King and Lord Justice Simon agree, this appeal will be dismissed.

I agree.

I also agree.