LT (Kosovo) & Anor v The Secretary of State for the Home Department

These two appeals raise a common question: should an offence of supplying a Class A drug fall to be treated as causing “serious harm” within the meaning of paragraph 398(c) of the Immigration Rules, regardless of the particular circumstances of the offending? LT’s appeal is brought with permission granted by Christopher Clarke LJ on 21 May 2015 against a decision of the Upper Tribunal promulgated on 29 April 2014. The Upper Tribunal had allowed the Secretary of State’s appeal against the determination of the First-tier Tribunal (“the FTT”), which in turn had allowed LT’s appeal against the decision of the Secretary of State on 7 August 2013 to deport him.

DC appeals against the decision of the Upper Tribunal promulgated on 24 March 2014. He was granted permission to appeal by Beatson LJ on 31 October 2014. The Upper Tribunal had upheld the determination of the FTT, which had dismissed DC’s appeal against the Secretary of State’s refusal on 22 August 2012 to revoke a deportation order which had been made against him.

I may recite the outlined facts of the two cases shortly. LT is a national of Kosovo, born on 19 January 1985. He arrived in the United Kingdom on 12 September 1994 and stayed with the family of his aunt, uncle and cousins. On 10 January 2001 he was granted exceptional leave to remain until 19 January 2003 and thereafter further leave to remain until 16 May 2008. He applied for indefinite leave on 15 May 2008, but before that application was determined he was, on 18 May 2009, convicted of offences of possession and supply of a Class A drug, cocaine. The supply was a single deal to a friend, its quantity apparently less than one gram. He was sentenced to 15 months imprisonment, but that was reduced on appeal on 22 October 2009 to ten months. He was in due course refused indefinite leave and at length a deportation order was made on 7 October 2010. He was released from prison on 22 October 2010. In July 2012 he formed a relationship with a woman who is a British citizen. They have lived together since June 2013.

On 7 June 2013 the Secretary of State revoked the deportation of 7 October 2010 because it had been made on the footing that LT was a “foreign criminal” within the meaning of section 32 of the UK Borders Act 2007, but the Secretary of State recognised that he had not been sentenced to at least 12 months’ imprisonment, which is a requirement of section 32. However, on 7 August 2013 the Secretary of State issued a further decision to deport LT on the basis that his deportation would be conducive to the public good.

On 11 December 2013 the FTT allowed LT’s appeal against that decision. On 29 April 2014, as I have said, the Upper Tribunal allowed the Secretary of State’s appeal against the determination of the FTT.

DC is a Jamaican national born on 30 November 1985. He arrived in the United Kingdom on 13 August 2001 and was granted leave to enter until 10 September 2001. After earlier unsuccessful applications he obtained indefinite leave to remain on 31 October 2008 as the dependent child of his mother. On 5 April 2004 he was convicted of an offence of wounding or inflicting grievous bodily harm and sentenced to nine months’ detention in a young offenders’ institution. On 7 November 2008 he was convicted of road traffic offences, including taking a motor vehicle without consent, and was fined £115. On 2 June 2010 he was convicted at the Stonehaven Sheriff Court of being involved in the supply – I understand a single supply – of a Class A drug and sentenced to 42 weeks’ imprisonment.

DC was served with a notice of intention to deport on 19 August 2010. After unsuccessful appeal proceedings a deportation was signed and served. On 25 July 2011 he applied to revoke the deportation order. That was refused, as I have said, on 22 August 2012. The FTT dismissed his appeal on 20 September 2013 and on 24 March 2014 the Upper Tribunal found no error of law by the FTT and upheld its decision. I will consider DC’s personal circumstances when I address his ground of appeal concerned with article 8 of the European Convention on Human Rights.

The principal issue in both appeals can at this stage be expressed by way of the common question I articulated at the outset: should an offence of supplying a Class A drug fall to be treated as causing “serious harm” within paragraph 398(c) of the Immigration Rules, regardless of the particular circumstances of the offending? I will first set out or describe the relevant provisions of statute and the Rules. Neither appellant is a “foreign criminal” within the meaning of section 31 of the UK Borders Act 2007 in its present form, so that the provisions there made concerning automatic deportation are not in play. Discretionary deportation is, so far as relevant, provided for by section 3(5)(a) of the Immigration Act 1971, under which a person who is not a British citizen is “liable to deportation” from the United Kingdom if the Secretary of State “deems his deportation to be conducive to the public good”. The power to deport is qualified by the Immigration Rules. I will cite the version in force at the material time in relation to both appeals.

Paragraph 397 provides that a deportation order will not be made where a person’s removal would violate the ECHR or the Refugee Convention. Paragraph 398 then provides in part:

“Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention; and

…

(c)

the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a 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, the public interest in deportation will only be outweighed by other factors…"

I should say that neither paragraph 399 nor 399A has any application in either of these cases.

Paragraph 390A engages paragraph 398 in cases where an application is made to revoke a deportation order and so is material to DC’s case. It provides:

“Where paragraph 398 applies the Secretary of State 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 maintaining the deportation order will be outweighed by other factors.”

I may now turn to the principal point in issue. In LT the Upper Tribunal said this at paragraph 12:

“It appears to us that the Tribunal [the FTT] has unjustifiably in this case belittled the nature and gravity of the offence committed. The supply of class A drugs, whether it is cocaine, heroin or other class A drugs, is a very serious matter indeed whether or not the supply is of a very substantial quantity or whether, as in this case, it is a lesser supply. The effect on those who are using drugs is serious. The harm caused by the supply of drugs, even in the quantities indicated in this case, is serious. Those facts are really too well known to need recitation at length. Therefore we come to the conclusion that the approach in law to the gravity of the offence and to the serious consequences for those to whom drugs, even in small quantities, are supplied is not supportable. The only conclusion open to the Tribunal in the circumstances of this case was that the offending fell within 398(c) of the rules. The rules then required exceptional circumstances.”

In DC the Upper Tribunal said this at paragraph 14:

“There is no dispute that the appellant has a conviction for the supply of drugs. That must be a matter allowing the respondent to conclude that the offending has caused serious harm. Where that is so, it was my judgment that the appellant must come within the provisions of paragraph 398(c). The panel did not carry out the correct exercise but there could only have been one outcome where the appellant has been convicted of the supply of drugs, and that is so even before his other offences are taken into account.”

The primary argument of both appellants is that the reference to “serious harm” in paragraph 398(c) of the rules requires the decision-maker to arrive at a judgment informed by the particular facts of the case. It is not to be assumed that every single instance of supplying Class A drugs as a matter of fact causes serious harm. In LT’s case there was a single deal of less than one gram to a friend. In DC’s case there was again a single occasion and the Sheriff apparently described the case as “very much at the lower end of such offending”. It is said that a natural reading of paragraph 398(c) shows that the emphasis is on the individual consequences of the particular offence rather than the general consequences of the class of offences in question.

Moreover, the appellants submit that the Secretary of State has a published policy on article 8 in deportation cases which addresses paragraph 398(c). Version 4.0, dated 8 May 2013, states at 4.3: “The decision-maker should therefore look at the circumstances and consequences of the incidents in question” and “consider the impact that offending had on the victims.” An example given is “the supply of drugs which directly caused the death of an individual”. LT submits that in applying 398(c) to him the Secretary of State wrongfully departed from this policy. DC submits likewise that the Secretary of State wrongfully departed from an earlier, similar policy in notably shorter terms.

It is not clear that the policies on either of them was before either tribunal in either case, but nevertheless they are deployed as a matter of argument by the appellants. We have also been referred to the provisions of the Criminal Justice Act 2003 dealing with the sentencing of “dangerous offenders,” persons convicted of certain sexual or violent offences where the court considers that “there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences”. “Serious harm” is defined by section 224(3) as meaning “death or serious personal injury, whether physical or psychological”. The short point made in particular by Mr Sedon for LT is that the UT should have had regard to this. It is also pointed out that under the sentencing guidelines, issued pursuant to section 120 of the Coroners and Justice Act 2009 in relation to the supply and control of drugs, the quantity of the drugs supplied is critical to the assessment of harm. Thus a supply of cocaine at five grams is the indicative quantity for category four, which is the lowest category of harm for the offence of supply.

I should say straightaway that I am afraid that I do not consider that the references to the Criminal Justice Act or the sentencing guidelines are of any assistance to the adjudication of the questions before us on this appeal.

There is clearly no rule of law which requires every instance of supply of a Class A drug to be treated as causing serious harm for the purpose of deportation decisions, certainly nothing in the text of paragraph 398(c). Nor however, in my judgment, does the rule exclude from its ambit a case where such a view is taken. Nor again is 398(c) limited to the case where the sentenced passed does not apparently reflect the gravity of the offending. I would reject Mr Sedon’s submission to the contrary. Serious harm is not defined in the Rules.

The Secretary of State does not assert that the Rule requires an overall view to be taken of serious harm. Her case rather is that substantial weight should be accorded by the tribunals to her view that offences of Class A supply cause serious harm. Paragraph 398(c) itself has the expression “in the view of the Secretary of State their offending has caused serious harm”. The Secretary of State draws attention to this court’s recognition in N (Kenya) [2004] EWCA Civ 1094 that the Secretary of State is best placed to consider whether deportation is conducive to the public good (see paragraph 47 of the Secretary of State’s skeleton in DC).

Attention is also directed to the like observation by Lord Slynn in Rehman [2001] Volume 1, Appeal Cases 153 paragraph 8, and to Dyson LJ’s judgment in Samaroo [2001] EWCA Civ 1139, not the least the statement that “the Secretary of State was entitled to regard Class A drug trafficking offences as very serious and ones which are particularly serious and harmful to society”. The reference is given at paragraph 48 of the Secretary of State’s skeleton in DC.

If it were suggested that the tribunals were bound by the Secretary of State’s opinion as to serious harm I would disagree. Such a conclusion would nullify the right of appeal and reduce it to a residual Wednesbury review [1948] 1 KB 223, whereas it is elementary that the right of appeal to the FTT is on the merits (see now section 84 of the Nationality, Immigration & Asylum Act 2002, to which Mr Sedon took us this morning). That position is not shifted by the reference in paragraph 398(c) to the Secretary of State’s view. That feature of the language of the rule cannot, in my judgment, deprive the appellants of their right to a merits appeal. This approach is, I think, supported by Bah [2012] UKUT 00196 and again Rehman [2001] 1 AC 153. But that is not to say that the reference to the Secretary of State’s view is of no significance. The Secretary of State is the primary decision-maker. She has a constitutional responsibility to make judgments as to the force of the public interest in deportation cases. That circumstance has to be balanced against the appellants’ right to a merits appeal. In my judgment, that is to be done by requiring the tribunals in a paragraph 398(c) case, while considering all the facts put before them, to accord significant weigh to the Secretary of State’s view of “serious harm”. They are not to be bound by it, but they are to treat is an important relevant factor. I should add that I cannot see that this approach is in any way undermined by the new provisions in section 117C and D of the Nationality, Immigration & Asylum Act 2002, to which Mr Sedon referred this morning.

Both appellants submit, as I have indicated, that the Secretary of State did not have regard to her own published policy. Version 4.0 of the Criminality Guide was published in May 2013. It contains a list of examples of “serious harm”. The earlier 2012 policy, applicable (as Ms Revill reminded us) at the time of the Secretary of State’s decision in DC, contains a much shorter account. It is right that the instances in the May 2013 policy include a case where the supply of drugs directly causes death; but the guidance plainly is not comprehensive and its terms are in no sense repugnant to the fact that the Secretary of State has adhered to a longstanding policy that suppliers of illegal drugs will be candidates for deportation. Equally there is no doubt but that in these two cases the Secretary of State took the view that paragraph 398(c) applied on that basis. Thus in DC, refusing revocation of the deportation order, the Secretary of State said this:

“It is considered that paragraph 398(c) applies in your client’s case because he has been convicted under the Misuse of Drugs Act 1971 and it is considered that his offending has caused serious harm to the public and his deportation is conducive to the public good.”

In LT’s case the Secretary of State’s deportation decision of 7 August 2013 had this:

“It is considered that paragraph 398(c) applies in your client’s case as he was convicted of a drugs offence, namely supplying a Class A drug. It is the view of the Home Secretary that all drugs offences are, by their nature, serious offences.”

As to that, I can well see that the proposition that all drugs offences are by their nature serious may be questionable, but what matters here is the Secretary of State’s undoubted view that supplying Class A drugs causes serious harm. In my judgment, that is a perfectly reasonable view, though Mr Sedon would not have it so. He submitted today that the Secretary of State would have to provide narrative reasons for taking such a view; reasons which would demonstrate a particular expertise. I do not agree. It is a matter of social and moral judgement. The Secretary of State with her constitutional responsibilities is entitled to take the overall view she did and express it as she has. She was entitled to take that view in both of these cases. Her doing so was not repugnant to her extant policy.

I turn now to the approach of the tribunals. In LT the FTT said this:

“17.

… It is impossible to say that the supply of about, at most a gram of cocaine has caused serious harm. It is also not possible to see the appellant, who committed an offence of simple possession, and two others of offences of stealing from meters as a persistent offender who has shown a particular disregard for the law. It follows that we conclude that the respondent was wrong to rely on paragraph 398(c).

18.

The fact that we have concluded the deportation here is not conducive to the public good is the end of the matter. So that means that the appellant is not liable to deportation,”

They then proceed to consider what would be the position if they were wrong about that.

It seems to me that there are two errors in this passage. First, in paragraph 17 the FTT’s view seems to me entirely untouched by that of the Secretary of State. The Secretary of State’s view should have been taken into account as an important relevant factor. I would add secondly that at paragraph 18 the FTT seems to have considered that the inapplicability, as they saw it, of paragraph 398(c) implied that LT’s deportation would not be conducive to the public good. If that is what they meant, it was a non sequitur. Paragraph 398 does not define the circumstances in which deportation may be thought conducive to the public good. It sets out conditions under which, if 399 and 399(a) do not apply, exceptional circumstances must be shown if the public interest in deportation is to be outweighed. If at the beginning of paragraph 18 the FTT were casting back to their statement at paragraph 15 to the effect that supplying such a small quantity does not make the offenders’ removal conducive to the public good, that observation, I think, is at least somewhat undermined by the earlier comment in the same paragraph that for section 3(5)(a) purposes: “it is enough to show that removal of foreign criminals is not in the public interest.” I think that would be a misconstruction of section 3(5)(a).

Turning to the Upper Tribunal in LT, they opined at paragraph 12, as I have indicated, that “the only conclusion open to the tribunal in the circumstances of this case was that the offending fell within paragraph 398(c)”. This was a view taken on the merits, not, I think, by way of a blinkered legalistic approach to the Rule. Manifestly, in expressing it the Upper Tribunal was agreeing with the view of the Secretary of State. That view is not perverse. The Upper Tribunal were entitled to agree with it. They clearly had in mind all the circumstances of the case, for those had been emphatically spelt out by the FTT. In short, the Upper Tribunal was entitled to conclude as it did. That being so, exceptional circumstances had to be shown pursuant to paragraph 398(c), but the FTT (paragraph 18 onwards) do not appear to have considered exceptional circumstances. The Upper Tribunal’s view that there were none is in my view unimpeachable. LT’s case rested primarily, and perhaps entirely, on his relationship with a British citizen since 2012 or 2013. The Upper Tribunal was plainly entitled on the facts to hold that exceptional circumstances were not shown. I regard this conclusion as wholly consistent with the approach in the well-known case of MF (Nigeria) [2014] Volume 1 WLR 544. Mr Sedon referred this afternoon to paragraphs 34, 39 and 44, which, with respect, I will not set out. The short point is that in the absence of any substantive engagement by the FTT with exceptional circumstances the Upper Tribunal was entitled to remake the decision and form the view that they did. The circumstances considered by the Upper Tribunal at paragraphs 16 to 20 and the conclusions there reached are entirely legitimate. I would dismiss LT’s appeal.

In DC the Upper Tribunal, at paragraph 14 in the passage which I have cited, expressly conclude that “the appellant must come within the provisions of paragraph 398(c)”. Again, that was a conclusion which the Upper Tribunal was entitled to reach in agreement with the Secretary of State, and again exceptional circumstances have to be shown. As to that and the merits of DC’s article 8 claim, the FTT referred to an earlier FTT determination in the history of the case. DC’s article 8 claim rested on his relationship with his younger brother and his mother. His mother gave evidence before the 2013 tribunal. At paragraph 28 that tribunal cited this passage from the earlier FTT determination:

“There is no evidence placed before us to demonstrate that there is anything more than the normal emotional ties between adult family members. There is not a relationship of dependency. There is clearly a relationship of love and familial bond, but that is not unusual. The evidence placed before us demonstrates that the appellant’s mother and brother are able to travel to Jamaica, where it is likely that the appellant will be in the future (they did so in January 2009). The evidence before us shows that the appellant has contributed little to the welfare and upkeep of either his mother or his brother. Although family life exists, it does not go beyond the usual emotional ties.”

Then a little later within the same quotation:

“We remind ourselves that in the 21st century it is far from unusual for siblings and adult children to travel to other countries and to other continents to pursue their future and that they are able to maintain contact with their family members. The appellant’s deportation will not create an interference with family life between adult family members.”

In my judgment, there is simply nothing wrong with this, nor with the Upper Tribunal’s treatment, whether by reference to the earlier 2011 decision or otherwise. It is to be noted by way of postscript, as the FTT in 2013 did, that for much of the time DC has been in the United Kingdom he has been here without leave or in prison. In my judgment, DC’s article 8 claim is extremely weak at best and could not possibly give rise to exceptional circumstances within paragraph 398(c). Indeed, it could not prevail over the public interest in DC’s deportation even if the “exceptional circumstances” requirement did not apply.

I will therefore also dismiss DC’s appeal.

I agree.

I also agree.