KD (Jamaica) v Secretary of State for the Home Department

J U D G M E N T

LORD JUSTICE JACKSON:

1. This judgment is in four parts, namely:

Part 1. Introduction,

Part 2. The facts,

Part 3. The appeal to the Court of Appeal,

Part 4. Decision

Part 1. Introduction

2. This is an appeal against an Upper Tribunal decision allowing a foreign criminal to remain in this country. This is a case in which, if successive Secretaries of State had exercised their powers and complied with the Immigration Rules, the foreign criminal could and should have been deported many years ago. The issue in this appeal is whether the series of delays and administrative errors by officials has led to a situation in which deportation is no longer permissible.

3. The appellant before this court and respondent before the tribunals is the Secretary of State for the Home Department. The respondent in this court and appellant before the tribunals is Mr Dennis. To refer to the parties as appellant and respondent would be confusing; I shall refer to the parties as Mr Dennis and the Secretary of State. I shall refer to the Borders, Citizenship and Immigration Act 2009 as "the 2009 Act". I shall refer to the European Convention on Human Rights as "ECHR". Article 8 of ECHR provides:

"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."

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

Part 2. The facts

(i) Mr Dennis ceased taking drugs after his conviction in January 2007. By May 2012 his risk of re-offending was low.

(ii) AT was the breadwinner of the family. She worked very long hours. Mr Dennis played a key role in looking after the children. That included feeding them, taking them to and from school and so forth.

(iii) The short period of Mr Dennis' absence in March 2012 because of immigration detention caused complete chaos within the family. AT's businesses stopped functioning and the children's behaviour deteriorated, as confirmed in letters from their school.

17. Having weighed up the competing factors, the First-tier Tribunal held that deportation of Mr Dennis would be a disproportionate interference with the article 8 rights of Mr Dennis, AT and the three children. Accordingly, the First-tier Tribunal allowed Mr Dennis' appeal.

18. The Secretary of State was aggrieved by that decision. She appealed to the Upper Tribunal. The Upper Tribunal held a preliminary hearing on 26 September 2012. At that preliminary hearing Upper Tribunal Judge Kekic and Deputy Upper Tribunal Judge Rintoul, sitting together, held that the First-tier Tribunal had made certain errors of law. In particular, the First-tier Tribunal had wrongly treated the low risk of re-offending as a key factor in the tribunal's decision. The Upper Tribunal resolved to remake the decision on Mr Dennis' appeal. The Upper Tribunal stated that it would require at the next hearing further evidence on the extent of Mr Dennis' involvement with the daily life of his children.

19. The Upper Tribunal duly proceeded to hold its second hearing on 23 October 2013. It handed down its decision on 6 November 2013; that is a date which I assume, having corrected an obvious typographical error.

20. At the second Upper Tribunal hearing, Upper Tribunal Judge Kekic (to whom I shall refer as "the judge") received oral evidence from Mr Dennis and AT. The judge found that AT worked extremely long hours and that Mr Dennis undertook, effectively, all of the childcare. At paragraph 83, the judge said this:

"It is because of the particularly close relationship between the appellant and the children, the vital role he plays in their upkeep and their own heavy reliance on and love for him, that I find their best interests are for him to remain with them and for their family life to continue as it is. This is not a paramount interest but it is a primary one. The children are of an age when they need their parents around them. The exchange of letters, emails and telephone calls at their age would be a wholly inadequate alternative to having their father there for them every day."

21. The judge went on to hold that relocation to Jamaica was not a realistic option for AT and the children. Indeed the Secretary of State's counsel had conceded that at the first Upper Tribunal hearing.

22. The judge then recited, with obvious disapproval, the long catalogue of delays and procedural blunders made by the Secretary of State's officials since the date of Mr Dennis' principal conviction in January 2003. She held that Mr Dennis had taken advantage of that long period to achieve rehabilitation, with the result that Mr Dennis' presence no longer presented a risk to the public.

23. The judge held that the Secretary of State's refusal to revoke the deportation order was flawed on procedural grounds. That was because Mr Dennis was unaware of the deportation order and was given no opportunity to make representations as to why it should be revoked. The Secretary of State had reached her decision not to revoke it before receiving any such representations on behalf of the deportee.

24. The judge then carried out a balancing exercise under ECHR article 8. She came to the same conclusion as the First-tier Tribunal. At paragraph 90, the judge said this:

"That brings me to the balancing exercise. I have endeavoured in this determination to set out all the factors for the Secretary of State and for the appellant and to reach a balanced and fair judgment. This is not the usual ordinary case of a convicted non national who flouts the laws of this country, has contributed little to it and who has had several opportunities to put his case to the authorities. This is a man whose case has not been properly dealt with by the Secretary of State, who deportation was made without his knowledge and who never had the chance to put all the representations one would have expected him to have made to the Secretary of State before she took steps against him. It is also a case where the appellant has made good use of the rehabilitation programme offered to him, has mended his ways and stayed drug free for several years. Importantly it is a case where the appellant's deportation would severely affect the lives of four British born nationals. It is for all these reasons that I conclude that the deportation order should be revoked under paragraph 391."

25. Accordingly, the judge dismissed the Secretary of State's appeal. The Secretary of State was aggrieved by that decision, so she has appealed to the Court of Appeal.

Part 3. The appeal to the Court of Appeal

26. By an appellants notice filed on 17 January 2014, the Secretary of State appealed to the Court of Appeal on three grounds. They are, in summary, as follows:

(i) The Upper Tribunal failed to have regard to the new Immigration Rules concerning the deportation of foreign criminals.

(ii) The Upper Tribunal failed to apply the relevant authorities concerning ECHR article 8 in cases concerning foreign criminals.

(iii) The Upper Tribunal failed to have regard to the important public interest in deporting foreign criminals.

There is a high degree of overlap between grounds (ii) and (iii).

27. Three months later, the Secretary of State thought of a new and radically different line of argument, which she had not put to either the First-tier Tribunal or the Upper Tribunal. The Secretary of State added this new contention by way of amendment to the appellant’s notice. I shall refer to it as "the new argument".

28. The new argument ran as follows. The original deportation order was a nullity. The Secretary of State could not revoke a non-existent deportation order. Therefore her decision not to revoke the deportation order was also a nullity. Therefore both the First-tier Tribunal and the Upper Tribunal erred in entertaining Mr Dennis' appeal. There was no immigration decision which could be appealed under section 2 of the Nationality, Immigration and Asylum Act 2002.

29. At the oral hearing on 8 July 2015, Richards LJ, after some hesitation, granted permission to appeal. He granted such permission because of the new argument. He took the view that this argument went to jurisdiction and therefore it merited consideration by the full court. Richards LJ said that if the three original grounds had stood alone he would have refused permission to appeal. But, since the appeal was going forward on the jurisdiction issue, the Secretary of State would also be permitted to argue the three original grounds as well.

30. The hearing of the Secretary of State's appeal has taken place today. Ms Kerry Bretherton QC appears for the Secretary of State. Mr Dennis is not present in court or represented. He has, however, furnished to us two skeleton arguments, which of course we take into account.

31. At the hearing today, Ms Bretherton abandoned the new argument and pursued only the three original grounds. I must now reach a decision on those three grounds.

Part 4. Decision

32. Ms Bretherton rightly dealt first with ground (i). She focused upon paragraph 47 of the Upper Tribunal decision. She submitted that the judge fell into error because he applied the former Immigration Rules which were in force up to 9 July 2012. Ms Bretherton accepts that the Secretary of State was right to apply those rules when she reached her decision in 2012 but, says Ms Bretherton, the Upper Tribunal sitting in October 2013 ought to have applied the later rules, namely those which were operative after 9 July 2012.

33. The court queried in the course of argument this morning whether this was correct in the light of the decision in Edgehill v Secretary of State for the Home Department [2014] EWCA Civ 402. Ms Bretherton needed a little time to consider that point, as did the court. The court therefore adjourned for half an hour so that both counsel and the court could carry out some rapid research. When the court reconvened, Ms Bretherton submitted that Edgehill was not applicable to the present case in the light of later authorities. She referred in particular to the decision of the Court of Appeal in Singh v Secretary of State for the Home Department [2015] EWCA Civ 74 and the decision of the Court of Appeal in YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292; [2015] INLR 405. In relation to YM (Uganda) , Ms Bretherton drew particular attention to paragraphs 38 and 39 of the judgment.

34. Although the application of the transitional provisions is not straightforward, for the purposes of this appeal we are prepared to accept Ms Bretherton's submissions. It therefore follows that Upper Tribunal Judge Kekic made an error in paragraph 47. She considered the appeal under paragraphs 390 and 391 of the old rules. She ought to have considered the case under the new rules which came into force in July 2012.

35. The next issue which arises is whether the error of the judge was material. This takes us to the second and third grounds of appeal. For the purpose of addressing these grounds of appeal, Ms Bretherton took us to paragraphs 390 to 399A of the relevant rules. She points out that paragraphs 398 and 399 do not avail Mr Dennis because he received a prison sentence longer than 4 years. Therefore the provision on which we must focus and upon which the Upper Tribunal ought to have focused is paragraph 390A. Paragraph 390A of the relevant rules reads as follows:

"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."

36. Ms Bretherton submits that if the Upper Tribunal judge had applied that test she would, or may, have held that the public interest in deportation outweighed the factors in Mr Dennis' favour. Accordingly, submits Ms Bretherton, this court should quash the decision below and remit the case to the Upper Tribunal decision for a reconsideration by a reference to the correct test. Ms Bretherton further submits that the judge did not recognise the high public importance attaching to deportation of foreign criminals. She draws our attention to a series of cases in which the Court of Appeal has emphasised that factor.

37. In my view, there are difficulties with this argument. The first difficulty is that the First-tier Tribunal and the Upper Tribunal have made findings of fact which bring this case into the "exceptional" category. It is now 13 years since Mr Dennis' conviction for a serious offence. The Secretary of State delayed inordinately in taking any effectively steps to deport him. Mr Dennis put that period of respite to good use. On the findings of fact made by both tribunals he engaged in rehabilitation programmes and achieved rehabilitation. He established a family of which he was a crucial member. He built up such firm relations with his three children that deportation of the father would be devastating for the family. That is obviously material in relation to section 55 of the 2009 Act as well as ECHR article 8. In my view, the Upper Tribunal has made findings of fact which constitute exceptional circumstances.

38. The next question to consider is this. Did the Upper Tribunal have proper regard to the high public importance of deporting foreign criminals? In relation to this issue, Ms Bretherton cites a long line of authorities which post-date the Upper Tribunal's decision. Clearly the judge cannot be criticised for failing to cite (or perhaps I should say foresee) those particular authorities. The most relevant authority upon which Ms Bretherton relies is MF (Nigeria) v SSHD [2013] EWCA Civ 1192; [2014] 1 WLR 544. The Court of Appeal handed down judgment in MF 2 weeks before the Upper Tribunal hearing in the present case. In MF , Lord Dyson MR, giving the judgment of the court, said this at paragraphs 40 to 44:

"40. Does it follow that the new rules have effected no change other than to spell out the circumstances in which a foreign criminal's claim that deportation would breach his article 8 rights will succeed? At this point, it is necessary to focus on the statement that it will only be 'in exceptional circumstances that the public interest in deportation will be outweighed by other factors'. Ms Giovannetti submits that the reference to exceptional circumstances serves the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who do not satisfy paras 398 and 399 or 399A. It is only exceptionally that such foreign criminals will succeed in showing that their rights under article 8(1) trump the public interest in their deportation.

41. We accept this submission. In view of the strictures contained at para 20 of Huang [2007] 2 AC 167, it would have been surprising if the Secretary of State had intended to reintroduce an exceptionality test, thereby flouting the Strasbourg jurisprudence. At first sight, the choice of the phrase 'in exceptional circumstances' might suggest that this is what she purported to do. But the phrase has been used in a way which was not intended to have this effect in all cases where a state wishes to remove a foreign national who relies on family life which he established at a time when he knew it to be 'precarious' (because he had no right to remain in the UK). The cases were helpfully reviewed by Sales J in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin). The fact that Nagre was not a case involving deportation of a foreign criminal is immaterial. The significance of the case law lies in the repeated use by the European Court of the phrase 'exceptional circumstances'.

42. At para 40, Sales J referred to a statement in the case law that, in 'precarious' cases, 'it is likely to be only in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8'. This has been repeated and adopted by the European Court in near identical terms in many cases. At paras 41 and 42 he said that in a 'precarious' family life case, it is only in 'exceptional' or 'the most exceptional circumstances' that removal of the non-national family member will constitute a violation of article 8. In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual's article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be 'exceptional') is required to outweigh the public interest in removal. In our view, it is no coincidence that the phrase 'exceptional circumstances' is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals.

43. The word 'exceptional' is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the 'exceptional circumstances'.

44. We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence. We accordingly respectfully do not agree with the UT that the decision-maker is not 'mandated or directed' to take all the relevant article 8 criteria into account (para 38)."

39. With these words ringing in my ears, I have read and re-read the Upper Tribunal decision. In a series of passages the judge fully recognised and took into account the high public importance of deporting foreign criminals (see in particular paragraphs 51 to 57 and 71 to 77).

40. Now let me return to paragraph 43 of MF . The test of "exceptional circumstances" according to that paragraph means that very compelling reasons are required in order to outweigh the public interest in deporting Mr Dennis. In the present case, both the First-tier Tribunal and the Upper Tribunal have found very compelling reasons to outweigh the high public interest in deporting Mr Dennis. I therefore find that the Upper Tribunal's error of law is not material.

41. In other words, if the Upper Tribunal had applied the test set out in paragraphs 390 to 399A of the relevant rules, it would inevitably have come to the same conclusion as it did reach under the old rules.

42. The next point to consider is this. Suppose my finding is wrong and the Court of Appeal remit this case to the Upper Tribunal. Two and a half years have now elapsed since the last Upper Tribunal hearing. Yet more time will elapse before the re-hearing in the Upper Tribunal. By then Mr Dennis will have been in this country for an even longer period. His case based on family life and his roots within the community will be even stronger. I see no prospect of the Upper Tribunal on any future occasion rejecting Mr Dennis' article 8 claim.

43. For all of these reasons, I have come to the conclusion that the Upper Tribunal's decision of 6 November 2013 must stand and that the Secretary of State's appeal should be dismissed.

44. LADY JUSTICE KING: I agree.

45. LORD JUSTICE MOORE-BICK: I also agree.